LAW OF THE SEA: PROF. KENNEY SPRING 2011

HISTORICAL DEVELOPMENT (CH. 1)I. UNCLOS Preamble :

a. Prompted by maintenance of Peace, Justice, Progressb. Conscious that ocean space is closely interrelated, needs to be considered

as a wholec. Promote Efficient utilization of resources, conservation of resources, study,

protection & preservation of the marine environmentd. Take into account interests of developing countries (coastal & land-locked)e. Resolution 2749 declaring seabed & ocean floor heritage of mankindf. Affirming that matters not regulated here are covered by general IL

II. Sources of Int’l Law a. ICJ Statute, Art 38(1)

i. Customary Law : Results from a general and consistent practice of states + opinio juris: a sense of legal obligation1. How much practice is required? How much consistency is required?2. Persistent Objector (silence is considered acceptance)

a. Uncertaintyb. Ex: US refused to accept territorial seas claims in excess of 3 miles until

1980i. Freedom of Navigation Program Navy shows they object if a

country is going to far, like banning warships in the EEZ3. Dissenters bound if it’s a jus cogens rule

ii. Int’l Agreement/Treaties/Conventions : Creates law for the states party thereto and may lead the creation of customary int’l law when such agreements are intended for adherence by all states generally and are widely accepted

iii. General Principles : Common to the major legal systems, even if not incorporated or reflected in customary law or int’l agreements, may be invoked as supplementary rules of int’l law where appropriate

iv. Judicial Decisions and scholarly writing

III. Background & Historical Development a. Hugo Grotius: Freedom of the Seas/Mare Liberum (1609): Sea is international

territory that everyone may use for trade. Wrote to defend Dutch East India Company breaking up various monopolies.

b. John Seldon (Mare Clausum): Seas are as capable as being appropriated as land. Exclusive Uses.

c. Pre WWI:i. Customary Lawii. 3NM Territorial Sea

1. Innocent Passageiii. High Seas

d. Post WWII:

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i. Emergence of USA/USSR Superpowers shared an interest in maximizing the freedom of maritime communication & nationalism and demands for economic autonomy of developing countries

ii. Uses of seas multiplied & intensified as a result of developments in technology and increasing demand for resources

iii. Off-Shore Oil Productioniv. Development of Nuclear capabilitiesv. Expansion of Fisheries – new technology increase competition between

nations, they could travel further, protect from overfishing + pollutionvi. Beginning of Tanker Traffic: threat of pollution from tankers, pressure

from coastal States for tighter controls over vessels passing near their coasts protect fisheries and tourism

e. Truman Proclamation (1948?)i. First to claim resources on the continental shelfii. Justifications:

1. World wide need for petroleum, make new supplies available2. Experts are of the opinion that there are resources on our shelf

and with technological progress we can recover these resources3. In the interest of conservation jurisdiction should be taken

iii. Territorial Sea at the time was 3 milesiv. *Chile, Ecuador and Peru cites the Proclamation to say each had

Exclusive and Sole jurisdiction 200 miles out (did not limit to resources on the seabed like Truman)

v. Kicked off the idea that we may need a treaty to lay this stuff outf. Santiago Declaration (1940)

i. Chile made a claim to control access of all vessels within 200 miles of their coast

ii. Indonesia made a similar claim to exclude vessels from their watersg. UNCLOS I (1958 Convention):

i. 4 treaties : Territorial Sea/Contiguous Zone, High Seas, Continental Shelf, Fisheries/Conservation (not much participation in fish treaty)

ii. Issues :1. Maximum Breadth of Territorial Sea: No Agreement2. Maximum Breadth of Contiguous Zone: 12 NM Contig Zone3. Coastal State Control Over Fishing: Territorial Sea Only4. Coastal State Control Over Continental Shelf Resources: Depth of

200 Meters of “Exploitability”iii. No dispute resolution

h. UNCLOS II (1960-FAILED): Attempted to decide issuesi. Trend of coastal states claiming more and more jurisdiction worried the

USii. Not many states were a party: focused on maritime power interestsiii. Marine environment became more importantiv. Almost had 6 mile territorial sea but failed by 1 votev. No discussion on transit passage through international straits

i. UNCLOS III (1982 Convention): 161 parties as of Dec 2010. LOS Convention (as amended) entered into force 16 Nov 1994.

i. US and Soviet Union wanted a stable LOS regime to avoid WWIIIii. “Common heritage of mankind” wealth of the seabed, seems

