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.     

UNCLOS III and conflict management in straits

Abstract

The legal regime articulated for international straits in the United Nations Convention of 1982 is a significant milestone in the reconciliation of competing interests attendant upon navigation in international straits. However, the author also submits that the refinement of respective rights and obligations of states in international straits can only be harmonized through the process of claim and counterclaim, a slow and somewhat tedious process. Extremely difficult, yet highly important questions deserve thoughtful analysis in the context of the 1982 Convention's territorial sea and straits provisions.     

Peacetime military activities in the exclusive economic zone of third countries

Abstract

Although the 1982 U.N. Convention on the Law of the Sea reaffirms the freedoms of navigation and overflight in the Exclusive Economic Zone (EEZ), its language is flexible enough to be construed as restraining military activities of third countries in the zone. On the other hand, the Convention allows enough latitude of interpretation to include the right to conduct naval activities in a foreign EEZ. The peaceful‐purposes clauses of the Convention do not, in this respect, create any new obligations beyond the obvious general principle of banning the use of force in international relations. The reluctance of UNCLOS III to adopt a clear and unambiguous solution of the problem is likely to result in disputes between naval powers, primarily developed states, and coastal states of the Third World over the attribution of rights to military uses of the EEZ, especially with regard to naval maneuvers, weapon tests, and emplacement of military devices in this zone.     

Chile's Presential sea proposal: Implications for straddling stocks and the international law of fisheries

Abstract

Despite rapid evolution in international fisheries law and establishment of the exclusive economic zone (EEZ), straddling stocks still remain susceptible to heavy harvesting in high seas areas by distant‐water fishing states there by undermining coastal state management. The notion mar presencial (presential sea) has recently been proposed by Chile as a solution for the problem of straddling stocks. The presential sea concept was nationally designed and promoted to curtail such foreign fishing in areas adjacent to Chile's EEZ. This article examines the presential sea as a geostrategic concept, its justification for being, and the question of its permissibility under contemporary international fisheries law. Attention is also given to recent international developments that challenge the legal viability of the presential sea concept. The authors conclude that if this concept were to be widely adopted by coastal states, the traditional freedom to fish on the high seas might be severely compromised. The preferable legal solution is to work within the parameters set out by the 1982 UN Convention on the Law of the Sea, more particularly through bilateral negotiations between coastal states and fishing states, as well as regional fishery commissions that could manage activities in the region.     

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.     

Creeping jurisdiction beyond 200 miles in the light of the 1982 law of the sea convention and state practice

Abstract

This article attempts a complex examination of problems pertaining to actual and potential extensions of coastal state rights and jurisdiction beyond the limit of 200 miles in the light of 1982 Law of the Sea Convention and state practice. Extension of the continental shelf regime, in the context of its outer limit beyond 200 miles, the entitlement of rocks to this limit, and the scope of coastal state rights and duties, is analyzed first. It is followed by discussion of the extension of the exclusive economic zone (EEZ) or fishery zone regime, which involves extension of certain coastal state fishery rights on the one hand, and the right of intervention in cases of maritime casualties and the liability regime for oil pollution damage on the other hand. Attention is also paid to presently speculative extensions of both regimes as a consequence of sea level rise. The author concludes that, if a continuing nontreaty situation deprives recourse to compulsory dispute settlement, the worst‐case scenario of spatial extension of the entire EEZ regime to the outer edge of the continental margin could not with certainty be excluded.     

Enhancing Port State Control in Polar Waters

Abstract

In recent years, the role of Port State Control (PSC) with respect to polar navigation has become increasingly important. However, international rules for PSC of fishing vessels plying polar waters are incomplete and uniform inspection guidelines have not yet been adopted, nor has a coordinated mechanism been created. This article argues that fishing vessels should be incorporated into the Polar Code and that at the practical level, states should promote the application of the Port State Control Officer Guidelines adopted under the Paris Memorandum of Understanding and encourage cooperation among the different PSC organizations that cover polar waters.     

