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.     

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.     

Natural Prolongation: A Living Myth in the Regime of the Continental Shelf?

Since the 1969 North Sea Continental Shelf cases, natural prolongation has been a semisacred expression that characterizes the continental shelf. This article examines whether this notion is still viable. A comparative study of its current use in the U.N. Convention on the Law of the Sea against its original use reveals misunderstandings in three key aspects: entitlement, delineation, and delimitation of the continental shelf. This article concludes that natural prolongation no longer constitutes a pivot in the legal understanding of the continental shelf.     

The Timor Sea Conciliation (Timor-Leste v. Australia): A Note on the Commission's Decision on Competence

The Timor Sea Conciliation is the first experience with the compulsory conciliation under Annex V of the 1982 United Nations Convention on the Law of the Sea. The Conciliation Commission addressed the objections to its competence as a preliminary matter and rendered a separate decision. This article examines the approach of the Conciliation Commission in dealing with its competence issues and the understandings of the Conciliation Commission as regards the relevant provisions of the 1982 Convention.     

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.     

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.     

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 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.     

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.­     

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.     

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.     

Governing the Bering Strait Region: Current Status,Emerging Issues and Future Options

This article examines the existing governance arrangements applicable to the Bering Strait Region (BSR), assesses the emerging needs for governance in the region, and considers options for addressing these needs. Widely regarded as a critical chokepoint between the North Pacific and the Arctic Ocean (and its marginal seas), the BSR is subject to a variety of regimes, ranging from global constitutive arrangements (e.g., 1982 United Nations Convention on the Law of the Sea) to bilateral operational arrangements. The growth of human activities in the BSR, associated with transformative changes occurring in the Arctic in recent years, is generating new needs for governance. This article reveals options that can be used or ignored by decision makers, in contrast to recommendations that may involve advocacy, with the single objective of contributing to informed decision making in this realm.     

Why the 2008 Sino-Japanese Consensus on the East China Sea Has Stalled: Good Faith and Reciprocity Considerations in Interim Measures Pending a Maritime Boundary Delimitation

This article examines the 2008 Sino-Japanese Consensus on the East China Sea in the context of the seemingly vague obligations in the Law of the Sea Convention regarding overlapping claims for states to “make every effort to enter into provisional arrangements of a practical nature.” The conclusion reached is that, while the claims of the two states in the East China Sea are based in good faith, there is a lack of reciprocity in the Consensus that helps explain it's fragile nature.     

Science,sovereignty, and the third law of the Sea Conference

Abstract

The international law of marine scientific research is currently in flux. Efforts are under way at the Third Law of the Sea Conference to produce a treaty that, among other things, would make the law of research more uniform and certain. Sortie areas of disagreement certainly still exist in the Conference negotiations. Nonetheless, the negotiations have produced proposed treaty provisions concerning the law of research that have met with substantial approval. At this point, it does not appear likely that the Conference will produce major alterations in the main body of these provisions. These proposed treaty provisions indicate the future direction the law of research will take. Even if a workable treaty does not result from the negotiations, these provisions will undoubtedly inform customary international law. This article examines both the areas of agreement and the areas of disagreement at the Third Law of the Sea Conference in an effort to understand the probable future legal regime under which marine scientific research will be conducted.     

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.     

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.     

The Curious Case of Article 281: A “Super” Provision within UNCLOS?

This article discusses the issue of treaty regimes in parallel to the United Nations Convention on the Law of the Sea in respect of peaceful settlement of disputes concerning the interpretation or application of the Convention. The duality in relevancy of such disputes to two treaties at the same time would have begged the question about which treaty should be applied to settle them, but UNCLOS has a clear, conflict-of-law style rules in place to address the question. Article 281(1) is one such rule, and, with its exclusionary effect, stands out as a super provision of the Convention.     

Pulsatile blood flow, shear force, energy dissipation and Murray's Law

Background  

Murray's Law states that, when a parent blood vessel branches into daughter vessels, the cube of the radius of the parent vessel is equal to the sum of the cubes of the radii of daughter blood vessels. Murray derived this law by defining a cost function that is the sum of the energy cost of the blood in a vessel and the energy cost of pumping blood through the vessel. The cost is minimized when vessel radii are consistent with Murray's Law. This law has also been derived from the hypothesis that the shear force of moving blood on the inner walls of vessels is constant throughout the vascular system. However, this derivation, like Murray's earlier derivation, is based on the assumption of constant blood flow.     

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.     

Enhancing Safety,Security, and Environmental Protection of the Straits of Malacca and Singapore: The Cooperative Mechanism

In November 2004, the International Maritime Organization, as part of its Protection of Vital Shipping Lanes Initiative, decided to convene a high-level conference to address the security of ships plying the Straits of Malacca and Singapore in collaboration with the three littoral states of Indonesia, Malaysia, and Singapore. Three meetings were held over the period 2005 to 2007. The outcome was the creation of a framework for cooperation between the users of the straits and the littoral states known as the Cooperative Mechanism, a historic breakthrough as Article 43 of the Law of the Sea Convention was implemented for the first time. This article outlines the decisions made at the three meetings, analyzes the responses of the various stakeholders during the meetings, explains the reasons for the success of the Cooperative Mechanism, and concludes by proposing ways in which the momentum of cooperation between the users and the littoral states could be sustained.