Communist to Westernersiii. Various Interest Groups:

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1. Major Maritime Powers (Russa, UK, FR, UK, US, Japan) 2. Group of 77 (third world nations, lacked money/technology to use

mineral resources in the seabed)3. Archipelagic States, 4. Broad Margin States (big continental shelf), 5. Landlocked and Disadvantaged States (no coast)

iv. Consensus Procedure, Final 2/3rd vote in plenary: 130 in favor, 4 against, 17 abstentions

1. Israel, Turkey, U.S. and Venezuela against2. UK, Russia and West Germany among abstentions

v. Established 200 mile EEZ, extended territorial sea to 12NMvi. US Relationship: US did not ratify because of sea bed resources. Treaty

created an authority to divide up the resources. Later the economics turned out to be not realistic and an “implementing agreement” gutted most of the “sharing” stuff so most of the developed countries joined. President Clinton signed in 1994, but Senate has not ratified. (since we signed, cannot commit acts that would defeat object & purpose of treat)

1. 1983 US Oceans Policy Statement: Navigational provisions confirm existing maritime law and practice and represent a fair balance of interests of all nations. US will accept and act in accordance with the navigational provisions

a. Took the benefits without signing2. 1994 Letter of Transmittal Forwarding LOS to Senate:

a. Convention advances interests of the US:i. Preserves the right to use oceans to meet national

security requirements and of commercial vessels to carry sea-going cargos

ii. Provides for an Exclusive Economic Zoneiii. Is a far-reaching environmental accord addressing

marine pollutioniv. Provides access to coastal waters for Marine Scientific

Researchv. Provides dispute resolution procedures to enhance

compliance with the conventionvi. Provides a stable, internationally recognized framework

for mining the The Deep Seabedvii. Status as CIL: Mostly considered CIL. Reagan issued a statement

saying that US accepted most (except deep mineral stuff) as CIL. The US has been trying to push it into CIL so that they can take the good w/o the bad. Other states annoyed because it was negotiated as a give and take. Now US is saying we’ll take all the good stuff, but we don’t have to give anything up. Reservations weren’t allowed, because it was a package deal. In the Gulf of Marine Case, the ICJ basically says that most of LoS is CIL.

viii. Overview of Jurisdictional Zones: Convention creates zones, closer to the state the greater their rights, further away the lesser the exclusive rights of the state

j. 1994 Implementing Agreement: stipulates that parts of Part XI of UNCLOS shall not apply, ISA will be cost-effective, take decisions in a manner that does not override the interests of industrialized nations, and approach regulation of resources in deep sea in a sound commercial fashion.

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1. There are around 2-dozen states that ratified before July 28, 1994 but have not ratified the Implementation Agreement – in theory they could choose to remain bound by original rules on deep-sea-bed mining but since in practice it will take place under the 1994 agreement, the choice is illusory

2. Interesting considering:a. Art 309 and 310: UNCLOS does not permit reservations

(BUT states have made ‘declarations’)b. Arts 311-17: procedures for amending the treaty are

protracted and only open to party states3. After the 1994 agreement states ratify: Australia, Chile, China,

Finland, Germany, India, Japan, Malaysia, Netherlands, Norway, Russia, UK

4. US signs the implementing agreementk. 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish

Stocks: gives substance to the principles concerning the conservation and management of fish stocks set out in Parts V (EEZ) and VII (High Seas)

i. Only 18 ratifications by 1998, needs 30 to enter into force

IV. Corfu Channel Case (UK v. Albania) ICJ 1949a. RULE:

i. You don’t need coastal state permission to exercise the right of innocent passage in a strait used for international navigation

ii. There is no right for a coastal state to prohibit such passage through a strait in time of peace

1. Leaves open the question if you can close it during times of war

2. Doesn’t matter if there are optional routes, doesn’t have to be a necessary route

b. Refers to 3 separate instances:1. Albania fired at UK ships in the channel May 1946

a. UK said the ships are engaged in innocent passage in an international strait

b. Albania: no, foreign warships have no right to be in Albanian territorial watersi. Warships were in a diamond formation, had soldiers on board,

crew was at action stations, number of ships/armaments surpassed what was necessary, intent to intimidate/observe coastal batteries

ii. Court: No, the mission was to affirm a right and they took reasonable steps that did not make the passage not innocent

2. UK ships hit mines (October)a. In a line formation, guns were not pointed at Albaniab. 45 people diedc. Albania denies laying the mines