Implementation of the LOS convention: Options,impediments, and the ASEAN states

Abstract

The six states of ASEAN are faced with the problem of interpreting and implementing the 1982 Law of the Sea Convention. One of the factors to be considered in implementation is the possible impediments to implementation that may exist. Nine different types of impediments are outlined with examples drawn from the ASEAN states. Despite the various impediments that may exist for the ASEAN states none of the impediments are serious enough to force a state to be unable to ratify the LOS Convention.     

International cooperation in salmon fisheries and a comparative law perspective on the salmon and ocean ranching industry

Abstract

The salmon industry has steadily developed during the last two decades, leading to an increasing awareness about the legal problems that need to be solved. Both production in ocean ranching and in captivity have prompted the enactment of important rules of international and domestic law. While international law has provided for a basic regulatory framework, embodied in the United Nations Convention on the Law of the Sea and a number of regional and bilateral treaties, domestic law has concentrated on the specific technical issues that relate to conservation, fishing rights, and organization of the industry generally.

The article discusses the aggregate of legal rules applicable to salmon production, including the comparative law perspective emerging from the national legislations of the main producers in the world. Various legal and economic models are identified and their incidence on the industry is examined in light of actual experiences. The rules of international law in the field are becoming consolidated, and domestic legislation is contributing new insights into the matter while, in addition, exercising a strong influence in the formation of customary law.     

A review of the enforcement regime for vessel‐source oil pollution control

Abstract

The purpose of this article is to identify the currently applicable international law intended to regulate vessel‐source pollution. Part I delineates the elements relevant for this study. Part II discusses the development of a sequence of incremental conventions. Part III examines the significance and weaknesses of the 1973 MARPOL Convention with its 1978 Protocol and of the 1982 UN. Convention on the Law of the Sea. Part IV explores alternative and/or supplementary legal approaches for handling the vessel‐source oil pollution threat.     

The fishing conservation and management act of 1976: Economic issues associated with foreign fishing fees and foreign allocations

Abstract

In April 1976 President Ford signed Public Law 94–265, the Fishery Conservation and Management Act of 1976. As this legislation comes of age, a far‐reaching and new approach to the management of our nation's fishery resources will be set into motion. Some of the most significant provisions of the Act are the restriction on the amount of foreign fishing, the charging of fees for foreign fishing privileges, and an enormous expansion of the area over which the United States exercises fisheries management control. This article briefly explains why the Act came into existence and what its key provisions are. It outlines the proposed foreign fee system for FY1977 and discusses the important economic impacts upon the United States from foreign fishing fees and restricted amounts of foreign fishing. It then examines possible policy questions and the important economic information necessary to assess them.     

Civil Liability and Compensation for Damage in Connection With the Carriage of Hazardous and Noxious Substances: Chinese Perspective

Abstract

The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (the HNS Convention) has not entered into force. In China, a two-tier compensation regime has been established for vessel-source oil pollution damage, but this regime does not address damage in connection with the carriage of HNS by sea. This article examines the Chinese law approach to civil liability and compensation for damage in this respect, and discusses whether there is an adequate framework in place to address issues that may arise.     

Northwest atlantic fisheries arrangements: A test of the species approach

Abstract

The United States government has advanced a proposal for a “species”; approach to the resolution of problems in the management and distribution of living marine resources. Under this approach, the management and distribution of the stocks of coastal species of fish would be handled by negotiation among interested parties on a stock‐by‐stock basis, with certain preferential rights accorded to the coastal state. This approach is now being tested in the developments taking place in the arrangements for the Northwest Atlantic fisheries. Here, IS nations agreed to divide up among themselves the annual yields of 14 separate stocks of fish. In addition, it has now been proposed that there be a limit on the total amount of fishing effort and a division of the total among states. The controls are based solely on the physical attributes of fishing and fail to take account of economic consequences. Because of this, questions can be raised about the viability of the arrangements and of the “species”; approach to the international law of fisheries.     

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.     

In the Same Boat? A Comparative Analysis of the Approaches of Russia and Canada in the Negotiation of the IMO’s Mandatory Polar Code

Abstract

In the field of Arctic shipping, Canada and the Russian Federation have enacted extensive unilateral national regulations cognizant of Article 234, UN Convention on the Law of the Sea. On the global level, both states have been important actors in negotiating the International Maritime Organization’s mandatory Polar Code, a legal instrument with implications for regulations at the national level. This article compares and contrasts the approaches, positions, and arguments of Canada and Russia especially regarding national systems to control navigation and vessel-source pollution. The results suggest different emphases stemming from the two states’ political and economic realities and capacities.     

