Today's Customary International Law of the Sea

International courts and tribunals, governments, and scholars over the past half-century (many in the past two decades) have identified various provisions of the 1958 and 1982 treaties on the law of the sea that are customary international law and thus binding on all states, including those not party to these treaties. This article systematically collects these opinions and identifies provisions that have not yet attracted their attention.     

Determining Allocation: From Paper to Practice in the Distribution of Fishing Rights Between Countries

This article discusses the allocation problem in international fisheries management, which is critical to effective resource management. A number of cases where allocation problems exist are reviewed and trends identified. It is concluded that power relationships between the states involved are an important determinant of allocation outcomes. While this may seem a frustrating conclusion, it nevertheless reflects the realities of international cooperation.     

Reinterpreting the State of Fisheries and their Management

Abstract A series of recent high-profile papers in Science and Nature have led readers to believe that most fisheries worldwide are overexploited and that current fisheries management practices have universally failed. In reality, current fisheries management is working well to achieve the legislated objective of MSY in some countries but is failing in others. Here, I present three interpretations about the status of fisheries management that are widely accepted and for each consider an alternative interpretation of the data. I propose that, rather than abandoning current approaches to fisheries management, we should expand the use of the management tools used in fisheries that currently achieve biological and economic sustainability.     

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.     

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.     

Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ

On 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered its first full-bench Advisory Opinion. In its reply to the request of the West African Sub-Regional Fisheries Commission the ITLOS found that Arts. 62(4), 58(3), 192 of the United Nations Convention on the Law of the Sea contain obligations for a flag state to ensure that vessels flying its flag do not engage in illegal fishing in the exclusive economic zones of coastal states. The Advisory Opinion has widely been praised for bringing clarity to the inadequate international fisheries law regime. This article undertakes to analyze the ITLOS's interpretive approach, expose interpretive deficiencies, and offer possible explanations for some of the outcomes where the ITLOS itself did not do so.     

Then and Now: Reappraising Freedom of the Seas in Modern Law of the Sea

The principle of freedom of the seas remains the governing paradigm of the high seas in modern law of the sea. Although the principle, as embraced by the UN Convention on the Law of the Sea (LOSC), is no longer an absolute norm, it continues to present fundamental challenges for achieving effective conservation on the high seas as it stands in direct contrast to the conservation duty imposed on states by LOSC. The recent UN General Assembly resolution calling for the adoption of a further Implementing Agreement under LOSC to address conservation on the high seas, highlights the need to build a new ethos for management of the high seas, which will require states to loosen their firm grip on the Grotian doctrine. This article seeks to contribute toward shifting attitudes in relation to the principle of freedom through an examination of the nature and scope of the principle in its historic context and in contemporary law of the sea.     

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.     

The Impact of the Law of the Sea Convention on Conflict and Conflict Management in the South China Sea

This article examines the impact of the UN Law of the Sea Convention on conflict behavior and management in the South China Sea during four periods: during its negotiation (1973–1982); from its signing to the entry into force (1982–1994); from then until the China-ASEAN Declaration on the Conduct of Parties in the South China Sea (1995–2002); and from the setting of a timeline for outer limits of continental shelf submissions to the events following the 2009 submissions (2003–2013). Ambiguous effects were found. On the one hand, the Convention has generated or exacerbated conflict by raising the stakes, failing to resolve key legal issues, and encouraging overlapping zone claims. On the other hand, it has provided obligations, language, and techniques for conflict management and resolution. The conflict-enhancing impact was found to have been more substantial than the peace-promoting effects. Nevertheless, the balance has shifted toward more emphasis on conflict management and also some utilization of the Convention's peacemaking potential. If this long-term trend continues and the Convention is more rigorously respected and applied, the Convention may in the end be found to have contributed to regional peace.     

Vietnam's national interests and the law of the sea

This article explores the relationship between Vietnam's national interests and the international law of the sea. Vietnam's national interests in the marine sphere include defense (the maintenance of a maritime buffer); international relations (enhancing its regional position through joint development and favorable resolution of boundary and fisheries disputes); and economics (stimulating development of its maritime resources). Although ratification of the 1982 Law of the Sea Convention would be somewhat disadvantageous to Vietnam's maritime defense strategy, many provisions would promote Vietnam's interests. Moreover, ratification and implementation of the Convention would signal Vietnam's support for international law and its desire to “rejoin”; the community of Southeast Asian nations. It might also encourage resolution of its boundary disputes, thus opening new areas to resource exploration and development by foreign companies.     

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.     

Pacta Tertiis and Regional Fisheries Management Mechanisms: The IUU Fishing Concept as an Illegitimate Short-Cut to a Legitimate Goal1

This article considers how international management of fisheries under the 1995 UN Fish Stocks Agreement and regional fisheries management organizations is affected by one of the basic principles of the law of treaties: the rule pacta tertiis nec nocent nec prosunt, by which international fisheries regulations as treaty-based obligations bind only the parties to the treaty concerned and not third states without their consent. It is shown that the relatively recent concept of IUU (illegal, unreported, and unregulated) fishing, often seen as a way to circumvent this problem, is flawed as a solution, largely because the leading global and European Union instruments in which it is embodied in effect equate unregulated fishing with illegal fishing in a way that pays insufficient heed to the constraints of the pacta tertiis rule.     

Lessons Learned from Reconstructing Interactions Between Local Ecological Knowledge, Fisheries Science, and Fisheries Management in the Commercial Fisheries of Newfoundland and Labrador, Canada

Questions centered on the development of local and traditional ecological knowledge and the relationship of that knowledge to the development of conservation and management practices have recently attracted critical attention. We examine these questions with respect to the dynamic commercial fisheries of the Canadian province of Newfoundland and Labrador. The knowledge of fish harvesters coevolves with fishing practices and is embedded in a dynamic socioecological network that extends into and beyond the fisher, fishery households, and communities to include management, technologies, markets, and marine ecological conditions. Changes in these networks have moved knowledge and practices related to fishing in directions defined by policy, science, economic rationality, and new ecological realities. We characterize this movement as a shift along a continuum from local ecological knowledge (LEK) towards globalized harvesting knowledge (GHK) as harvesters become increasingly disconnected from socioecological relationships associated with traditional species and stocks. We conclude with a discussion of how LEK/GHK have interacted over time and space with other knowledge systems (particularly science) to influence management, and suggest that contingent, empirical evaluations of these interactions will provide a fruitful avenue for future interdisciplinary research.

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.     

A Game of Cat and Fish: How to Restore the Balance in Sustainable Fisheries Management

This article argues that continued reliance on input/output controls and restrictions in fisheries management may be insufficient to protect global fish stocks. Instead, a transition beyond supply-side measures to those aimed at reducing demand for fish stocks may be necessary. The article offers a proposal for five types of demand-side or market-based measures: elimination of fishing subsidies, bolstering of import restrictions, ceasing trade in endangered and threatened fish stocks, strengthening civil and criminal penalties against illegal fishers, and pursuit of punitive trade sanctions against flag states flouting international fishery guidelines to help prevent and deter global overfishing.     

Climate Change and the Use of the Dispute Settlement Regime of the Law of the Sea Convention

This article explores the connection between obligations to reduce greenhouse gas (GHG) emissions under the climate change regime and obligations to protect the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS). Within the context of the state of the science on the links between climate change and the marine environment, the article considers whether the emission of greenhouse gases as a result of human activity constitutes a violation of various obligations under the UNCLOS. Having identified a number of possible violations, the article proceeds to consider the application of the binding dispute settlement process under the UNCLOS and the possibility of a successful claim.     

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.     

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.     

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

This article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.