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.     

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.     

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.     

Conciliation and the 1982 UN Convention on the Law of the Sea

Conciliation is an age-old peaceful means of dispute settlement. The UN Convention on the Law of the Sea provides for both voluntary and compulsory conciliation. The importance of conciliation under UNCLOS is obvious, yet it has received little focused attention.     

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.     

Disputed Areas and the 10-Year Time Frame: A Legal Lacuna?

Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.     

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.     

Deep seabed mining: A definition of the problem

Abstract

The prospects for deep seabed mining in this century appear remote. The U.N. Convention on the Law of the Sea was closed for signature on December 10, 1982. As of that date, 155 nation‐states and four entities had signed, but not the United States and some others. Since that time, the United States has endeavored without much success to develop a “Reciprocating States Agreement”; that would legitimate seabed mining with or without the U.N. Convention. On the other hand, the Preparatory Commission has met six times and is making only modest progress without the participation of the United States, the United Kingdom, and the Federal Republic of Germany.     

Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf

Several of the summaries of recommendations of the Commission on the Limits of the Continental Shelf contain recommendations involving the application of the provisions of Article 76 of the 1982 UN Convention on the Law of the Sea with respect to a class of morphological features that can best be described as seafloor highs. The application of these provisions requires the classification of such features into one of the three categories of seafloor highs: oceanic ridges of the deep ocean floor, submarine ridges, and submarine elevations that are natural components of the continental margin. The summaries of the CLCS recommendations provide guidance on the approach that has been adopted for the application of these provisions. Furthermore, the summaries give insight into the principles by which the CLCS is guided in considering the submerged prolongation of the landmass of a coastal state and the delineation of the outer limits of its continental shelf beyond 200 nautical miles, and the importance of determining the foot of the continental slope at its base in this connection.     

The Legal Status of the Russian Baselines in the Arctic

The validity under international law of the straight baselines the Soviet Union established in the Arctic and that Russia maintains are examined. For the purpose of comparison with the Russian regime, the issues surrounding the international regimes of baselines are analyzed. The results are then compared, as well as the practice of the main opponent with navigational interests in the area, the United States. It is found that while many of the enclosures fail the traditional criteria for establishing straight baselines and basepoints as well as the traditional criteria for enclosing bays, due to the moderate degree of deviation, largely unopposed by other states, the Russian practice cannot be said to be inconsistent with international law. At the same time, although the waters enclosed can be claimed as internal waters under the Anglo-Norwegian Fisheries Case , Article 5(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone (TSC), and Article 8(1) of the 1982 United Nations Convention on the Law of the Sea (1982 Convention), they are still subject to TSC Article 5(2) and 1982 Convention Article 8(2). If the waters enclosed thus could not previously have been considered as internal waters, the right of innocent passage exists.     

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 2001 UNESCO Underwater Cultural Heritage Convention and Taiwan's Domestic Legal Regime

The United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention on the Protection of the Underwater Cultural Heritage (the UCH Convention) on November 2, 2001. The Convention created a comprehensive legal framework for the preservation, protection, and management of underwater cultural heritage. This article illustrates that the UCH Convention not only supplements, but also substantively amends, the relevant rules contained in the 1982 United Nations Convention on the Law of the Sea. This article, using the domestic legislation of Taiwan as an example, demonstrates some of the difficulties of implementing the UCH Convention into national law.     

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.     

A review of the enforcement regime for vessel‐source oil pollution control

Abstract

The purpose of this article is to identify the currently applicable international law intended to regulate vessel‐source pollution. Part I delineates the elements relevant for this study. Part II discusses the development of a sequence of incremental conventions. Part III examines the significance and weaknesses of the 1973 MARPOL Convention with its 1978 Protocol and of the 1982 UN. Convention on the Law of the Sea. Part IV explores alternative and/or supplementary legal approaches for handling the vessel‐source oil pollution threat.     

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.     

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.     

“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.     

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.     

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.­     

Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention

This contribution examines and points out the inadequacy of the provisions of Part III of the 1982 Law of the Sea (LOS) Convention to combat marine pollution in straits used for international navigation without infringing the right to transit passage of all user states. It stresses that it is the environmental obligation of all user and strait states to protect the marine environment of straits used for international navigation. To this end, this paper proposes that Part III of the 1982 LOS Convention be reconsidered and a "Guarantee of Freedom of Navigation--Environmental Impact Statement" be adopted by user and strait states.