3. UK conducted mine-clearing operations in Albanian territorial waters (Nov)a. Court: Contrary to clearly expressed objections, did not have consent

of international body that usually clears mines, no right to self help in this case. Don’t want countries to take matters into their own hands.

c. Current state of the law:

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i. Right of transit passage in straits in international law1. Right to be in a formation

ii. Innocent passage in territorial seaiii. Submarines have to be on the surface with flag flown to engage in

innocent passaged. Holding: UK did not violate Albania’s sovereignty the 1st two times by passing

through but they did when they swept the channel for more mines; Albania has to pay equivalent of 20 million. UK violated innocent passage when they swept the channel for mines, not continuos/innocent

V. Geographic Examples:a. Strait of Hormuz : a great deal of oil goes through this choke point between

Saudi Arabia and Iranb. South China Sea

i. Spratly island are claimed by many countries, disputedii. Potentially very rich in oil and other natural resourcesiii. Parcel Islands are also an area of dispute

c. Korean Maritime Border i. Northern Limit Line by UN vs. North Korea’s Limit (do not claim the 3

islands, but want the ocean around it)ii. Freedom of navigation in EEZ

VI. Current Eventsa. Bandow: Sink UNCLOS Treaty

i. Redistributionist Approach: “LOS was designed to transfer wealth and technology from the industrialized states to the Third World.”

ii. Deep Sea Bed Authority: mining approval would discriminate against US1. No Guarantee of commercial viability of mining2. Authority would be costly

iii. Positives: environment, resource management, rights of transit (But its basically reflecting CIL), navigational freedom

b. Schachte: Don’t Scuttle Sea-Law Conventioni. Convention is good for America’s national securityii. Other side is wrong:

1. Transfer of technology was eliminated in the 1994 agreement2. Art 19 defines innocent passage in ways that more clearly protect our

interest than the more general language in the 1959 Convention3. Art 20 merely repeats the rule from 1958 that submarines are to

navigate on the surface in foreign territorial seas to enjoy innocent passagea. We also got an important exception to this rule in the convention

for submerged passage through straits that wasn’t in the 1958 version

4. Treaty does not give UN authority to levy taxes5. Parties can choose their method of dispute resolution6. US has excepted out certain types of disputes (military activities)

iii. UNCLOS establishes a stable and predictable legal framework for uses of the oceans

iv. Provides dispute resolutionv. Promotes access to coastal waters for marine scientific research

c. Somalia Pirates – NY Times Jan 18 2011

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i. Struck more ships and took more hostage than in any year on recordii. Somalia, Nigeria, Indonesia, Bangladeshiii. Hijackings cost shipping companies, and higher ransoms in turn allow

pirates to get better equipmentsiv. No functioning central government in Somalia for 20 years

VII. Strait of Gibraltar Jan 28, 2011a. Ship collided with Danish Tanker

VIII. Why do some states only claim a 3NM territorial sea?a. Transit Passageb. They might overlap and create an international strait. If you each only claim 3

than the area in the middle is a high seas corridor, freedom of navigationc. Innocent passage: territorial watersd. Transit Passage: in the contiguous zone, etce. Freedom of Navigation: international strait

BASELINES (CH. 2)

I. Baselines : demarcation between that martime area (internal waters) where other states enjoy no general rights, and those maritime areas (the territorial sea and other zones) where other states do enjoy certain rightsa. Normal baseline: (5) low-water line along the coast marked on large-scale

charts officially recognized by the coastal stateb. Art 6: Reefs: not limited to atolls or coral reefs

i. Only reefs exposed at low tied may be used as baselinesii. ‘fringing reef’ not cleariii. what happens when there is a gap in fringing reef?

c. Art 7 Straight baselinesi. (1) system of straight baselines ‘may’ be used in localities where the coastline

is deeply indented and cut into, or fringe islandsii. (3) Straight baseline must not depart from the general contours of the coast

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iii. (4) Straight baselines shall not be drawn from low-tide elevations unless lighthouses or similar installations which are permanently above sea level have been built on them, or received international recognition

iv. (5) Account maybe taken of economic interests, USAGEv. (6) Cannot cut off from the high seas the territorial sea of another statevi. Key problem with the articles is that it doesn’t provide any specific guidance,

such as how long a straight baseline can be1. Ex: Norway skjaergaard, a baseline of a series of straight lines

connecting the outermost points on the skjaergaard (Anglo-Norwegian Fisheries Case (1951))

2. Ways to breach p. 39-40d. Art 9: Rivers: baseline is a straight line across mouth of a river that flows directly

into the sea between points on the low-water line of its banks.i. Distinction between Estuary and River is open to abuse

ii. Delta: baseline constituted by low-water mark or in some cases by straight baselines

iii. No limit placed on river closing linee. Art 10(4): Bays

i. Semi-Circle Testii. Baseline is the start of your measurements, 12 miles is your territorial sea.

