A Note on and a Proposal with Respect to the Transportation of Nuclear Cargoes in International Straits

The adoption of an international agreement to create a regime of prior communication and cooperation in the establishment of a precautionary contingency plan for nuclear spills for straits used for international navigation is vital as the peaceful uses of nuclear energy continue to be attractive to states, including Asian states, as a component of a sustainable energy strategy. With the expected rise in nuclear commerce for peaceful purposes, the need for a comprehensive framework for nuclear cargoes and wastes exists and this includes suitable response action plans for nuclear spills. The international instruments adopted by the International Maritime Organisation and the International Atomic Energy Agency provided a framework for the safe and secure carriage of nuclear materials from, other things, piracy, terrorism and sabotage. This article focuses on the movement of vessels carrying nuclear cargoes and wastes through the territorial sea waters of international straits and the necessary relationship that should exist between the vessels and the adjacent coastal States.     

Historic Salvage Law Revisited

Litigation involving the R.M.S. Titanic highlights the critical need for a more stable legal regime to protect shipwrecks, their cargo, and other aspects of underwater cultural heritage. The general maritime law, as articulated by admiralty courts in the United States, has begun to qualify salvage awards in terms of compliance with archaeological standards. Salvage law, however, does not provide language and rules readily applicable to historic wreck and related material. We are, therefore, in a period of transition between a heavy reliance on the common law of "treasure" salvage and the development of a truly general, universal regime to govern underwater heritage. At the center of this development is the Draft UNESCO Convention on the Protection of the Underwater Heritage, based upon the Buenos Aires Draft Convention of the International Law Association. The emerging regime of conventional law provides authority, bases of jurisdiction and other forms of international cooperation, to enforce a set of rules for protection and scientific management of heritage. Critical issues await further negotiations, including the definition of protected heritage, an accommodation of commercial salvage interests within the prescribed conservation and management standards, the status of warships, and the terms of coastal state jurisdiction within the permissible limits of the 1982 UNCLOS.     

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.     

Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities

Maritime security concerns in the South China Sea are increasing for several reasons: higher volumes of shipping traffic, protection of exclusive economic zone resources, piracy, terrorist threats, greater international scrutiny of ports and shipping, and the modernization of regional naval and coast guard forces. Coastal states and international user states have many overlapping interests in the South China Sea, for example, in promoting safe navigation through its busy sea-lanes. On other issues, in particular, antipiracy or anti-maritime terrorism measures, they have different views about the seriousness of the threats and the responses necessary to address them. This article examines the convergent and divergent maritime security interests of coastal states (China, Indonesia, Malaysia, and Singapore) and international user states (Australia, India, Japan, and the United States) in the South China Sea. It finds that multiple stakeholders pursuing diverse interests have yet to close the gap between goals and means of achieving maritime security.     

The Changing Regulation of Coastal Shipping in Australia

Market access to coastal shipping services is often severely restricted. Most countries impose national flag requirements as a minimum. However, Australia's coastal shipping market has been more open than many other markets, allowing foreign flag access to domestic shipping through a unique permit and licensing scheme. This article assesses Australia's regulation of cabotage by examining the nature of the permits issued to foreign flag companies for domestic shipments and evaluates the changes currently being proposed against a database of permits issued in 2009 and 2010.     

Disruptive medical patients. Forensically informed decision making.

Patients who disrupt medical care create problems for physicians. The risks are not entirely clinical. Although these patients may compromise sound clinical judgment, some are also litigious and express their dissatisfaction in legal or other forums. It then becomes necessary for treating physicians to be aware of the legal and ethical boundaries of their patient care responsibilities. Some disruptive patients are treated by setting limits, which is usually affirmed by health care agreements. A hospital review board may advise clinicians on these agreements and on the management of disruptive patients. If termination of the physician-patient relationship is considered, physicians must follow proper protocol. We examine these forensic considerations and place them in the context of malpractice. Communication, consultation, and documentation are the key elements in reducing liability.     

