Precautionary Coastal States’ Jurisdiction

Throughout the life of the 1959 Antarctic Treaty there has been considerable development in the law of the sea. Negotiated following the 1958 First United Nations Conference on the Law of the Sea, at which the customary international law concepts of the territorial sea and continental shelf were codified into treaty law, the law of the sea has since developed through state practice and most importantly through the 1982 United Nations Convention on the Law of the Sea. Whatever the merits of examining the interaction between Antarctica and the law of the sea have been in the past, there is much to suggest that the general significance of such issues is growing, especially as states seek to determine the outer limits of their continental shelf claims and in doing so determine Antarctic baselines. This article examines these issues from a general law of the sea perspective, taking into account the impact of the Antarctic Treaty while reviewing Australian practice in particular.     

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.     

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.     

Legal Status of the Northern Sea Route and Legislation of the Russian Federation: A Note

This article addresses the legal status of the Northern Sea Route (NSR) from a historical perspective and in accordance with the current Russian legislation and provides some answers to the questions of how the legal status of the NSR conforms with the norms of contemporary international law of the sea and, in particular, with the 1982 UN Convention on the Law of the Sea.     

United States policy on international straits

Abstract

United States policy on international straits is dictated by the vital importance to U.S. national security interests of unimpeded commercial and military transit through, over, and under sea lines of communication. Although perceived flaws in the deep seabed mining regime of the 1982 Law of the Sea Convention precluded U.S. signature or ratification of that document, the United States considers that the navigational articles of the convention reflect customary international law. Accordingly, U.S. policy on international straits is premised on recognition of and respect for the balance of interests set forth in the navigational articles of the 1982 Law of the Sea Convention.     

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.     

Territorial Sea Baselines along Ice-Covered Coasts: International Practice and Limits of the Law of the Sea

This article considers the relevant international law pertaining to territorial sea baselines and reviews the application of that law to ice-covered coasts. The international literature concerning the status of ice in international law is examined and state practice for both the Arctic and Antarctic is reviewed. The Law of the Sea Convention contains virtually no provisions pertaining to ice, as during its negotiation, in an effort to reach a consensus, all discussion of Antarctica was avoided. International lawyers appear to favour the notion that where ice persists for many years and is fixed to land or at least is connected to ice that is connected to land, it may be able to generate territorial sea baselines. Neither the International Court of Justice nor any other international tribunal has had the opportunity to consider the status of ice, except in the most general terms. This article considers some alternatives and difficulties in their application. The impact of the Antarctic Treaty on any system is also considered, as Articles IV and VI of the Treaty may be affected by any international action by claimants in proclaiming baselines.-     

Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf

The purpose of this article is to examine the outer continental shelf submissions made by the coastal states of the South China Sea and their potential impact on legal and political developments in the South China Sea. In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establish the outer limits of their continental shelf where it extends beyond 200 nautical miles. Meeting this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as in the South China Sea.     

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 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.     

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.     

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.     

Reflections on the Interpretation and Application of Article 121(3) in the South China Sea Arbitration (Merits)

The 2016 South China Sea Arbitration Award provided a detailed review of the interpretation of Article 121(3) of the U.N. Convention on the Law of the Sea. According to the Tribunal, Article 121(3) performs a preventive function by disabling tiny features from unfairly generating enormous entitlements to maritime space that does not serve the local population. This provision also contributes to safeguarding of the Common Heritage of Mankind. The Tribunal's interpretation seems to reflect development of the law of the sea toward protection of the common interests of the international community. However, since the Tribunal's interpretation is not anchored in state practice and the jurisprudence, whether the interpretation can be generalized needs careful consideration.     

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.     

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.     

The Economics of International Cooperation in the Apprehension and Prosecution of Maritime Pirates

Article 100 of the UN Convention on the Law of the Sea requires parties to “cooperate” against maritime piracy, but how this cooperation is to be achieved is undefined. Enforcement is a public good—creating uncompensated benefits for others, thus suffering from free rider problems. The analysis in this article explains why more pirates captured are released than prosecuted, why the United Nations and the International Maritime Organization are seeking to reduce enforcement costs, why some in the shipping industry want to apply the 1988 Convention Against Terrorism at Sea, and why still others want to move prosecution of pirates from national courts to an international court.     

Delimitation of the maritime boundary in the gulf of Maine area

The compulsory dispute settlement regime included in the 1982 Law of the Sea Convention is recognized as one of the most comprehensive in a modern international convention. Yet, in the recent application of this regime, the question has arisen as to whether the procedural prerequisites associated with the LOS Convention's compulsory dispute settlement mechanism are so arduous as to avoid binding and compulsory jurisdiction in most instances. This article addresses that question by examining, in particular, the reasoning of the Southern Bluefin Tuna arbitration tribunal, which found Article 281 of Section 1 of the LOS Convention to bar jurisdiction to the compulsory dispute settlement mechanism prescribed by the Convention, and offers suggestions as to how states might distinguish or overcome the barriers imposed by the Southern Bluefin Tuna tribunal in future cases.     

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 New Paradox in Marine Scientific Research: Regulating the Potential Environmental Impacts of Conducting Ocean Science

Concerns about the negative effects of marine scientific research are in clear juxtaposition to the beneficial role that scientific knowledge plays in enhancing the understanding of the oceans and protecting the marine environment. This presents a regulatory paradox that is examined in this article in light of the legal framework in the 1982 United Nations Convention on the Law of the Sea. The article traces how these general principles in the Convention are elaborated in soft law instruments for the promotion of environmentally sustainable research practices. It also looks at an example of state practice in this area by examining regulatory measures instituted in the Canadian Endeavour Hydrothermal Vent Marine Protected Area.     

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.