The further seaward you can push it, the betteriii. Provides good guidance

1. Distance of low water markers of natural entrance point of bay 2. 24 Mile max bay closing line

iv. Ambiguity: where is the ‘natural entrance point’ of an indentation?v. Historic Bays: CIL, State may validly claim historic bay if for a considerable

period of time the bay has been claimed as internal waters and has effectively, openly and continuously exercised its authority there in and the claim has been acquiesced to by other States

vi. Bays bordered by more than one state: baseline is drawn by the low-water mark around the shores of the bay

f. Art 11 Harbour Works: they count as forming part of the coast if they are very close, but off-shore installations and artificial islands don’t count

g. Art 12 Roadsteads: included in territorial seah. Art 13 Low-Tide Elevations: if its located within the territorial sea, it can be used

as a baseline for measuring breadth of territorial seai. Art 16: Charts and Publicity may help reduce abusej. Art 50: Archipelagic State: baseline can be drawn around outermost points of

archipelago itselfk. Art 121(2): Islands

i. Low Tide elevation is not considered an islandii. Artificial islands (def is vague) do not have a territorial seaiii. Occupation is not a necessary condition to be an islandiv. 121(3): Islands in principle can serve as a baseline for all maritime zones but

a “rock” can generate ONLY territorial sea and contiguous zone but NOT EEZ or Continental Shelf1. Difference between ‘rock’ and island is ambiguous

INTERNAL WATERS & NATIONALITY OF SHIPS (CH. 3/13)

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II. Internal Waters (Art 8): All waters landward of the baseline from which the territorial sea and other maritime zones are measured, (juridicial/historic bays, ports, harbors, rivers, lakes, inland seas, canals)a. Coastal State exercises:

i. full sovereignty (Art 2(1)): extends into territorial sea & air space over it & bed & subsoil

ii. subject to the rights of safe haven/safe harboriii. NO right of innocent passage, but does exist in newly enclosed waters

where straight baselines are drawn along a coastline that is deeply indented (8(2))

iv. Many countries grant standing permission to enter waters or Friendship & Navigation treaties

v. Local jurisdiction enforced when State’s interests are engaged, at request of captain or where a non-crew member is involved1. Pollution, pilotage and navigation laws routinely enforced

b. Int’l Ports: presumed to be open to international merchant traffic, but not a right in customary international law

i. States have the right to nominate which ports are open to int’l tradeii. State may close even int’l ports to protect vital interests including security,

prevention of pollution, or signaling political displeasureiii. States have wide right to prescribe conditions for access to their ports

1. Could be limited by treaty obligations to permit free transit for trade purposes (Ex: Art V of GATT)

iv. Force Majeure Exception: right of entry to ports in order to preserve human life 1. Unclear about ship/cargo, most countries agree that the exception does

not require them to let the ship enter2. Ship in distress can drop anchor and ride out storm in territorial sea

III. Right of Entry a. Saudi Arabia v. ARAMCO

i. “…the ports of every State must be open to foreign merchant vessels and can only be closed when the vital interests of the State so require.”

ii. Statement is not well acceptediii. Actual Law is the a state can refuse any country into their ports or make up

any restrictionsb. Friendship, Commerce and Navigation Agreements

i. US would argue that aircraft have a similar right of force majeureii. Nicaragua v. U.S.

c. Art 211(3) Pollution from Vessels: states can establish requirements to prevent pollution as a condition for entry into ports/internal waters, give publicity

d. No right of access to navigable rivers within one state, wider rights in international rivers (canals treated similiarly)

IV. Right of Exit a. Subject to limitations:

i. States can arrest ships in port (ex: customs offenses)ii. Detain ships that are unseaworthyiii. Liable to arrest as security in civil actionsiv. Require ships to obtain clearing papers from port authorities

73(2), 226(1), 292: Any ship arrested for violation of a State’s EEZ must be promptly released upon posting of a reasonable bond or security, may not be detained in port

