The United States and the revision of the 1982 convention on the law of the sea

Abstract

It may now be possible to breach the 1982 Law of the Sea Convention impasse. The UN Secretary‐General's informal consultations have opened realistic discussions on the deep seabed regime. Many important changes have occurred since the Convention was signed. Dramatic developments have taken place in the international community. Nations now appreciate the limited potential of deep seabed mining. While United States reliance on customary law provides some benefits, other more important U.S. interests cannot be protected absent entry into force of the Convention with widespread participation. Many alternative procedures are available to forge an accommodation. The approach taken in the Secretary‐General's consultations is to make specific changes in deficient articles. Alternatively, the present regime might be jettisoned in favor of a framework regime. Such a regime would preserve only the essential basic policies of the Convention's seabed regime. It would contain a system for constructing a viable mining system if a deep seabed regime is needed.     

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.     

American Security and Law of the Sea

With the election of President Barack Obama and renewed interest in the Law of the Sea Convention inside the United States, this article pulls from obscurity the key U.S. declarations, understandings, and conditions of ratification to the Treaty, considers their context and meaning for U.S. security interests, and helps to place them into the lexicon of oceans law and policy that informs the greater dialogue of international security and strategy.     

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.     

Deep seabed mining: A definition of the problem

Abstract

The prospects for deep seabed mining in this century appear remote. The U.N. Convention on the Law of the Sea was closed for signature on December 10, 1982. As of that date, 155 nation‐states and four entities had signed, but not the United States and some others. Since that time, the United States has endeavored without much success to develop a “Reciprocating States Agreement”; that would legitimate seabed mining with or without the U.N. Convention. On the other hand, the Preparatory Commission has met six times and is making only modest progress without the participation of the United States, the United Kingdom, and the Federal Republic of Germany.     

The Legal Status of the Russian Baselines in the Arctic

The validity under international law of the straight baselines the Soviet Union established in the Arctic and that Russia maintains are examined. For the purpose of comparison with the Russian regime, the issues surrounding the international regimes of baselines are analyzed. The results are then compared, as well as the practice of the main opponent with navigational interests in the area, the United States. It is found that while many of the enclosures fail the traditional criteria for establishing straight baselines and basepoints as well as the traditional criteria for enclosing bays, due to the moderate degree of deviation, largely unopposed by other states, the Russian practice cannot be said to be inconsistent with international law. At the same time, although the waters enclosed can be claimed as internal waters under the Anglo-Norwegian Fisheries Case , Article 5(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone (TSC), and Article 8(1) of the 1982 United Nations Convention on the Law of the Sea (1982 Convention), they are still subject to TSC Article 5(2) and 1982 Convention Article 8(2). If the waters enclosed thus could not previously have been considered as internal waters, the right of innocent passage exists.     

United States interests in the Arctic region

Abstract

The Arctic is a vast, forbidding and relatively unknown region. It covers about 14 million square kilometers of which 5.2 square kilometers is ice covered in summer and 11.7 million square kilometers in winter. It is a highly strategic region, and is the shortest distance between the two superpowers. It also contains vast resources, including oil, gas, and coal. Over 830,000 native peoples inhabit the Arctic Rim and have a culture that goes back 4500 years. The United Nations Convention on the Law of the Sea is generally applicable to the Arctic Ocean and has a special provision for ice‐covered areas. However, there are several unresolved jurisdictional and navigational problems between the United States and other Arctic Rim States concerning the Arctic's waters, including the Chukchi Sea, the Beaufort Sea and the Northwest Passage. Although the United States has paid some attention to the Arctic region in recent years, the Arctic still remains a relatively low priority interest for national policy and operational programs.     

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.     

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 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.     

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.     

The law of the sea and the U.S. exclusive economic zone: Perspectives on marine transportation and fisheries

Abstract

It has been argued that the issuance of the U.S. Exclusive Economic Zone (EEZ) Proclamation could lead to difficulties in the management of our coastal resources. This paper will examine the consequences of a U.S. EEZ for fisheries and marine transportation. For each sector consideration will be given to the inconsistencies which exist between the United Nations Convention on the Law of the Sea, the U.S. Proclamation, and existing U.S. legislation. The problems and opportunities presented by these inconsistencies are discussed. The authors conclude that, while some modifications of U.S. policy may be required, wide‐ranging changes are neither likely nor needed.     

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 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.     

Anadromous species and the new international law of the sea

Abstract

This article examines the evolution of international law relating to anadromous species, focusing exclusively on salmon and primarily considering the period since World War II. The discussion concerns major international harvesting in the western North Pacific, eastern North Pacific, and the North Atlantic. Unilateral actions are also described. Special attention is given to the relevant articles of the 1982 Convention on the Law of the Sea and to developments since its conclusion. Evidence is assessed for considering that the customary international law of the sea now recognizes the authority of the state of origin of salmon to prohibit high seas harvesting of salmon.     

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.     

The Salish Sea Boundary Straits: “Historic Internal Waters” or Territorial Seas?

The legal classification of the boundary straits of the Salish Sea between the western United States and Canada as either historic internal waters or territorial seas, subject to a right of innocent or transit passage, has been the subject of periodic debate within the U.S. government since the United States and Great Britain entered into the 1846 Oregon Treaty. As neither state has made an express public claim of historic title to the waters, any evidence for such a claim must be sought in less explicit and sometimes conflicting sources. This article applies the United States' legal test for a historic waters claim, recently set out in the U.S. Department of State's analysis of China's claims in the South China Sea, and concludes that the boundary waters of the Salish Sea would not meet that test. Accordingly, the waters of the Salish Sea boundary straits on the United States' side of the international boundary must be considered a territorial sea.     

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.     

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.     

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.