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.     

The Role of Research in Fisheries Management: The Conservation of Dolphins in the Eastern Tropical Pacific and the Exploitation of Southern Bluefin Tuna in the Southern Ocean

This article uses two case studies to assess the role of research in policy formation and fishery management. One study focuses on measures to limit the mortality of dolphins taken when tuna are harvested in the eastern tropical Pacific. The other studies measures taken to limit harvests of Southern Bluefin Tuna. Both of these fisheries involve fugitive resources and transboundary resources spreading across both national exclusive economic zones and the high seas. Both fisheries were initially based on open access, but public policy has led to greater exclusive use through individual transferable quotas for Southern Bluefin Tuna and dolphin mortality limits. A number of policy conclusions are drawn.     

The Ocean Trade in the New Economy: A Keynote Address

Privatization and liberalization, the twin pillars of globalization, combined with the advent of the information age, represent the culmination of processes that had their roots in the very nature of ocean trade, characterized by the accumulation and exercise of power. While freedom of the seas was the doctrine under which the business of ocean trade was conducted, the tools of governance were always paramount in determining the contours of that freedom. It is apparent that the integration of ocean trade and the consequential disappearance of national identity within ocean trade has created a governance vacuum in today's globalized economic environment. The new economy, which is driven by information and communication technologies (ICT and e-commerce), has propelled the integration process to unprecedented heights, the major constraint being the physical limitations inherent in the movement of ocean trade. These developments, combined with the governance deficit, are creating major challenges and opportunities. Particularly at stake are the interests and welfare of the majority of developing countries and their capacity to take advantage of the new opportunities to integrate themselves into the world economy. At present, the added value of the opportunities resulting from globalization and information technology (ICT and e-commerce) appears to be very marginal for most of these countries. In addition, the downside of the new structures that have been created in ocean trade, which appear to inhibit and limit any increased participation by the developing countries, needs to be addressed by the international community in order to avert an endemic digital divide.­     

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.     

The law of the sea and management of anadromous fish stocks

Abstract

Unilateral declarations of 200‐mi fishing zones by coastal states are likely to find universal recognition in new articles of international law. These probably will conform to the Single Negotiating Text currently under discussion in continuing sessions of the Third Conference on the Law of the Sea. The articles of this Text are clearly designed to protect and strengthen the fisheries rights of coastal states. Ironically, the new rules may prove counterproductive in respect of the major salmon stocks that migrate beyond 200‐mi limits. Effective protection of state‐of‐origin rights on the high seas beyond these limits will be difficult. Distant water fishing fleets experiencing reduced access to 200‐mi coastal zones will be tempted to increase, their efforts on stocks found in the remaining high seas. Salmon interception by neighboring states will also remain a problem. The article analyzes protective strategies and accommodations that may be pursued by states of origin.     

Management of the ocean's living resources: An essay review

Abstract

The Third United Nations Conference on the Law of the Sea (UNCLOS III) focused primarily on the peaceful uses of ocean space. Although security issues were and are involved in many peaceful uses of ocean space, they were not explicitly addressed at UNCLOS III nor covered in the U.N. Convention on the Law of Sea. Since security issues are among the major neglected issues of ocean space, it is the purpose of this article to open the discussion of the legal and political aspects of these issues as relating to the law of the sea.     

Submarine Communications Cables and Law of the Sea: Problems in Law and Practice

Submarine communications cables laid on the seabed of the ocean are the foundation of the world's international telecommunications network. International law, in particular, the law of the sea, has recognized the freedom to lay submarine cables and perform associated operations and has placed certain obligations on states related to the protection of submarine cables. This article examines the international law with respect to submarine cables and discusses the various problems with both the law and state practice on submarine cables. It argues that these problems are illustrations of the traditional challenges that face the law of the sea; that is, the balancing and accommodation of competing uses of ocean space. It concludes that an important step toward resolving these problems is enhanced consultation and cooperation between cable companies and governments and that efforts should focus on creating such mechanisms.     

