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.     

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.     

A Note on the Application of Article 234 of the Law of the Sea Convention in Light of Climate Change: Views from Russia

This note explores the nature of Article 234 of the 1982 UN Convention on the Law of the Sea in light of decreasing Arctic ice cover. Despite various readings and possible interpretations of Article 234, the principal source of the rules of treaty interpretation is the 1969 Vienna Convention on the Law of Treaties. The note concludes, based on treaty interpretation, that there are no legal grounds for changing the Arctic regime based on Article 234 in light of the decreasing ice cover in the Arctic.     

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.     

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.     

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.     

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.     

The 1987 law of yugoslavia on the coastal sea and the continental shelf

Abstract

This article analyzes the recent Yugoslav legislation on the regime of internal waters, the territorial sea, and the continental shelf which was initiated by the ratification of the Law of the Sea (LOS) Convention on behalf of Yugoslavia on November 27, 1985. The highlights of the 1987 law are the clauses strengthening the national security interests in the internal waters of Yugoslavia, the repair of foreign ships in domestic shipyards, the introduction of the system of prior notification of foreign warships entering the territorial waters, and the extension on the continental shelf of sovereign rights over archeological and historical objects. It is maintained that the law has failed to incorporate the novelties of the LOS Convention such as the proclamation of the Yugoslav exclusive economic zone (EEZ) in the Adriatic Sea and the reestablishment of its contiguous zone.     

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.     

Regulating Shipping in the Arctic Ocean: An Analysis of State Practice

The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.     

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.     

Historic Rights in International Law and in China's Practice

Despite the great expansion of maritime zones of the coastal states, consequent to the 1982 UN Convention on the Law of the Sea, state practice indicates continued attempts at using concepts of historic waters and/or historic rights to assert jurisdiction. The Chinese claim to historic rights in its 1998 Law on the Exclusive Economic Zone and Continental Shelf is a new addition to the whole picture. It is the People's Republic of China's clear intention that the historic claim applies to the water areas in the South China Sea wherever China could not establish its 200-nm exclusive economic zone. This article assesses China's historic claim in the context of international law, state practice, and judicial pronouncements.     

The case in international law for Canada's extension of fisheries jurisdiction beyond 200 miles

In March 1995, Canadian fisheries authorities boarded and arrested the Spanish fishing vessel, Estai, outside the Canadian 200‐mile zone on the Grand Banks, an event that served to focus world attention on a dispute that had its origins in the failure of the 1982 United Nations Convention on the Law of the Sea to implement an effective conservation and management regime for fish stocks on the high seas, particularly with respect to fish stocks that straddle coastal states’ exclusive economic zones. This article examines the origins of the dispute, including the allegations relating to overfishing of North Atlantic Fisheries Organization‐recommended quotas, the background to the vessel's arrest, and the subsequent confrontation that occurred, both at diplomatic levels and on the high seas, between Canada and the European Union. An analysis is made of the case in international law for Canada's extension of jurisdiction beyond 200 miles pursuant to the provisions of Section 5 of the Coastal Fisheries Protection Act. Finally, the article examines the implications of the recently concluded Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks for disputes of the kind that arose in the present case.     

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.     

Close the High Seas to Fishing?

The world''s oceans are governed as a system of over 150 sovereign exclusive economic zones (EEZs, ∼42% of the ocean) and one large high seas (HS) commons (∼58% of ocean) with essentially open access. Many high-valued fish species such as tuna, billfish, and shark migrate around these large oceanic regions, which as a consequence of competition across EEZs and a global race-to-fish on the HS, have been over-exploited and now return far less than their economic potential. We address this global challenge by analyzing with a spatial bioeconomic model the effects of completely closing the HS to fishing. This policy both induces cooperation among countries in the exploitation of migratory stocks and provides a refuge sufficiently large to recover and maintain these stocks at levels close to those that would maximize fisheries returns. We find that completely closing the HS to fishing would simultaneously give rise to large gains in fisheries profit (>100%), fisheries yields (>30%), and fish stock conservation (>150%). We also find that changing EEZ size may benefit some fisheries; nonetheless, a complete closure of the HS still returns larger fishery and conservation outcomes than does a HS open to fishing.     

Managing Adjacency: Some Legal Aspects of the Relationship Between the Extended Continental Shelf and the International Seabed Area

The Third United Nations Conference on the Law of the Sea (1973–1982) struck a difficult compromise between the definition of the outer limits of the extended continental shelf (ECS) in relation to the international seabed area (the Area) and the making of payments and contributions by the coastal state in relation to production activities on its ECS in Article 82. The implementation of Article 82 underscores a broader and more far-reaching relationship between the continental shelf, and the ECS in particular, and the Area. In some regions there may be a relationship between the exclusive economic zone and the Area, where there is no ECS. Effectively, the relationship translates into realities and expectations of good neighborliness. This article examines this relationship and the possible approaches for the management of identified challenges.     

The “Arctic Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?

This article examines the so-called “Arctic exception,” Article 234 of the 1982 UN Convention on the Law of the Sea. Article 234 is intended to give the coastal state of ice-covered sea areas the necessary powers to prevent, reduce, and control vessel source pollution, which poses a particular risk to the highly sensitive Arctic marine environment. The aim of this article is to present a thorough interpretation of Article 234 in order to eventually evaluate the provision's significance for Arctic navigation, specifically in the Canadian Arctic and the Northwest Passage.     

Disputed Areas and the 10-Year Time Frame: A Legal Lacuna?

Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.     

An Overview of Fishing Rights

Coastal state management of marine harvests within 200-mile Exclusive Economic Zones was a new and innovative process during the period from the late 1970s through the 1980s. The spread of conservation-focused harvest management was a key step in the evolution of fishing rights, followed in some nations by a second step of creating more exclusive, individual or group fishing rights. The three main forms of more exclusive fishing rights – limited entry permits, individual fishing quotas (IFQs), and local community-based or co-operative harvesting – vary widely in content and detail. But, when successful, they all increase the economic efficiency of fisheries, and they reshape the economic and political landscape of fisheries. All three types, but particularly IFQs, may initiate radical changes in the economic organization of the fishery, ultimately changing who fishes, where and when they fish, the products sold, the balance of power among industry sectors, incentives to support conservation, the size of incomes from fishing, and the location of shore-side economic activity. Changes of this sort are bound to provoke controversy. The controversies over fishing rights take three forms: disagreements over the meaning and intent of fishing rights, disputes over the distribution of rights and associated economic gain, and concern for disruptions imposed on people who are dependent on the “old order”. This paper provides a short review of the underlying concepts, rights systems, and current controversies concerning fishing rights.