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.     

Fishing negotiations at the Third United Nations Conference on the Law of the Sea

Abstract

One of the major consequences of the negotiations at the Third United Nations Law of the Sea Conferences (UNCLOS III) was a substantial reduction of the international commons in which the freedom to fish existed and the creation of what was supposed to be a sui generis zone, the 200‐mile exclusive economic zone (EEZ), but within which the coastal state would have a virtual monopoly on the right to allocate resources. How this was done at UNCLOS III is analyzed using a model that shows the progress over time on major issues of the parliamentary‐diplomatic‐style negotiation in which consensus was required for an acceptable outcome. The shifting positions of major states and bargaining groups as they maneuvered toward consensus is examined on the questions of the creation of the 200‐mile EEZ, the rights of foreign fishermen in the EEZ, the fishing rights of geographically disadvantaged states in the EEZ, and the management of highly migratory species. The analysis shows that the new ocean regime, created through complex tradeoffs and strenuous issue‐by‐issue bargaining, was critically influenced by fisheries issues.     

Mine warfare at sea—some legal aspects of the future

Abstract

The paper addresses some of the problems that new weapon technology at sea are posing to traditional legal concepts, and to illustrate these, the sea mine has been taken as the topical weapon. One of the difficulties is that since the Hague Peace Conference of 1907, through the Covenant of the League of Nations and the Paris Treaty of 1928 renouncing war as an instrument of national policy up to the situation after the Charter of the United Nations, it is improbable that any nation will ever again declare war. In the absence of declared war, it is probably most helpful to categorize the threat or use of armed force as either a delict, a sanction, or self‐defense. The use of mines in any legal context gives rise to two fundamental questions:

a. Is the mine a lawful weapon?

b. If it is a lawful weapon what are the legal restraints on its use, if any?

The paper asserts, inter alia, that the Hague Convention No VIII Relative to the Laying of Automatic Submarine Contact Mines does not prohibit the mine as then known, and that the legal status of mines as a weapon of war has not fundamentally changed since 1907.     

磁导航技术辅助麦芒仿生鼻肠营养管的设计和初步实验研究

目的:为解决现有液囊鼻肠营养管置管过程中漂浮时间长、成功率低的问题,设计了基于磁导航技术辅助的磁性麦芒仿生鼻肠营养管。方法:分析了麦芒在管腔内能够快速单向移动的力学原理,结合磁外科相关技术,提出了鼻肠管头端内嵌磁性麦芒仿生结构设计方案和磁导航技术辅助快速推进的操作方法,并在体内外模拟了其运动情况。结果:体外管路模拟实验提示麦芒仿生结构在外力作用下能够快速移动。家兔肠道实验显示,磁性麦芒仿生结构在导航磁体引导下,能够在肠道内快速单向移动。结论:磁性麦芒仿生结构在导航磁体的引导下能够实现消化道内快速单向移动,该设计进一步优化有望用于临床。     

New concepts in the law of the sea

Abstract

Current ocean law negotiations reflect conflicts between two old and competing approaches: the view that the coastal state should control activities in any large adjacent ocean area, and the view that most of the ocean should be left open to the free use of all nations. Both approaches are laissez‐faire, leave the distribution of benefits to arbitrary factors, and are based on national exclusivity. In the negotiations this conflict is exhibited in competing claims regarding navigation, mineral resources, fishing, environmental protection, and strategic uses. A possible resolution has emerged in the concept of the whole ocean as a common resource of humankind, according to which no individual state has a right to benefit from the ocean except pursuant to arrangements sanctioned by the community, and rights to benefit are determined not arbitrarily but by membership in the community. The regime now likeliest to be produced by such an approach includes (1) a narrow territorial sea and various navigation guarantees, (2) a wide coastal band coupling coastal state managerial functions with permanent international prerogatives, and (3) purely international manage‐ment of the deep seabed.