The Return to a Mare Clausum Through Regional Fisheries Management Organizations?

The operation of regional fisheries management organizations (RFMOs) may transform the high seas into mare clausum, by threatening the premise of the freedom of the high seas―equal access of all states to the high seas. This arises since the procedure to become a party to RFMOs prevents states from enjoying the freedom of fishing. Moreover, formal and substantive equality is not ensured in the decision-making process of RFMOs. However, in order to avoid this threat to mare liberum, RFMOs are making some efforts toward more rational and equitable management.     

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.     

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.     

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.     

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.     

Plate tectonics and continental drift during the Cenozoic era

The theory of plate tectonics rests essentially on paleomagnetism data and on the results of submarine cores which are evidence of continuous sea-floor spreading. Each oceanic plate is connected to the adjacent continent. Its continuous movement (a few centimeters per year) accounts for the hypothesis of “continental drift” put forward by Wegener around the turn of the century and explains the formation of mountain ridges and ocean pits. In connection with the paleogeography of the epicontinental seas, sea-floor spreading allows a better understanding of mammal migrations during the Cenozoic era.     

The biology and ecology of the ocean sunfish <Emphasis Type="Italic">Mola mola</Emphasis>: a review of current knowledge and future research perspectives

Relatively little is known about the biology and ecology of the world’s largest (heaviest) bony fish, the ocean sunfish Mola mola, despite its worldwide occurrence in temperate and tropical seas. Studies are now emerging that require many common perceptions about sunfish behaviour and ecology to be re-examined. Indeed, the long-held view that ocean sunfish are an inactive, passively drifting species seems to be entirely misplaced. Technological advances in marine telemetry are revealing distinct behavioural patterns and protracted seasonal movements. Extensive forays by ocean sunfish into the deep ocean have been documented and broad-scale surveys, together with molecular and laboratory based techniques, are addressing the connectivity and trophic role of these animals. These emerging molecular and movement studies suggest that local distinct populations may be prone to depletion through bycatch in commercial fisheries. Rising interest in ocean sunfish, highlighted by the increase in recent publications, warrants a thorough review of the biology and ecology of this species. Here we review the taxonomy, morphology, geography, diet, locomotion, vision, movements, foraging ecology, reproduction and species interactions of M. mola. We present a summary of current conservation issues and suggest methods for addressing fundamental gaps in our knowledge.     

Beaked whales respond to simulated and actual navy sonar

Beaked whales have mass stranded during some naval sonar exercises, but the cause is unknown. They are difficult to sight but can reliably be detected by listening for echolocation clicks produced during deep foraging dives. Listening for these clicks, we documented Blainville's beaked whales, Mesoplodon densirostris, in a naval underwater range where sonars are in regular use near Andros Island, Bahamas. An array of bottom-mounted hydrophones can detect beaked whales when they click anywhere within the range. We used two complementary methods to investigate behavioral responses of beaked whales to sonar: an opportunistic approach that monitored whale responses to multi-day naval exercises involving tactical mid-frequency sonars, and an experimental approach using playbacks of simulated sonar and control sounds to whales tagged with a device that records sound, movement, and orientation. Here we show that in both exposure conditions beaked whales stopped echolocating during deep foraging dives and moved away. During actual sonar exercises, beaked whales were primarily detected near the periphery of the range, on average 16 km away from the sonar transmissions. Once the exercise stopped, beaked whales gradually filled in the center of the range over 2-3 days. A satellite tagged whale moved outside the range during an exercise, returning over 2-3 days post-exercise. The experimental approach used tags to measure acoustic exposure and behavioral reactions of beaked whales to one controlled exposure each of simulated military sonar, killer whale calls, and band-limited noise. The beaked whales reacted to these three sound playbacks at sound pressure levels below 142 dB re 1 μPa by stopping echolocation followed by unusually long and slow ascents from their foraging dives. The combined results indicate similar disruption of foraging behavior and avoidance by beaked whales in the two different contexts, at exposures well below those used by regulators to define disturbance.     