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V. Nationality of Ships a. Art 90: Right of Navigationb. Art 91: Nationality of Ships

i. Indicates what rights a ship enjoys, what obligations it is subject to, which state exercises flag State jurisdiction over vessel, is responsible in int’l law for the vessel and can exercise diplomatic protection behalf of vessel

ii. 91(1): “Genuine Link” unclear1. Flags of Convenience

a. Lower fees & taxation, lower crew costs (Panama, Liberia, Cyprus, Bahamas, Malta, St. Vincent and the Marshall Islands)

b. More than half the world’s merchant ships are registered under 3-5 countries

c. Unwilling or unable to enforce pollution/safety regsd. Denmark, Norway & Germany have international registers in parallel to

their existing national regimes to compete with flags of conveniencee. In practice links are tenuous and other states are disinclined to

challenge links2. United Nations Convention on the Condition for Registration of Ships

(1986)a. Not yet in forceb. Requires clear link, register form, States must maintain maritime

administrationc. Art 92: Status of Ships

i. (1) Can sale under only 1 flag at a timeii. (2) If you switch flags during a voyage, you have no nationality, cannot claim

either State and anybody can take jurisdiction over youd. Art 93: UN/IAEA

i. Ships can fly under UN or IAEA flag onlye. Art 94: Duties of the Flag State

i. States must “register” vessels authorized to fly its flagii. Assume jurisdiction over vesseliii. Ensure ships flying its flag are safe: construction, equipment & seaworthiness

1. Manning of ships, crew, training, labour conditions2. Maintenance of communications

iv. Kuwait’s request to register US/USSR/British flags during the Iran Iraq War (1987)v. US Reflagged & Protected 11 Kuwaiti Oil Tankers to support US security

interests (1) help Kuwait counter immediate intimidation and discourage Iran from similiar attempts on other gulf nations and (2) to limit increase in Soviet military presence in the Gulf (3) facilitate oil transport

vi. Some argued that US had violated its nuetralityVI. Sovereign Immunity

a. State Vessels/Aircrafti. Government owned or operatedii. For non-commercial purposesiii. Includes naval auxiliaries

b. Art 29: Definition of warshipi. Operated by Commissioned units of an armed forceii. External Military markingsiii. Crew under military disciplineiv. Commanded by a military member

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c. Art 30: Noncompliance within the territorial seai. Costal State can have a warship leave the territorial sea immediately if it does

not comply with lawsd. Art 31: Responsibility of Flag State

i. Flag State is responsible for any damage/loss to Coastal State resulting from non-compliance by a warship or government ship

e. Art 32: Immunity of Warshipsi. Warships/government ships are immune UNLESS 30/31 happensii. Immune from:

1. Arrest and Seizure2. Search or Inspection3. Non-consensual boarding4. Taxes

f. Art 96: Immunity on the High Seasi. Ships used only on government non-commercial service are completely

immune from jurisdiction of any state other than the flag stateg. Art 236: Sovereign Immunity

i. Parts of LOS regarding protecting marine environment do not apply to warship, naval auxiliary, other vessels/aircraft own by a state and used only on government non-commercial service. But each state should ensure that these vessels act in a matter consistent as reasonable with the convention

VII. Saint Vincent and the Grenadines v. Guinea/ MV Saiga Casea. Facts: M/V Saiga arrested off the coast of West Africa by Guinea Government

south of EEZ. Ship is an oil tanker that supplied oil to fishing vessels. No bond or security requested by Guinean authorities.

i. SV: Guinea failed to notify them of reasons for detention. Guinea did not comply with Art 73(2) & set a bond. Saiga did not enter territorial waters.

ii. Guinea: MV Saiga involved in smuggling/piracy & detention took place after exercise of hot pursuit w/ Art 111. Tribunal has no juris. Enforcing customs laws.

b. Holding: i. Tribunal has jurisdiction under Art 292ii. Log book shows ship was in Contiguous zone, no hot pursuitiii. Guinea shall promptly release MV Saiga & Crew and post security of 400,000

US Dollars and amount of gasoil dischargedc. Art 292: Where government have detained vessel of another state and its

alleged that the detaining state has not complied with requirements of the convention for the prompt release of the vessel, question of release of detention may be submitted to the tribunal

i. Prompt release is important because ships are expensive to maintain and send out, don’t hold up commerce

