Vietnam: Fisheries and navigation policies and issues

Abstract

Vietnam claims a 12‐nautical‐mile territorial sea, a 12‐nautical‐mile contiguous zone, a continental shelf, a 200‐nautical‐mile exclusive economic zone (EEZ), historical waters encompassing most of the Gulf of Tonkin, and much of the Spratly Islands area. Vietnam's claimed boundaries overlap with those of China, Indonesia, Malaysia, Thailand, and Cambodia, and, in the Spratlys, with those of China, Taiwan, the Philippines, and Malaysia. The area claimed contains significant fisheries resources, and Vietnam has stipulated provisions for access to fish by foreign vessels. Yet issues pertaining to shared and migratory stocks remain to be addressed. Similarly, Vietnam has established regulations governing foreign ships navigating in Vietnamese‐claimed waters, including those designed to protect the environment. But some of these provisions do not conform to the provisions of the 1982 U.N. Convention on the Law of the Sea (UNCLOS). This article reviews Vietnam ‘s fisheries and navigation policies and issues.     

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 African states in the development of the law of the sea at the third United Nations conference

Abstract

This interpretation of the role of African states in the development of the law of the sea at UNCLOS III analyzes relevant economic and political factors behind policy decisions. First, an analysis is made of the economic factors. The African states are developing states and share the common problems of lack of financial resources, dependence on raw material exports, and lack of managerial and technical skills. As members of the Group of 77, they adopt a common approach to the powers of the International Sea‐bed Authority, the economic zone, scientific research, and transfer of technology. However, there are great divergencies among the African states in natural resources and rate of development; divergent interests have emerged between the coastal states and the landlocked ones, and these differences are reflected in negotiating positions. The major political element dominating the approach of the African states is the colonial heritage of the great majority and their becoming independent in the period between the 1958/60 Conferences and UNCLOS III. This common political background has contributed to the strong cohesion of the African Group and its adherence to a group position throughout the negotiations, despite the divergent economic interests of individual states.

The positions of the African states are analyzed in depth, from the Sea‐bed Committee through the 6th Session of UNCLOS III. One of the major contributions made by the African states to the law of the sea is the development of the economic zone concept, which is essentially different from the extension of the territorial sea proposed by some other developing states, and from the continental shelf concept. The African provision made for participation by landlocked states in access to the living resources of the zone is also an important innovation, which promises a radically new approach to resource management. Finally, the impact made by the African states is examined in the context of the development of a New Economic Order. The law of the sea is seen as one aspect of the global problem of allocating benefits from world resources towards the developing states, and redressing the balance between the industrialized and the developing nations.     

Brazil at the third United Nations conference on the law of the sea

Abstract

As Brazil began to emerge as a major power in the years leading up to theThird United Nations Conference on the Law of the Sea (UNCLOS III), national ocean policy came to have a quite continuous, distinctive impact on global law of the sea negotiations. Brazil's participation at UNCLOS III offers a particularly good vantage point from which to analyze its more prominent international role as an emerging major power, its related growth as a maritime power, and its significant contribution to international organization.

UNCLOS III, in turn, affects Brazil. The broad implications of the emerging ocean order for both national and international jurisdiction issues, within which Brazilian ocean policy must operate, are analyzed. Brazil's distinctive position as an emerging power between the industrialized countries and the Third World has conditioned its involvement at UNCLOS III. As a developing state, Brazil has favored revision of the traditional order for the purpose of redressing the balance with the developed states. At the same time, as an emerging power, Brazil has an interest in supporting a stable, open international order. In spite of such policy dilemmas, Brazil stands out as one of the few big potential winners in the Third World from both the seabed and non‐seabed portions of the law of the sea negotiations.     