Revisiting the Freedom of Fishing and Legal Obligations on States Not Party to Regional Fisheries Management Organizations

For decades, states have cooperated through regional fisheries management organizations (RFMOs) on the conservation and management of living marine resources on the high seas. Nonmembers, or third states not bound by their decisions, have been an Achilles’ heel. In this article, the legal status of RFMO nonmembers and the freedom of fishing are examined. It is concluded that RFMO nonmembers have concrete obligations with respect to established fisheries subject to RFMO regulation.     

Marine scientific research under emerging ocean law

Abstract

The traditional “fifth freedom”; of the high seas—freedom of scientific research—has been considerably eroded by recent coastal state claims to 200‐mile offshore zones. Insofar as these claims include competence to regulate marine scientific research, they are about to be endorsed in the adoption of a new Law of the Sea Convention by the Third U.N. Conference on the Law of the Sea. The author assesses the significance of the claims and examines the features of the “consent regime”; established through the negotiations at the Conference.     

Risk Assessment in Navy Deployment Toxicology

The risk assessment process is a critical function for deployment toxicology research. It is essential to the decision making process related to establishing risk reduction procedures and for formulating appropriate exposure levels to protect naval personnel from potentially hazardous chemicals in the military that could result in a reduction in readiness operations. These decisions must be based on quality data from well-planned laboratory animal studies that guide the judgements, which result in effective risk characterization and risk management. The process of risk assessment in deployment toxicology essentially uses the same principles as civilian risk assessment, but adds activities essential to the military mission, including intended and unintended exposure to chemicals and chemical mixtures. Risk assessment and Navy deployment toxicology data are integrated into a systematic and well-planned approach to the organization of scientific information. The purpose of this paper is to outline the analytical framework used to develop strategies to protect the health of deployed Navy forces.     

Marine Coastal Resources as an Engine of Development for the Lafkenche and Williche Populations of Southern Chile

Abstract

Lafkenche and Williche, the Mapuche coastal population in Chile, used coastal marine areas and resources for centuries. The Spanish colonization and the subsequent establishment of the Republic of Chile curtailed these access rights and traditional uses. In 2008, the government of Chile introduced the “Lafkenche Law” establishing exclusive access rights for traditional indigenous use of coastal marine areas and resources, but the law has not led to effective self-determination or the development of the ethnic Mapuche populations. Interviews with indigenous community leaders in October 2014 confirmed their dissatisfaction with this law. This article discusses whether the experience of other nations, such as the innovative Community Development Quota Program in Alaska in the United States, which allocates a portion of certain species in the Bering Sea to coastal communities, can help overcome marine resources access barriers affecting the Mapuche people.     

Viral Hepatitis: Problems of Incidence and Control in Military Personnel

(A) Hepatitis B virus (HBV) is now the major cause of infectious viral hepatitis in U.S. military personnel and probably also in the civilian population over 15 years of age. (B) The incidence of icteric, viral hepatitis is much higher in U.S. military personnel than in comparable age groups in the civilian population. The 17-to 20-year-old enlisted men show the highest rates. (C) In parts of the world (e.g., U.S.A., Germany) where most of the inapparent infection is caused by the adw subtype of HBV, most of the acute clinical disease is caused by the ayw subtype. In the U.S.A. and Germany, 95% or more of HB_s Ag isolates from U.S. military personnel with acute hepatitis is ayw. (D) It may be many years before one can expect to have sufficient data for a decision as to the possible availability of an effective HBV vaccine. Accordingly, a decision is urgently needed regarding either the immediate use of the best practically available hepatitis immune gamma globulin, that can be prepared by modern techniques, for the prevention of hepatitis in U.S. military personnel or postponement of such use until an adequate and properly controlled trial can be carried out in active duty military personnel in an area of high incidence.