TERRITORIAL SEA AND INNOCENT PASSAGE (CH. 4)I. Art 2: Legal Status of the Territorial Sea

a. Sovereignty of Coastal State extends to territorial sea, air space, bed & subsoilII. Art 3: Breadth of the Territorial Sea

a. A right to establish UP TO 12 NM max

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b. Shift toward 12 mile was a reflection of a desire to bring coastal waters fishing, pollution and etc under national control)

III. Art 17: Right of innocent passagea. Right of all shipsb. Regardless of armament or means of propulsionc. Surface onlyd. Cannot be conditioned on prior notification or authorizatione. NO right of innocent passage for aircraft because of dangers inherent in their

speed & ability to avoid detectionf. NO right for subsoil b/c that would imply a freedom to mine

IV. Art 18: Definition of Passagea. (2) Continuous and Expeditious

i. Includes stopping and anchoring incidental to normal navigation1. OR Force majeure2. OR Rendering assistance to persons/ships/aircraft in danger

b. SuspendableV. Art 19: Meaning of Innocent Passage

a. (1) Passage not prejudicial to peace, good order, or security of coastal stateb. (2) Not an exhaustive list, there are other things you could do that would be

prejudicial to security. i. No threat, force, weapons, collecting information, propaganda, launching

aircraft/military devices, unloading commodities, willful and serious pollution, fishing, research, or interfering with communications

ii. (L) is a pretty broad catch alliii. List of activities sort of implies that mere presence of a ship is not enough

1. on the other hand, if the list is non-exhaustive then these acts are automatically non-innocent wheras under 1958 it would have been necessary to show that the acts prejudiced the peace, good order or security of the coastal state.

2. 2(a) is wide enough to encompass threats against other coastal statesVI. Art 20: Submarines

a. Navigate ON THE SURFACE and SHOW FLAGb. One of the arguments against US becoming a party is that it restricts our

submarines from navigating under water, though the Navy isn’t worried about this

c. *Some argue that since all submarines are warships, this article implies a right of innocent passage in the territorial sea for warships. Around 40 states currently demand prior notification for passage of warships

VII. Art 21: Coastal State Regulationa. (1) Areas subject to regulation include: navigation, traffic, navigational aids,

cables, pipelines, living resources, fisheries, pollution, scientific research, customs, fiscal, immigration, sanitary laws

b. (2) Shall NOT apply to Design, construction, manning or equipment of shipi. IMO takes care of that

VIII. Art 22: Sea lanes and traffic separationa. May designate when necessary to safety & navigation, particularly for tankers

carrying nuclear substancesIX. Art 23: Ships carrying Nuclear-powered/dangerous or noxious substances

a. Must carry documents and observe special precautionary measuresb. Several states exclude them from ports or have nuclear free zones, but under

the treaty it seems like you can’t do that

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c. Authorized in Art 22 to confine these ships to certain sea lanesX. Art 24(1): Duties of coastal State

a. Not Deny or impair innocent passageb. Not discriminate against ship or cargoc. Policing and maintaining order, buoying and marking channels & reefs,

sandbanks & other obstacles, keeping navigable channels clear & giving notice of danger of navigation, providing rescue services, lighthouses, lightships, bell-buoys, etc

d. Give notice of navigational hazards (Corfu)XI. Art 25: Rights of Coastal State

a. (1) Take steps to prevent non-innocent passage b. (2) Prevent breach of conditions of entry

i. Can suspend right of innocent passage – only without discrimination – if is essential for the protection of security, must be duly published FIRST (but NOT in an international Strait)

XII. Art 26: Chargesa. No tolls in territorial seab. You can levy charges if they receive specific services

XIII. Art 27: Criminal Jurisdictiona. (1) Cases subject to coastal state jurisdiction

i. Should not be exercised EXCEPT:1. If consequences extend to coastal state, 2. Disturbs peace the country or good order of territorial sea3. Master of ship or flag state requests it4. Necessary to suppress drug trafficking

b. (5) EXCEPT as provided in EEZ & Marine Env. Sections, you cannot arrest a ship for a crime committed outside the territorial seai. Typically can’t arrest somebody in connection with a crime that occurred

outside zone if they are just exercising innocent passageXIV. Art 30: Non-compliance by warships

a. Require to leave territorial sea if:i. Violation of laws or regulations or passage is not innocent AND

b. Does not take corrective action Resolve differences diplomaticallyc. Use Minimum force to leave

XV. Art. 32: Warships have immunityXVI. Full Coastal State sovereignty subject to right of:

a. Innocent Passageb. Transit Passagec. Archipelagic sea lanes passaged. Safe haven/safe harboure. Assistance entryf. May close temporarily for security except in straits

