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.     

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.     

The Curious Case of Article 281: A “Super” Provision within UNCLOS?

This article discusses the issue of treaty regimes in parallel to the United Nations Convention on the Law of the Sea in respect of peaceful settlement of disputes concerning the interpretation or application of the Convention. The duality in relevancy of such disputes to two treaties at the same time would have begged the question about which treaty should be applied to settle them, but UNCLOS has a clear, conflict-of-law style rules in place to address the question. Article 281(1) is one such rule, and, with its exclusionary effect, stands out as a super provision of the Convention.     

Declarations and Statements with Respect to the 1982 UNCLOS: Potential Legal Disputes between the United States and China after U.S. Accession to the Convention

This article discusses the implications of U.S. accession to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) for the future development of Sino-American relations in the areas of ocean law and politics. The declarations and understandings contained in the Senate Resolution of Advice and Consent to U.S. Accession to the UNCLOS are examined in detail in the context of previous maritime conflicts between the United States and China.     

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.     

Coastal and Port Environments: International Legal and Policy Responses to Reduce Ballast Water Introductions of Potentially Invasive Species

Marine transportation moves the vast majority of cargo volume in international trade. Ballast water loaded in one port to stabilize ships for a safe voyage contains local aquatic species that are later discharged into other ports, where they are potentially invasive and can cause ecological, socioeconomic, and human health consequences. This article discusses the new Global Ballast Water Convention, what the Convention suggests about the International Maritime Organization (IMO), and its relationship to the United Nations Convention on the Law of the Sea. The article also considers implementation of the Ballast Water Convention by presenting a decision support model that allows regulators to explore tradeoffs between costs and benefits of new technologies and derive optimal reductions of ballast-water-borne biological pollutants.     

The Indonesian Legal Framework on Baselines,Archipelagic Passage,and Innocent Passage

As an archipelagic state, Indonesia is faced with a wide range of potential maritime security threats. This article analyzes the existing Indonesian legislation on baselines, archipelagic passage, and innocent passage in accordance with the 1982 United Nations Convention on the Law of the Sea. The article demonstrates the challenges that exist in implementing the key navigational rights laws.     

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 New Paradox in Marine Scientific Research: Regulating the Potential Environmental Impacts of Conducting Ocean Science

Concerns about the negative effects of marine scientific research are in clear juxtaposition to the beneficial role that scientific knowledge plays in enhancing the understanding of the oceans and protecting the marine environment. This presents a regulatory paradox that is examined in this article in light of the legal framework in the 1982 United Nations Convention on the Law of the Sea. The article traces how these general principles in the Convention are elaborated in soft law instruments for the promotion of environmentally sustainable research practices. It also looks at an example of state practice in this area by examining regulatory measures instituted in the Canadian Endeavour Hydrothermal Vent Marine Protected Area.     

Can the United States Establish the Outer Limits of Its Extended Continental Shelf Under International Law?

Although most provisions of the United Nations Convention on the Law of the Sea are regarded customary international law and the United States views most of its provisions as such, the outsider status of the United States causes problems in some areas, especially concerning the continental shelf beyond 200 nautical miles. This article asks whether it is possible for the United States to establish the outer limits of its continental shelf beyond 200 nautical miles in line with international law without becoming a state party to the convention, and if that is possible, how could the United States proceed?     

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.     

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.     

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 U.S.-Led Proliferation Security Initiative and UNCLOS: Legality,Implementation, and an Assessment

This article examines the relationship between the U.S.-led Proliferation Security Initiative (PSI) and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It attempts to answer the questions of whether the PSI is legal or illegal under UNCLOS and whether U.S. accession to UNCLOS would enhance or create difficulties for the implementation of the PSI. The author concludes that U.S. accession to the Convention would not affect adversely the implementation and effectiveness of the PSI. On the contrary, accession to UNCLOS could help increase U.S. credibility and leadership in dealing with the threat to international peace and security posed by weapons of mass destruction proliferation. It also suggests that all the relevant information needs to be gathered and examined carefully in order to answer the question of whether a PSI interdiction action is legal under UNCLOS or not.     

