Twenty Years of Prompt Release of Vessels: Admissibility,Jurisdiction, and Recent Trends

The International Tribunal for the Law of the Sea (ITLOS) has a residual compulsory jurisdiction regarding the prompt release of seized vessels. This procedure is one of the novelties introduced in the UN Convention on the Law of the Sea and is unique in the international judicial universe because of both its procedural characteristics and its functions. This article highlights how prompt release cases do not necessarily stem from a dispute. This has a direct consequence for those whose interests the procedure protects and who can submit an application. The last part of this article discusses the recent trend where the release of vessels and crews has been requested in the context of provisional measures applications.     

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.     

Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean

This article recounts the negotiations and emergence of Article 234 concerning ice-covered areas in the UN Convention on the Law of the Sea. As Arctic shipping increases, more vessels and flag states may be subject to the provisions of Article 234, which permit coastal states to both prescribe and enforce special measures to protect the marine environment in ice-covered areas. The history of the Article 234, disclosed partially through declassified U.S. government documents, provides context for implementation of the provision by Arctic coastal states and flag states.     

“Openness” and Article 76 of the Law of the Sea Convention: The Process Does Not Need to Be Adjusted

The establishment of the outer limits of the continental shelf beyond 200 nautical miles under Article 76 of the United Nations Convention on the Law of the Sea, which requires states to submit information to the Commission on the Limits of the Continental Shelf (CLCS), is a complex and costly process. States have an interest in being aware of the kind of information that the Commission is expecting to receive. States also have an interest in being able to assess whether the coastal state in establishing these outer limits has acted on the basis of the recommendations of the Commission, as is required by the Convention. Both these issues have led to calls for greater “openness” with respect to the consideration of submissions by the CLCS. This article takes a close look at the proposals that have been advanced to accomplish greater openness and concludes that there is no need to change the current process, which offers sufficient opportunities to deal with the above-mentioned concerns. It is further concluded that the proposed changes in any case do not stand any chance of being adopted.     

PSSAs and Transit Passage—Australia's Pilotage System in the Torres Strait Challenges the IMO and UNCLOS

On 22 July 2005, the International Maritime Organization (IMO) approved the extension of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA) to the Torres Strait in Resolution MEPC.133(53). Australia amended its regulations and issued marine orders imposing a compulsory pilotage system in the Torres Strait. Australia's actions triggered protests from maritime states at the IMO and in bilateral diplomatic exchanges. This article examines the legal issues raised by Australia's establishment of a compulsory pilotage system in a strait used for international navigation, including the prospects for Australia being challenged under the compulsory dispute settlement provisions of the UN Convention on the Law of the Sea. It is recommended that the PSSA Guidelines of the IMO be amended to ensure that such legal issues do not arise in the future.     

Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?

This article examines the conclusion in the decision of the Arbitral Tribunal in the South China Sea Case that straight baselines may not be used to enclose off-shore archipelagos unless they meet the criteria set out in Articles 46 and 47 of the Law of the Sea Convention.     

Fishing for biodiversity: novel methanopterin-linked C transfer genes deduced from the Sargasso Sea metagenome

The recently generated database of microbial genes from an oligotrophic environment populated by a calculated 1800 major phylotypes (the Sargasso Sea metagenome-SSM) presents a great source for expanding local databases of genes indicative of a specific function. In this article we analyse the SSM for the presence of methanopterin-linked C1 transfer genes that are signature for methylotrophy. We conclude that more than 10 phylotypes possessing genes of interest are present in this environment. The sequences representative of these major phylotypes do not appear to belong to any known microbial group capable of methanopterin-linked C1 transfer. Instead, these sequences separate from all known sequences on phylogenetic trees, pointing toward their affiliation with novel microbial phyla. These data imply a broader distribution of methanopterin-linked functions in the microbial world than has been previously known.     

Maritime Legislation of Mainland China and Taiwan: Developments,Comparison, Implications,and Potential Challenges for the United States

In January 1998, Taiwan promulgated the Law of the Republic of China (ROC) on the Territorial Sea and the Contiguous Zone and the Law of the Republic of China on the Exclusive Economic Zone (EEZ) and the Continental Shelf, both of which came into force on January 21, 1998. On June 26, 1998, China adopted the Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf, which is the most significant maritime legislation since its 1992 Law on the Territorial Sea and the Contiguous Zone. This article studies the recent maritime legislation developments in Mainland China and Taiwan, the differences and similarities between the two sets of laws, their implications for the Asia-Pacific region, and the potential challenges for the United States.     

Can the United States Establish the Outer Limits of Its Extended Continental Shelf Under International Law?

Although most provisions of the United Nations Convention on the Law of the Sea are regarded customary international law and the United States views most of its provisions as such, the outsider status of the United States causes problems in some areas, especially concerning the continental shelf beyond 200 nautical miles. This article asks whether it is possible for the United States to establish the outer limits of its continental shelf beyond 200 nautical miles in line with international law without becoming a state party to the convention, and if that is possible, how could the United States proceed?     

The international legal regime for navigation

Thomas A. Clingan. The Law of the Sea: Ocean Law and Policy. 1994. San Francisco: Austin and Winfield. 638 pp. ISBN 1–880921–37–5 (hardcover), $89.95. ISBN 1–880921–28–6 (softcover), $69.95     

Municipal legislation for exploitation of the deep seabed

Abstract

This study traces the evolution of municipal legislation for the deep seabed in the United States of America and the Federal Republic of Germany, and considers what the United States seeks to gain and what it may possibly lose through its recent enactment of the Deep Seabed Hard Mineral Resources Act. The study concludes that the Deep Seabed Hard Mineral‐Resources Act will ensure for the United States that the minerals of the deep seabed are (if they can be) available when needed, and will strengthen the negotiating position of the United States in UNCLOS III vis‐à‐vis a proposed seabed regime which it perceives as inefficient toward the development of manganese nodules, and unacceptable in the system of governance it promotes. Passage of the Act, it is concluded, will probably not result in a breakdown of the Law of the Sea negotiations. It is thought it will give rise to a legal challenge, the outcome of which is difficult to predict. Finally, it is asserted that political/economic opposition to the Act will be mitigated by the reasonableness of the Act, its provision for delayed implementation, and the desire of many nations to conclude a successful Law of the Sea Treaty.     

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.     

The Southern Bluefin Tuna Arbitral Tribunal Did Get It Right: A Commentary and Reply to the Article by David A. Colson and Dr. Peggy Hoyle

This contribution is a reply to and a commentary on the article by David A. Colson and Dr. Peggy Hoyle, "Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?" 34(1) Ocean Development & International Law 59-82 (2003). Colson and Hoyle took the view that Southern Bluefin Tuna Tribunal did not reach the correct answer. The author's survey of the Southern Bluefin Tuna and the Mox Plant cases, in light of the doctrine of procedural and substantive parallelism between the umbrella UN Law of the Sea Convention and its numerous implementing special treaties covered by Articles 281-282, leads her to conclude that the Southern Bluefin Tuna Arbitral Tribunal did get it right.­     

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.     

Universalizing the Law of the Sea in the South China Sea Dispute

This article argues that a resolution of the maritime disputes in the South China Sea must be based upon a universalist framework where the maritime interests of the world are upheld. The article discusses the universalist framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the universalist approach taken by the Tribunal on 12 July 2016 in the South China Sea Arbitration regarding the extinguishment of a state's “exceptionalist” maritime claims and the adoption of strict criteria for the characterization of features at sea.     

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.     

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.     

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.     

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.