XVII. Presidential Proclamation 27 Dec 1988a. Territorial sea henceforth extends to 12 NM from the baselines of United States

determined in accordance with international lawb. The ships of all countries enjoy the right of innocent passage and the ships and

aircraft of all countries enjoy the right of transit passage through international straits

XVIII. Straits and Transit Passage (Ch. 5)a. The 1958 Convention treated straits the same as territorial seas

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b. Art 34: Legal status of waters forming straitsi. Straits are usually between one part of high seas & EEZ and another part of

high seas & EEZc. Art 35(c): Long-standing international conventions not effectedd. Art 36: high seas or EEZ corridors

i. STRAITS WHICH ARE EXCEPTED: 1. 36: There is a high seas/EEZ route of similar convenience

a. Freedom of navigation in high seas and innocent passage through bands of territorial seas on either side

b. Florida Strait2. 38(1): Strait formed by an island bordering the strait and its mainland

a. Non-suspendable right of innocent passageb. Strait of Messina

3. 45: Straits connecting high seas/EEZ with territorial sea of a 3rd statea. Non-suspendable right of innocent passageb. Ex: Strait of Tiran

e. Art 38: Right of Transit Passagei. (1): Island Exception transit passage shall not apply if there exists

another route of similar convenienceii. (2) Freedom of Navigation & overflight for purpose solely of continuous

and expeditious transit between one part of EEZ and high seas and other part of EEZ/high seas; no criterion of innocence

iii. (3) Any activity that is not an exercise of transit passage, have to follow rules of territorial sea

f. Art 39: Duties of ships and aircrafti. Proceed without delayii. Refrain from any threat or use of force or violate UN Charteriii. Continuous & Expeditious as to normal mode of passage unless necessary

by force majeure or distress1. US claims that subs don’t have to be surfaced in transit passage

because that’s the “normal mode” of passageg. Art 40: Research and survey activities need authorization of bordering

Statesh. Art 44: Duties of bordering States do not hamper transit passage and

give appropriate publicity to any dangersi. Art 45: Innocent passage (similar convenience and territorial sea of a

“foreign state”i. No suspension

XIX. Transit Passage Straitsa. Connect area of high seas/EEZ with another area of high seas/EEZb. Overlapped by territorial seasc. No high seas of EEZ route of similar convenience with respect to

navigation and hydrographic characteristicsXX. Transit Passage Rights

a. Unimpeded passageb. Continuous and expeditiousc. “Normal Mode” of transit

i. Surface, air, subsurfaced. Shoreline to shorelinee. Non-suspendable

XXI. Transit Passage Duties

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a. Not threaten/use force against the costal stateb. Not engage in marine scientific research/hydrographic surveysc. Comply with COLREGSd. Comply with international pollution control standardse. Laws on other matters besides customs, fiscal, immigration, sanitary law,

safety, pollution may NOT be enforced. In this respect, coastal state jurisdiction over ships in transit passage is narrower than over ships in innocent passage

XXII. International Straitsa. Strait of Gibraltarb. Strait of Hormuz

XXIII. Other straits used for international navigationa. Strait formed by mainland and island

i. “Route of similar convenience” seaward of the islandii. “messina” exception

b. “Dead-end” straitsi. Connect high seas/exclusive economic zone with territorial sea

c. Nonsuspendable innocent passaged. Straits regulated by long-standing international conventions

i. Turkish straitsii. Strait of Magellaniii. Danish Strait

ARCHIPELAGIC WATERS, CONTIGUOUS ZONE, EEZ, CONTINENTAL SHELF, HIGH SEAS (CH. 5-9)I. National Waters: Waters subject to the territorial sovereignty of coastal nations

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a. Include:i. Internal Watersii. Archipelagic watersiii. Territorial Seas

II. International waters: Waters beyond the territorial sovereignty of coastal nationsa. Include:

i. Contiguous Zonesii. EEZiii. High Seas

III. Contiguous Zone (Art 33)a. Law enforcement zone

i. 1/3rd of coastal states have claimedb. Max 24 nm from baselinec. Coastal state may enforce laws regarding i-iv to prevent infringement

within its territory or territorial sea, or punish infringements committed in territorial sea

i. Customsii. Immigrationiii. Fiscaliv. Sanitation

d. High Seas freedoms of navigation and overflight applye. States are not required to maintain contiguous zones, like they are

supposed to maintain territorial seas; unlike the continental shelf the contiguous zone is not automatically ascribed to the state

