The “Arctic Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?

This article examines the so-called “Arctic exception,” Article 234 of the 1982 UN Convention on the Law of the Sea. Article 234 is intended to give the coastal state of ice-covered sea areas the necessary powers to prevent, reduce, and control vessel source pollution, which poses a particular risk to the highly sensitive Arctic marine environment. The aim of this article is to present a thorough interpretation of Article 234 in order to eventually evaluate the provision's significance for Arctic navigation, specifically in the Canadian Arctic and the Northwest Passage.     

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.     

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 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.     

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.     

Interpretation and Application of Article 298 of the Law of the Sea Convention in Recent Annex VII Arbitrations: An Appraisal

Article 298 of the UN Convention on the Law of the Sea allows state parties to exclude certain categories of disputes from the compulsory procedures entailing binding decisions. This provision serves as a “safety valve” by excluding sensitive issues mainly related to sovereignty. This article examines the three recent Annex VII Arbitral Awards (the South China Sea Arbitration; the Arctic Sunrise Arbitration; and the Chagos Marine Protected Area Arbitration) that assessed the interpretation and application of Article 298.     

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.     

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.     

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.     

In the Same Boat? A Comparative Analysis of the Approaches of Russia and Canada in the Negotiation of the IMO’s Mandatory Polar Code

Abstract

In the field of Arctic shipping, Canada and the Russian Federation have enacted extensive unilateral national regulations cognizant of Article 234, UN Convention on the Law of the Sea. On the global level, both states have been important actors in negotiating the International Maritime Organization’s mandatory Polar Code, a legal instrument with implications for regulations at the national level. This article compares and contrasts the approaches, positions, and arguments of Canada and Russia especially regarding national systems to control navigation and vessel-source pollution. The results suggest different emphases stemming from the two states’ political and economic realities and capacities.     

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.     

Precluding the Applicability of Section 2 of Part XV of the Law of the Sea Convention

Part XV of the Law of the Sea Convention (LOSC or the Convention) affords priority to section 1 of Part XV over the compulsory procedures entailing binding decisions laid out in section 2. This article examines the jurisprudence that has arisen with respect to Articles 281–283 of section 1 of Part XV. Article 281 allows parties to the Convention by agreement between them to opt out of compulsory and binding dispute resolution. Article 282 is a choice of forum provision that allows parties to prefer binding dispute resolution under the terms of another agreement “or otherwise,” such as by way of optional declarations under the Statute of the International Court. Article 283 requires the parties to a dispute concerning the interpretation or application of the Convention to exchange views regarding the appropriate means of settling that dispute before triggering the compulsory procedures entailing binding decisions of section 2 of Part XV.     

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.     

United States interests in the Arctic region

Abstract

The Arctic is a vast, forbidding and relatively unknown region. It covers about 14 million square kilometers of which 5.2 square kilometers is ice covered in summer and 11.7 million square kilometers in winter. It is a highly strategic region, and is the shortest distance between the two superpowers. It also contains vast resources, including oil, gas, and coal. Over 830,000 native peoples inhabit the Arctic Rim and have a culture that goes back 4500 years. The United Nations Convention on the Law of the Sea is generally applicable to the Arctic Ocean and has a special provision for ice‐covered areas. However, there are several unresolved jurisdictional and navigational problems between the United States and other Arctic Rim States concerning the Arctic's waters, including the Chukchi Sea, the Beaufort Sea and the Northwest Passage. Although the United States has paid some attention to the Arctic region in recent years, the Arctic still remains a relatively low priority interest for national policy and operational programs.     

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

This article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.     

Nord‐ und Südpolarmeer im Klimawandel. Ein biologischer Vergleich

Impacts of climate change on polar seas The polar seas in the Arctic and Antarctic are characterized by extreme cold and the prevalence of sea ice, which provides a unique polar habitat but also strongly affects the pelagic and benthic biota beneath. Life conditions for the marine fauna and flora differ considerably between the Arctic and Southern Oceans, as a result of contrasts in geography, geological history, as well as seasonal dynamics in light regime, sea ice cover and, hence, biological production. Climate change is particularly obvious in the Arctic Ocean and off the Antarctic Peninsula where warming results in a rapid shrinkage of the summer sea ice cover. Such decline threatens the sea‐ice communities and their associated fauna and will also have far reaching effects for the plankton and benthos of the polar seas.     

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.     

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.-     

A Note on the M/V “Louisa” Case

In the M/V “Louisa” case of 28 May 2013, the International Tribunal for the Law of the Sea held that it had no jurisdiction, even though it had established prima facie jurisdiction at the provisional measures stage. The M/V “Louisa” case thus gives rise to questions regarding the relationship between prima facie jurisdiction and jurisdiction on the merits. Moreover, the M/V “Louisa” Judgment also sheds some light on the applicability of the doctrine of abuse of rights provided in Article 300 of the UN Convention on the Law of the Sea.