Beyond the Four Corners of the Convention: Expanding the Scope of Jurisdiction of Law of the Sea Tribunals

In several recent Awards, Part XV tribunals constituted under the UN Convention on the Law of the Sea have been called upon to decide claims based on rights and obligations that find their source in a treaty, agreement, or otherwise binding instrument other than the Convention itself, or on customary international law. This article considers the extent to which such claims fall properly within the jurisdiction of a Part XV tribunal, either on the basis of the applicable law provision in Article 293(1) of the Convention, or on the basis of provisions of the Convention that make reference to other relevant rights and obligations.     

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.     

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.     

Why the 2008 Sino-Japanese Consensus on the East China Sea Has Stalled: Good Faith and Reciprocity Considerations in Interim Measures Pending a Maritime Boundary Delimitation

This article examines the 2008 Sino-Japanese Consensus on the East China Sea in the context of the seemingly vague obligations in the Law of the Sea Convention regarding overlapping claims for states to “make every effort to enter into provisional arrangements of a practical nature.” The conclusion reached is that, while the claims of the two states in the East China Sea are based in good faith, there is a lack of reciprocity in the Consensus that helps explain it's fragile nature.     

Highly migratory species in the new law of the sea

Abstract

The 1982 Convention on the Law of the Sea provides for coastal state sovereign rights over all living resources within the exclusive economic zone, but in a separate article makes special provision for so‐called highly migratory species (HMS) that are specifically identified in an Annex to the treaty. This paper examines the basic treaty provisions concerning all fisheries in the EEZ, highlighting the position of HMS, and then devotes detailed consideration to the regulation of fishing for HMS in light of Article 64 and other articles of the treaty. Discussion centers upon the requirements of Article 64, including the duty of cooperation and its subject matter, the meaning and consequence of failure to cooperate, the manner of cooperation under Article 64, and the application of the treaty to enclaves of high seas. Attention is given to the application to HMS of specific obligations under Articles 61 and 62, authority over HMS fishing within archipelagic waters, and the use of fish aggregation devices. There is also consideration of the relationship between the 1982 Convention and customary law regarding HMS, with particular attention to the position vis‐a‐vis the Convention of the United States as a nonsignatory who does not recognize coastal state jurisdiction over tuna but claims sovereign rights over all other highly migratory species within its recently proclaimed exclusive economic zone.     

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.     

Some problems concerning the delimitation of the maritime boundary between the republic of china (Taiwan) and the Philippines

Abstract

This paper analyzes the issue of how the relevant provisions of the 1982 United Nations Convention on the Law of the Sea can be applied to the delimitation of the maritime boundary in the Bashi Channel between Taiwan and the Philippine island of Luzon and in the South China Sea area. It concludes that the Philippines’ extensive territorial sea claim based on the 1898 U.S.‐Spanish Peace Treaty can hardly find any basis in customary rules of international law and the U.N. Convention and, therefore, should be disregarded in such delimitation. On the other hand, the archipelagic principle provided in the Convention can be applied here. With respect to rules of delimitation, it suggests that the equitable principle of the delimitation of the continental shelf, enunciated in the Anglo‐French Continental Shelf Arbitration (1977) and the Tunisian‐Libyan Continental Shelf Case (1982), can mutatis mutandis be applied to the delimitation of the maritime boundary. As an interim solution, the maritime boundary of certain disputed islands in the South China Sea should be declared neutral zones open to nationals of both countries.     

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.     

Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention

This contribution examines and points out the inadequacy of the provisions of Part III of the 1982 Law of the Sea (LOS) Convention to combat marine pollution in straits used for international navigation without infringing the right to transit passage of all user states. It stresses that it is the environmental obligation of all user and strait states to protect the marine environment of straits used for international navigation. To this end, this paper proposes that Part III of the 1982 LOS Convention be reconsidered and a "Guarantee of Freedom of Navigation--Environmental Impact Statement" be adopted by user and strait states.     

Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean

This article recounts the negotiations and emergence of Article 234 concerning ice-covered areas in the UN Convention on the Law of the Sea. As Arctic shipping increases, more vessels and flag states may be subject to the provisions of Article 234, which permit coastal states to both prescribe and enforce special measures to protect the marine environment in ice-covered areas. The history of the Article 234, disclosed partially through declassified U.S. government documents, provides context for implementation of the provision by Arctic coastal states and flag states.     

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.     

Marine scientific research under emerging ocean law

Abstract

The traditional “fifth freedom”; of the high seas—freedom of scientific research—has been considerably eroded by recent coastal state claims to 200‐mile offshore zones. Insofar as these claims include competence to regulate marine scientific research, they are about to be endorsed in the adoption of a new Law of the Sea Convention by the Third U.N. Conference on the Law of the Sea. The author assesses the significance of the claims and examines the features of the “consent regime”; established through the negotiations at the Conference.     

The General Dispute Settlement System of the UN Convention on the Law of the Sea: Overview,Context, and Use

This article provides an introduction to the contributions in this special issue of Ocean Development & International Law. It offers an overview of the dispute settlement provisions of the UN Convention on the Law of the Sea, placing them in the context of dispute settlement in international law generally, and explaining the extent to which they have been used so far.     

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.     

Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration

Historic titles and historic rights have been a complicated issue in the law of the sea both conceptually and practically. The South China Sea Arbitration between the Philippines and China raised important issues regarding the contemporary relevance and validity of historic claims, and the relationship between the Law of the Sea Convention and historic rights. This articles examines historic rights and historic titles in the law of the sea in the light of the South China Sea Arbitration and evaluates the contribution of the Tribunal's Awards to the clarification of these concepts.     

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.     

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.     

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.     

Vietnam: Fisheries and navigation policies and issues

Abstract

Vietnam claims a 12‐nautical‐mile territorial sea, a 12‐nautical‐mile contiguous zone, a continental shelf, a 200‐nautical‐mile exclusive economic zone (EEZ), historical waters encompassing most of the Gulf of Tonkin, and much of the Spratly Islands area. Vietnam's claimed boundaries overlap with those of China, Indonesia, Malaysia, Thailand, and Cambodia, and, in the Spratlys, with those of China, Taiwan, the Philippines, and Malaysia. The area claimed contains significant fisheries resources, and Vietnam has stipulated provisions for access to fish by foreign vessels. Yet issues pertaining to shared and migratory stocks remain to be addressed. Similarly, Vietnam has established regulations governing foreign ships navigating in Vietnamese‐claimed waters, including those designed to protect the environment. But some of these provisions do not conform to the provisions of the 1982 U.N. Convention on the Law of the Sea (UNCLOS). This article reviews Vietnam ‘s fisheries and navigation policies and issues.     

Access to Marine Bioresources: Hitching the Conservation Cart to the Bioprospecting Horse

Bioprospecting involves the collection of biological material for screening for commercially exploitable biologically active compounds or attributes, including genetic information. The authors assess the claim that bioprospecting has the potential to act as a sustainable carrot for biodiversity-rich states to conserve marine environments. They analyze the tensions between the international conventions that address bioprospecting in marine areas: the Biodiversity Convention and the Law of the Sea Convention. In particular, they reject any suggestion that there is a legal presumption in favor of coastal states granting access to marine bioprospectors. They argue that the different approaches taken by the marine scientific research provisions of UNCLOS to fundamental research and research with commercial potential is unrealistic because of the difficulties of drawing the distinction in practice. As a result, the danger is that scientific research will get caught in the hard bargaining increasingly associated with bioprospecting. The authors argue that coastal states will derive greater benefit from research collaborations rather than the distant prospect of winning the product royalty lottery.