Synthetic biology: mapping the scientific landscape

This article uses data from Thomson Reuters Web of Science to map and analyse the scientific landscape for synthetic biology. The article draws on recent advances in data visualisation and analytics with the aim of informing upcoming international policy debates on the governance of synthetic biology by the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) of the United Nations Convention on Biological Diversity. We use mapping techniques to identify how synthetic biology can best be understood and the range of institutions, researchers and funding agencies involved. Debates under the Convention are likely to focus on a possible moratorium on the field release of synthetic organisms, cells or genomes. Based on the empirical evidence we propose that guidance could be provided to funding agencies to respect the letter and spirit of the Convention on Biological Diversity in making research investments. Building on the recommendations of the United States Presidential Commission for the Study of Bioethical Issues we demonstrate that it is possible to promote independent and transparent monitoring of developments in synthetic biology using modern information tools. In particular, public and policy understanding and engagement with synthetic biology can be enhanced through the use of online interactive tools. As a step forward in this process we make existing data on the scientific literature on synthetic biology available in an online interactive workbook so that researchers, policy makers and civil society can explore the data and draw conclusions for themselves.     

The Economics of International Cooperation in the Apprehension and Prosecution of Maritime Pirates

Article 100 of the UN Convention on the Law of the Sea requires parties to “cooperate” against maritime piracy, but how this cooperation is to be achieved is undefined. Enforcement is a public good—creating uncompensated benefits for others, thus suffering from free rider problems. The analysis in this article explains why more pirates captured are released than prosecuted, why the United Nations and the International Maritime Organization are seeking to reduce enforcement costs, why some in the shipping industry want to apply the 1988 Convention Against Terrorism at Sea, and why still others want to move prosecution of pirates from national courts to an international court.     

A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean

This article points out some of the issues that may arise during the delimitation of maritime boundary in a sea area where coastal states have proclaimed various maritime zones. Issues considered include delimitation in the presence of overlapping or coincident zones, the role of existing boundaries, use of all-purpose maritime boundaries, and the delimitation of future zones. Special reference is made to the Mediterranean Sea where coastal states have advanced various claims consisting of zones sometimes different from the ones provided for in the 1982 United Nations Convention on the Law of the Sea.     

Precautionary Coastal States’ Jurisdiction

Throughout the life of the 1959 Antarctic Treaty there has been considerable development in the law of the sea. Negotiated following the 1958 First United Nations Conference on the Law of the Sea, at which the customary international law concepts of the territorial sea and continental shelf were codified into treaty law, the law of the sea has since developed through state practice and most importantly through the 1982 United Nations Convention on the Law of the Sea. Whatever the merits of examining the interaction between Antarctica and the law of the sea have been in the past, there is much to suggest that the general significance of such issues is growing, especially as states seek to determine the outer limits of their continental shelf claims and in doing so determine Antarctic baselines. This article examines these issues from a general law of the sea perspective, taking into account the impact of the Antarctic Treaty while reviewing Australian practice in particular.     

Governing the Bering Strait Region: Current Status,Emerging Issues and Future Options

This article examines the existing governance arrangements applicable to the Bering Strait Region (BSR), assesses the emerging needs for governance in the region, and considers options for addressing these needs. Widely regarded as a critical chokepoint between the North Pacific and the Arctic Ocean (and its marginal seas), the BSR is subject to a variety of regimes, ranging from global constitutive arrangements (e.g., 1982 United Nations Convention on the Law of the Sea) to bilateral operational arrangements. The growth of human activities in the BSR, associated with transformative changes occurring in the Arctic in recent years, is generating new needs for governance. This article reveals options that can be used or ignored by decision makers, in contrast to recommendations that may involve advocacy, with the single objective of contributing to informed decision making in this realm.