Looking back to see ahead: UNCLOS III and lessons for global commons law

The Third United Nations Conference on the Law of the Sea (UNCLOS III) provides valuable lessons for future formulation of law to govern global commons, areas that lie beyond the limits of national jurisdiction and to which all peoples have free and open access. Although endowed with the advantage of a certain degree of scientific certainty about the need for regulation of the ocean environment, UNCLOS III fell victim to a North‐South schism that impaired the search for consensus on important issues and undermined the final product of the negotiations. An examination of the UNCLOS III experience suggests that agreements that exclude specially affected states are unlikely to succeed, and points to a variety of advantages and disadvantages that come from linking several issues under one negotiating framework. The consensus approach to negotiation used at the Conference tends to expand the time and effort needed to reach a successful outcome, which can lead the negotiations themselves to be outstripped by technological or political developments. Finally, the UNCLOS III experience underscores the importance of global ideological and philosophical differences on the allocation of resources and environmental responsibility. Given these lessons, alternatives to the “parliamentary diplomacy”; strategy used at UNCLOS III are suggested, including a framework‐plus‐protocols approach, international coordination of national plans, regional arrangements, and strictly unilateral actions. While the comprehensive parliamentary diplomacy approach is useful because it recognizes the interconnectedness of ecosystems, in many situations one of the other approaches may increase the chance for a successful outcome. Whichever method is chosen, there is an emerging global recognition of the need for some action to be taken by the world community in combatting the destruction of the world's commons areas, which may be a positive sign for the future of environmental negotiations of this sort.     

The basic structure of the disputes settlement part of the law of the sea convention

Abstract

The Draft Convention on the Law of the Sea contains an elaborate and unique system for the settlement of disputes concerning the world ocean that is both flexible and firm. The evolution and development of this disputes settlement system began later than the work done in Committees I, II, and HI, of the Conference and was largely due to the initiative and leadership of Hamilton Shirley Amerasinghe, President of UNCLOS III. The major features of the emerging disputes settlement system are: a general and comprehensive system including adjudicatory procedures; a multiplicity of forums for disputes settlement with concurrent attempts at maintaining some uniformity in the jurisprudence of the law of the sea; adoption of a flexible system which permits states the choice of mode or venue for settlement; abandonment of the original idea of a separate and special “Sea‐Bed Tribunal”; the decision of the Conference to make disputes settlement an integral part of the Convention; the emergence of the compulsory resort to conciliation for disputes in the EEZ; and the designation of categories of disputes which may be submitted only to the Sea‐Bed Disputes Chamber.     

The exclusive economic zone and public international law

Abstract

This paper will set the international background for the evolution of the Exclusive Economic Zone (EEZ) concept in international law and in state practice. It will review the relevant provisions of the UNCLOS III and will discuss the extent to which they have or are likely to guide national practice in the future. The paper will also examine the Reagan Proclamation from an international legal perspective, as well as the possible impact of action taken by the United States in fashioning its EEZ on the stability of the EEZ concept internationally.     

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.     

National legislation on ocean authority zones and the contemporary law of the sea

Abstract

Unilateral claims to 200‐nautical‐mile zones of varying forms of national jurisdiction continue to proliferate as the LOS negotiations continue. Legislation from thirty‐nine nations establishing exclusive economic zones is examined. Discussion and comparison include the scope of authority claimed, the range in activities affected, the exclusiveness of authority asserted, the extent of recognition of the interests and rights of other states, and the geographic extent of individual claims. The primary focus is upon comparing provisions that concern or directly relate to navigation in the zone. After brief discussion of the draft LOS treaty provisions concerning access to the zone for transportation and communication, the disparity between these provisions and some national measures is noted.     

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.     

Thailand's fisheries: A victim of 200‐mile zones

Abstract

During the 1970s, Thailand emerged as the major distant‐water fishing nation in Southeast Asia. By the 1980s, Thailand's neighboring states had introduced 200‐nautical‐mile economic zones with the consequence that the Thai fishing industry faces a loss of approximately 300,000 square kilometers of fishing grounds that had been utilized by the Thai trawler fleet. The Thai fishing industry will face a difficult time in the next decade as neighboring states take action to remove foreign vessels from their 200‐mile zones and the Thais are forced into their small zones in the Gulf of Thailand and Andaman Sea. Thailand, as a developing country with a distant‐water fishing fleet, is a victim of the 200‐mile economic zones.     

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.     

Management,conservation, and cooperation in EEZ fishing: The law of the sea convention and the South Pacific forum fisheries agency

Abstract

This paper examines the nature of the relationship between management, conservation, and cooperation in respect to EEZ fishing. The analysis is demonstrated through a discussion of the developments leading up to the creation of the South Pacific Forum Fisheries Agency (FFA). The paper examines and dismisses the criticism that the Agency does not fully meet the requirements of emerging international law. In addition to laying the foundations of the substantive argument, the conceptual and legal analysis presented here is also seen as a contribution to the wider debate about the scope and substance of the rights and duties of states in respect to EEZ fishing, especially in relation to highly migratory species.     

