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.     

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.     

Implications of the UNCLOS Marine Scientific Research Regime for the Current Negotiations on Access and Benefit Sharing of Marine Genetic Resources in Areas Beyond National Jurisdiction

Abstract

Access to marine genetic resources (MGRs) in areas beyond national jurisdiction (ABNJ) and the sharing of benefits arising out of the utilization of these resources are among the most contentious at the UN Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction. This article examines the applicability of the marine scientific research (MSR) regime of the UN Convention on the Law of the Sea (UNCLOS) to the access and benefit-sharing issues. It concludes that the MSR regime of UNCLOS provides the legal basis for setting up nonmonetary-benefit sharing obligations, including the dissemination of information, data, and research results concerning MGRs at the UN negotiations on marine biodiversity in the ABNJ.     

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.     

Economic Analysis of the Legal Regimes Governing Salvage of Historic Shipwrecks

This article offers an economic analysis of the international and U.S. laws governing the recovery of archaeological data from historic shipwrecks. The framework combines values of treasure salvage and archaeological knowledge. It is suggested that U.S. salvage law, sometimes extended to international waters, gives insufficient protection to archaeological value, but that UNESCO's Convention on the Protection of the Underwater Cultural Heritage goes too far in the other direction. Two other legal regimes (government-salvager and interstate agreements) are shown to have the potential to maximize the social values of historic shipwrecks. It is also suggested that a move towards maximizing social values would be promoted if the U.S. admiralty courts tied the size of salvage awards more closely to the quality of the archaeological work performed.     

Management of the ocean's living resources: An essay review

Abstract

The Third United Nations Conference on the Law of the Sea (UNCLOS III) focused primarily on the peaceful uses of ocean space. Although security issues were and are involved in many peaceful uses of ocean space, they were not explicitly addressed at UNCLOS III nor covered in the U.N. Convention on the Law of Sea. Since security issues are among the major neglected issues of ocean space, it is the purpose of this article to open the discussion of the legal and political aspects of these issues as relating to the law of the sea.     

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。     

Marine scientific research and the new law of the sea

U.S. policy is to encourage freedom of marine scientific research (MSR). This article compares the legal regimes governing the conduct of MSR under the 1958 Geneva Conventions on the Law of the Sea and the 1982 UN Convention on the’ Law of the Sea, which is approaching universal acceptance, and distinguishes MSR from survey activities. It argues that, notwithstanding the erosion of the physical areas of the ocean in which there is freedom of MSR under the Law of the Sea Convention, it provides mechanisms for states’ parties to obtain compliance by coastal states with their duties to grant consent, in normal circumstances, for MSR projects in the exclusive economic zone (EEZ) or on the continental shelf, and to establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably. It also suggests establishment of a national marine scientific research program analogous to the U.S. Freedom of Navigation Program.     

The European economic community and the law of the sea

Abstract

The European Economic Community (EEC) has the competence, to the exclusion of its Member States, to conclude international agreements in important fields, such as fisheries, on which the draft convention on the law of the sea contains provisions. Contracting parties to the future Law of the Sea Convention will not be allowed to make reservations to the convention or participate in it on a partial basis. It follows there‐from that provisions must be envisaged which would allow the EEC to become a contracting party to the convention together with its Member States. This article outlines the legal background for participation by the EEC in international agreements and indicates the main provisions of interest to the EEC in the draft convention prepared at UNCLOS III.     

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.     

The rights of children: public policy statement

Children, who are vulnerable at the start of existence, are a concern shared by nations and cultures. The importance of children's conditions has led 192 out of 194 countries to ratify the UN General Assembly's Convention on the Rights of the Child. The United States has not yet ratified the convention, despite having exercised influence on the drafting of its provisions. Given the global importance of nurturing and protecting children, the Society for Medical Anthropology strongly and emphatically supports that the convention be ratified, and that the U.S. government submit the convention for approval by the U.S. Senate.     

Law of the Sea Issues Between the United States and East Asian States

The United States is the sole superpower in the contemporary world and its role in the development of the law of the sea cannot be ignored. Although having not yet acceded to the U.N. Convention on the Law of the Sea, the United States has contributed to the development of the international law of the sea in numerous ways, including responding to the so-called excessive maritime claims in East Asia and creating new rules of maritime enforcement. This article assesses this recent U.S. practice.     

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.     

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 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 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.     

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.     

International Law and Politics in U.S. Policymaking: The United States and the Svalbard Dispute

This article explains the position(s) of the United States in the maritime dispute adjacent to Svalbard. While the United States has regarded Norway's exclusive claim to the natural resources outside Svalbard as everything from “wishful thinking” to legally plausible, Washington maintains that it may have rights under the 1920 Svalbard Treaty to exploit the maritime zones adjacent to the archipelago. The U.S. reservation is the result of assessments and reassessments of legal considerations as well as national interests.     

A Note on the European Union's Integrated Maritime Policy

This article analyses the characteristics of the Commission on the Limits of the Continental Shelf as an international decision-making institution in the process of establishing the seaward limits of the continental shelf beyond 200 nautical miles from the baselines of the territorial sea under Article 76 of the 1982 UN Convention on the Law of the Sea. The Commission may be compared to scientific bodies established to give advice relating to the implementation of treaty provisions. However, in the exercise of its functions, the Commission also performs legal-administrative tasks, and its recommendations to individual coastal states entail significant legal effects; for instance, as a means of interpretation under the Vienna Convention on the Law of Treaties. The Commission's functions and competencies must be taken into account in classifying and understanding this unique international institution.     

Transit rights and U.S. security interests in international straits: The “straits debate”; revisited

Abstract

The issue of transit rights through international straits overlapped by an extension of territorial seas to 12nm was the focal point of intense debate between the United States and straits states during the formative stages of UNCLOS III. Even though the ICNT provisions on transit through straits reflect basic U.S. navigation and security interests, this paper argues that the issue of transit rights through straits is not a dead issue. Straits states may either refuse to ratify a LOS treaty incorporating ICNT provisions on transit passage, or the attempts to obtain a comprehensive LOS treaty may end in failure. In either case, the United States may be forced to accept a right of innocent passage through international straits. The conclusions of this paper are that the security of transit will be determined by political rather than legal considerations, and that U.S. security interests in straits are not undermined by a right of innocent passage.