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.     

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 Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China Sea Arbitration: A Critique

The interpretation of Article 121(3) of the 1982?U.N. Convention on the Law of the Sea (UNCLOS) was a key part of the Sino-Philippine Arbitration on the South China Sea Award issued in July 2016. This article uses the principles of treaty interpretation codified in Article 31 of the 1969 Vienna Convention on the Law of Treaties to evaluate the interpretation process. The Tribunal paid little attention to the text such as “rocks” in the plural form and overlooked the context of Article 121(3). The travaux préparatoires identified by the Tribunal was based on materials of doubtful weight.     

Due Diligence and Overlooked Evidence in the South China Sea Arbitration: A Note

Abstract

In the South China Sea Arbitration, the Tribunal decided that China had not breached the due diligence obligation to protect and preserve the marine environment under Articles 192 and 194(5) of the United Nations Convention on the Law of the Sea concerning Chinese fishers fishing with explosives, but that China had breached the same obligation regarding Chinese fishers harvesting endangered species. This article looks at how the Tribunal interpreted and applied the due diligence obligation and argues, from a Chinese perspective, that there were facts overlooked by the Tribunal that China could have presented to counter the evidence of the Philippines, which might have been enough to affect the decision on destructive fishing had China participated in the Arbitration.     

Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?

This article examines the conclusion in the decision of the Arbitral Tribunal in the South China Sea Case that straight baselines may not be used to enclose off-shore archipelagos unless they meet the criteria set out in Articles 46 and 47 of the Law of the Sea Convention.     

Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ

On 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered its first full-bench Advisory Opinion. In its reply to the request of the West African Sub-Regional Fisheries Commission the ITLOS found that Arts. 62(4), 58(3), 192 of the United Nations Convention on the Law of the Sea contain obligations for a flag state to ensure that vessels flying its flag do not engage in illegal fishing in the exclusive economic zones of coastal states. The Advisory Opinion has widely been praised for bringing clarity to the inadequate international fisheries law regime. This article undertakes to analyze the ITLOS's interpretive approach, expose interpretive deficiencies, and offer possible explanations for some of the outcomes where the ITLOS itself did not do so.     

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.     

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.     

The Spratly Islands as a Single Unit Under International Law: A Commentary on the Final Award in Philippines/China Arbitration

This article addresses the question whether Spratly Islands is “in law a unit … [such] that the fate of the principal part may involve the rest” (Max Huber). The question was pivotal in the Philippines/China Arbitration. The Tribunal addressed it from the perspective of the archipelago provision in the Law of the Sea Convention. This article approaches the question from the perspective of the Japanese Peace Treaty.     

A Note on the M/V “Louisa” Case

In the M/V “Louisa” case of 28 May 2013, the International Tribunal for the Law of the Sea held that it had no jurisdiction, even though it had established prima facie jurisdiction at the provisional measures stage. The M/V “Louisa” case thus gives rise to questions regarding the relationship between prima facie jurisdiction and jurisdiction on the merits. Moreover, the M/V “Louisa” Judgment also sheds some light on the applicability of the doctrine of abuse of rights provided in Article 300 of the UN Convention on the Law of the Sea.     

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.     

Reflections on the Interpretation and Application of Article 121(3) in the South China Sea Arbitration (Merits)

The 2016 South China Sea Arbitration Award provided a detailed review of the interpretation of Article 121(3) of the U.N. Convention on the Law of the Sea. According to the Tribunal, Article 121(3) performs a preventive function by disabling tiny features from unfairly generating enormous entitlements to maritime space that does not serve the local population. This provision also contributes to safeguarding of the Common Heritage of Mankind. The Tribunal's interpretation seems to reflect development of the law of the sea toward protection of the common interests of the international community. However, since the Tribunal's interpretation is not anchored in state practice and the jurisprudence, whether the interpretation can be generalized needs careful consideration.     