Jurisdiction Over Underwater Cultural Heritage in the EEZ and on the Continental Shelf: A Perspective From the Practice of States Bordering the South China Sea

Abstract

The Chinese initiative of constructing the 21st Century Maritime Silk Road could be identified as a new chance to promote the protection of underwater cultural heritage (UCH) in the South China Sea. However, uncertainties concerning the jurisdictional issue over the UCH in the exclusive economic zone (EEZ) or on the continental shelf constitute an obstacle. The Convention on the Protection of Underwater Cultural Heritage has, to some extent, enlarged the coastal state’s jurisdiction. State practice differs on this issue. This article focuses on the domestic legislations of states bordering the South China Sea related to the jurisdiction over UCH found in their EEZ or on their continental shelf.     

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.     

Antarctica and the law of the sea: An introductory overview

Abstract

This article examines the potential for conflict between the Antarctic Treaty regime and the Convention recently produced by the Third United Nations Conference on the Law of the Sea. Should the UNCLOS III Convention enter into force, at least six issue‐areas seem susceptible to future controversy in Antarctic waters, namely (1) seaward territorial limits; (2) resource management and conservation; (3) local environment protection; (4) marine scientific research; (5) deep seabed mining; and (6) archipelagic‐island regimes. Accordingly, each issue‐area is assessed as to its relevance for the Southern Ocean vis‐a‐vis the Antarctic Treaty parties, with a particular view towards signaling possible problems which involve conflict of interest and overlapping jurisdiction.     

Developing nation imperatives for a new law of the sea: UNCLOS I and III as stages in the international policy process

Abstract

This paper seeks to compare the two major law of the sea conferences of the post‐World War II period in terms of imperatives for moving toward a more equitable international system. Transitions in the international system which have taken place in the years between the conferences are analyzed, as well as differences in conference participation and procedures. The paper then focuses upon the necessity for policy to be formulated in such a way that imbalances in opportunities for utilization of the seas are redressed. Special attention is given the status of the landlocked and geographically disadvantaged states. The 1977 Negotiating Text is commented on from this perspective. Proposals for development of ocean law/policy in UNCLOS III more congruent with achievement of global equity are then set forth.     

The effect of extended coastal state jurisdiction over the seas and seabed upon marine science research

Abstract

UNCLOS III is a revolution not only in international law and the law of the sea, but also in the relationships between the North (developed world) and the South (developing world). New concepts such as the “Common Heritage of Mankind”; and the “Exclusive Economic Zone”; are being developed along with such new institutions as the International Seabed Authority. The Third World, numbering about 122 states, has been in the forefront of this revolution at UNCLOS III, and in the collateral effort to develop a New International Economic Order. The exploitation of the manganese/polymetallic nodules on the surface of the deep seabed has been a major focus of UNCLOS III, and the positions of the Group of 77 (Third World), the Soviet Union and Eastern Europe (Second World), and the United States, Western Europe, and Japan (First World), are carefully set forth and compared in this article. The differences between the three positions are substantial. It is hoped, however, that a workable system for exploiting the deep seabed and sharing its wealth can be found.     

Regulating Shipping in the Arctic Ocean: An Analysis of State Practice

The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.     

Canadian perspectives on seabed mining: The case of the production limitation formula

Abstract

This paper will analyze the position Canada took on seabed mining in the Third United Nations Law of the Sea Conference (UNCLOS III). Canada is a major land‐based producer of nickel, an industrialized country with private interests in seabed mining, a NATO member, a major ally of the United States, and a country with extensive ties to less‐developed countries. At UNCLOS III Canada was concerned primarily about the management and control of its coastal resources and the protection of the marine environment. After having secured these interests, Canada emerged as the leader of the land‐based mineral‐producer group advocating production controls on seabed mining. The production limitation formula was one of the major reasons for the United States’ decision not to sign the Law of the Sea Treaty. In so forcefully advocating a production limitation formula, the Canadian delegation relinquished Canada's potential as a middle power to bridge the gap between the Group of 77 and the Western industrialized countries in order to formulate a widely acceptable regime to govern the seabed. A production limitation formula was not in Canada's best interests, given her potential role in seabed mining, and was rejected by officials in the Department of Energy, Mines, and Resources, as well as the Canadian private sector.