A Review of the Legal and Policy Framework for Vessel Source Pollution in Hong Kong

Vessel source marine pollution is an increasingly major concern at both the national and international levels. Hong Kong, as an important maritime center, is naturally concerned with vessel source pollution. To meet the challenges, Hong Kong has formulated policies and measures that emphasize “green shipping” as part of an overall planning strategy that promotes a “green economy.” This article provides a review and analysis of Hong Kong's marine pollution laws, with a view toward making policy suggestions. It argues that the general perception of the adequacy of Hong Kong's marine laws in combating vessel source pollution is flawed. It suggests that Hong Kong should adopt a more forward-looking perspective in the formulation of legal measures to control vessel source pollution.     

Foreign Access to Shared Marine Genetic Materials: Management Options for a Quasi-Fugacious Resource

Marine genetic resources are increasingly being targeted as a source of drugs and other biotechnological uses. Many of these resources are located in tropical coral reef areas within the jurisdictional control of one or more developing nations. Unlike traditional marine living resources, genetic resources are not exploited for their properties as physical substances, but as sources of information. The current international regulatory regime governing access to marine genetic resources is the traditional rule of capture, which provides that ownership of natural resources coming from a common source of supply is recognized once it has been reduced to dominion and control. This contribution contends that the rule of capture coupled with exclusive access agreements and strong global intellectual property protections create a legal environment that is inequitable, economically and biologically inefficient, and ripe for international discord. This contribution advocates an alternative regulatory model that is similar, in many respects, to the more cooperative approaches used to manage transboundary fugacious resources such as liquid oil and gas, international water resources, and migratory wildlife.­     

The Dispute Concerning the Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire: Implications for the Law of the Sea

The final judgment in the maritime boundary delimitation case between Ghana and Côte d’Ivoire was delivered by an ad hoc special chamber (the Chamber) of the International Tribunal for the Law of the Sea (ITLOS) on 23 September 2017. The decision addressed important legal questions relating not only to maritime boundary delimitation but also to the balancing of various rights and interests at the provisional measures stage and international responsibility for unilateral resource exploitation activities in disputed zones pending delimitation. This article analyzes the decision of the Chamber with respect to its findings on tacit boundary agreements, delimitation methodology, and international responsibility.     

Harmonizing extended zone legislation in southeast asia

Abstract

The extension of national jurisdictions up to 200 nautical miles out to sea creates new opportunities for cooperation among nations in regions such as Southeast Asia. One approach to cooperation is for nations of the region to work toward harmonizing their national laws relating to the management of their extended zones. Harmonization may be defined as the deliberate alignment of the laws of different nations for the purpose of fulfilling their national interests.

In Southeast Asia there are opportunities for harmonization in most of the major ocean use sectors. In fisheries, for example, standardized laws might be established regarding the licensing of foreign fishing vessels for access to Southeast Asian waters. In shipping, agreed standards could be applied to expedite shipping between ports of the region as well as for traffic to and from the region. In environmental protection, uniform standards could be established for monitoring for pollution. Harmonization may be especially useful where issues are international in character but the concerned nations are reluctant to create any new international management body.     

International Straits and Trans-Arctic Navigation

The Arctic Ocean is increasingly becoming accessible to international shipping as a result of the reduction in Arctic sea ice. Commercial shipping may seek to transit the Arctic Ocean from either the Pacific or Atlantic Ocean and, as a result, the legal regime of straits has significance for trans-Arctic navigation. In this article, current developments in Arctic shipping are assessed and consideration is given to certain Arctic straits that could prove to be pivotal in future Arctic navigation and shipping. These straits include the Bering Strait, Nares Strait, Davis Strait, Fram Strait, and Denmark Strait.     

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.     

Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment

This article explores arguments about the international legality of compulsory pilotage in the Torres Strait. Although the measure has been opposed by some user states because the Torres Strait is a strait used for international navigation, Australia and Papua New Guinea believe compulsory pilotage is necessary to overcome the risks posed by unpiloted shipping passing through the hazardous waters. The good health of the marine environment in the Torres Strait is essential, particularly for the well-being of indigenous peoples of the area. The article concludes that compulsory pilotage in Torres Strait reflects the obligations of both the user and border states to preserve and protect the marine environment and has support in international law.     