The group of 77 and the establishment of the international sea‐bed authority

Abstract

The Group of 77 favors the establishment of a strong International Sea‐Bed Authority with powers to regulate and control all the activities of exploration and exploitation of the “common heritage of mankind,”; referred to in the draft articles as “the Area.”; The Authority itself is to be composed of an Assembly as the supreme policy‐making organ in which the Contracting Parties are to be represented on the basis of sovereign equality; a Council as the executive organ implementing the policies emanating from the Assembly, to be composed of at least 36 states elected to ensure representation of clearly defined special interests and the principle of equitable geographical distribution, and to eschew any form of veto mechanism in its decision‐making process; the Enterprise as the operational organ through which the Authority is to undertake direct exploitation of the Area along with the other entities given access to the Area; and a Secretariat as well as certain subsidiary bodies of the Council.

The Group of 77 takes the position that the Convention itself and the Basic Conditions governing the entire process of exploration and exploitation of the Area must leave the Authority an appreciable margin of discretion in managing the Area for the benefit of mankind as a whole. Thus, a limited category of judicially reviewable decisions of the Authority is envisaged so long as such review does not challenge the legislative powers and resource policy decisions of the Authority. A Sea‐Bed Tribunal is no longer necessary as an organ of the Authority, since the work of such a Tribunal could be done by the special Sea‐Bed Disputes Chamber of the Proposed Law of the Sea Tribunal dealing with disputes arising under the Convention as a whole.     

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 basic structure of the disputes settlement part of the law of the sea convention

Abstract

The Draft Convention on the Law of the Sea contains an elaborate and unique system for the settlement of disputes concerning the world ocean that is both flexible and firm. The evolution and development of this disputes settlement system began later than the work done in Committees I, II, and HI, of the Conference and was largely due to the initiative and leadership of Hamilton Shirley Amerasinghe, President of UNCLOS III. The major features of the emerging disputes settlement system are: a general and comprehensive system including adjudicatory procedures; a multiplicity of forums for disputes settlement with concurrent attempts at maintaining some uniformity in the jurisprudence of the law of the sea; adoption of a flexible system which permits states the choice of mode or venue for settlement; abandonment of the original idea of a separate and special “Sea‐Bed Tribunal”; the decision of the Conference to make disputes settlement an integral part of the Convention; the emergence of the compulsory resort to conciliation for disputes in the EEZ; and the designation of categories of disputes which may be submitted only to the Sea‐Bed Disputes Chamber.     

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 Practice of Archipelagic States: A Study of Studies

The 1982 UN Convention on the Law of the Sea contains provisions governing the maritime claims of states, including special provisions for archipelagic states. To date, 20 states have utilized these provisions by enacting archipelagic baselines, within which these states claim sovereign waters subject to the navigational rights of other states. This article systematically examines the degree to which the archipelagic claims of these states have complied with the requirements in the Law of the Sea Convention.     

Antarctica and the law of the sea: An introductory overview

Abstract

This article examines the potential for conflict between the Antarctic Treaty regime and the Convention recently produced by the Third United Nations Conference on the Law of the Sea. Should the UNCLOS III Convention enter into force, at least six issue‐areas seem susceptible to future controversy in Antarctic waters, namely (1) seaward territorial limits; (2) resource management and conservation; (3) local environment protection; (4) marine scientific research; (5) deep seabed mining; and (6) archipelagic‐island regimes. Accordingly, each issue‐area is assessed as to its relevance for the Southern Ocean vis‐a‐vis the Antarctic Treaty parties, with a particular view towards signaling possible problems which involve conflict of interest and overlapping jurisdiction.     

The Timor Sea Conciliation (Timor-Leste v. Australia): A Note on the Commission's Decision on Competence

The Timor Sea Conciliation is the first experience with the compulsory conciliation under Annex V of the 1982 United Nations Convention on the Law of the Sea. The Conciliation Commission addressed the objections to its competence as a preliminary matter and rendered a separate decision. This article examines the approach of the Conciliation Commission in dealing with its competence issues and the understandings of the Conciliation Commission as regards the relevant provisions of the 1982 Convention.     

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.