Straits in the Russian Arctic

The issues surrounding the regimes of international straits, noninternational straits, and ice-covered areas are analyzed for the purpose of looking at Russian practices in its Arctic straits. It is concluded that the Russian practice exceeds that permitted to states bordering straits under the traditional regime for straits. Nevertheless, viewing the U.S. practice as a coastal state, as well as the coastal state practice of Canada, substantial similarities are found with the Russian practice. Conflicting claims and practices result in a confused Arctic legal regime. An international conference is recommended to discuss and perhaps settle the issues.     

Ocean energy and the law of the sea: The need for a protocol

Although fossil fuels are the overwhelming source of energy for the world, and will continue to be so for the foreseeable future, demographic, environmental, political, and economic factors indicate that interest in alternative, renewable sources of energy will grow. There is a need for both global and national policies on ocean energy management. In particular, coastal states and the energy industry would benefit from guidelines that helped to create a predictable, stable environment in which long‐term, high‐cost research, development, and investment decisions could be made with confidence. Coastal states have jurisdiction over the maritime zones most relevant to energy production, but many lack the expertise and funds to develop this potential source. Industry must operate within the control of coastal states and will not be served well by a plethora of differing legal interpretations and unilaterally imposed restrictions and obligations from state to state. An Ocean Energy Protocol to the 1982 UN Convention on the Law of the Sea would afford governments and industry the opportunity to clarify their respective obligations and address particular interests for mutual benefit.     

Navigating Between Treaties and Tweets:How to Ensure Discourse about Maritime Freedom Is Meaningful

In contemporary international discourse about maritime freedom (e.g., “freedom of navigation”), nations often speak in generalities, but rarely clarify what they mean. To reduce the risk of misunderstanding, nations should navigate their use of language between two purposes simultaneously. First, any discussion should be concise, communicable, and comprehendible. Additionally, nations should also be prepared to dialogue on these matters in greater depth and detail, and any substantive discussion should be faithful to the applicable international law that binds nations. A way to ensure such discourse is meaningful is by following a three-step process of labeling, framing, and applying. This article details this approach.     

HUMAN RIGHTS AND THE REQUIREMENT FOR INTERNATIONAL MEDICAL AID

Every year approximately 18 million people die prematurely from treatable medical conditions including infectious diseases and nutritional deficiencies. The deaths occur primarily amongst the poorest citizens of poor developing nations. Various groups and individuals have advanced plans for major international medical aid to avert many of these unnecessary deaths. For example, the World Health Organization's Commission on Macroeconomics and Health estimated that eight million premature deaths could be prevented annually by interventions costing roughly US$57 bn per year.
This essay advances an argument that human rights require high-income nations to provide such aid. The essay briefly examines John Rawls' obligations of justice and the reasons that their applicability to cases of international medical aid remains controversial. Regardless, the essay argues that purely humanitarian obligations bind the governments and citizens of high-income liberal democracies at a minimum to provide major medical aid to avert premature deaths in poor nations. In refusing to undertake such medical relief efforts, developed nations fail to adequately protect a fundamental human right to life.     

The new ocean regime and Japan

Abstract

Japan is an island nation which is heavily dependent upon the surrounding seas for food, importation of raw materials, exportation of finished products, and for national security. Japan is also the world's largest fishing and shipping nation, which poses certain problems and imposes special responsibilities on her. Japan has traditionally followed the principle of freedom of the high seas, but under the external pressure of developments at UNCLOS III and unilateral actions by other states, Japan has been forced to accept and accommodate herself to the new concept of transit passage through international straits, the twelve nautical mile territorial sea, and the two hundred nautical mile exclusive economic zone, which were perceived as contrary to her national interests. However, Japan is adapting to the new ocean regime that is emerging from both customary and conventional international law, because she has confidence that a stable regime is more important in the long run than some short‐term advantages that might be obtained through the absence of any regime. Furthermore, as one of the highly developed nations of the world, Japan feels a special responsibility to play an effective role in aiding and assisting the developing nations of the world.     

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.