IV. EEZa. Max 200 nm from baselineb. Rights of Coastal State:

i. Sovereignty over non-living resources, living resources, other economic resources

ii. Jurisdiction over artificial islands and installations (500 meter safety zone around them) (60, 80)

1. Partial removal required 60(3) – ensure safety of navigation

iii. marine scientific research, iv. protection of environment

1. dumping of waste (210(5)), other forms of pollution from vessels (211(5-6)), pollution from sea-bed activities (208, 214)

c. Rights of other States in the EEZi. High seas freedoms of navigation and overflight applyii. Navigation:

1. Limited by due consideration for other states and Arts 88-115

2. Can warships engage in naval maneuvers/weapons practice? They are clearly ‘uses of the sea related to navigation’ but argument over whether they are “internationally lawful” (p. 427-8)

iii. Overflight: 1. State’s right to construct artificial islands & installations

may effectively prevent low flying in the vicinity of these structures

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2. Aircraft are subject to the coastal state’s competence to regulate the dumping of waste

3. Uncertainy about use of EEZ by foreign military aircraft for military exercises (Ch 17)

iv. Laying of Submarine Cables & Pipelines 1. More limited than at high seas b/c state has to give

consent for pipelines/cables on Continental Shelf (79(3))d. No obligation to claim an EEZe. 121(3): Rocks which cannot support human habitation have no EEZ or

continental shelff. In practice EEZ’s have been established by administering powers for

nearly all dependent territoriesi. Resolution III

g. Australia claimed an EEZ off its Antarctic territory in 1994, US protested but nobody else has reacted even thought under 1959 Antarctic Treaty prohibits new territorial claims in the region

h. Ambiguity as to what extent a Coastal state may manage living resources, regulate foreign shipping to avoid conflicts with fishing only guidance is that state’s must have ‘due regard’ to eachother’s rights

i. Art 59 Unattributed Rights: no presumption in favor of the Coastal State or other States, take into account equity, relevant circumstances, interests of the parties and international community as a whole

i. Ex: Underwater listening devices for subs (Ch. 17), recovery of historic wrecks beyond the contiguous zone (Art 303, Ch. 7), buoys for scientific research (Ch. 16)

j. Overall effect of EEZ was more of a psychological gain for developing countries, did not redistribute oil/gas resources b/c they already belonged to the state under the Continental Shelf regime, led to some redistribution of fisheries resources

V. Continental Shelf – rights automatically attach, unlike EEZa. Extends to outer edge of continental marginb. Minimum 200 nmc. Maximum 350 nm OR 100 nm beyond 2500 meter isobath

i. Customary International Lawd. Sovereign rights over resources of the shelf

i. Mineral and non-living resourcesii. Sedentary species

1. Classification of lobster and crabs as sedentary is controversial (critical outside the EEZ)

2. Wrecks don’t count, though Art 303 gives States limited jurisdiction over them out to limits of Contiguous Zone

iii. Developed countries have to pay authority beyond the 200 mile zone

e. No effect on superjacent waters or airspacef. Islands can have their own continental shelf, provided they sustain human

habitation 121(3)North Sea Continental Shelf Case: Denmark, Netherlands were arguing against Germany for the delimitation of boundaries. D&N argue that they should decide based on CIL which is equidistance. Court says no – equidistance is not the approach. Court said you must use “equitable principles”. Those factors include: the general

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configuration of the coasts; readily ascertainable physical and geologic structure, and natural resources; proportionality like length of coast line and general dir. of the coast.

VI. High Seas a. UNCLOS Arts 86-119:

i. Art 86: The provisions of this part apply to all parts of the sea that are not included in the exclusive EEZ, in the territorial sea or in the internal waters of a State or in the archipelagic waters of an archipelagic state. Does not abridge any freedoms enjoyed by all states in the EEZ.

ii. Art 116: Freedom of fishing on the high seas is subject to the rights and duties in Art 63(2) (Straddling Stocks)

Freedoms – Art 87: Freedom of the high seas1. Freedom of navigation2. Freedom of overflight3. Freedom to lay submarine cables and pipelines4. Freedom to construct artificial islands

b. Limitations on Freedom (slavery/piracy/broadcasts)i. Art 99: Prohibition on the slave tradeii. Art 100: Prohibition on Piracyiii. Art 101: Definition of Piracyiv. Art 110: Who stops these acts? All states can use their warships to deal

with these acts. There are specific steps you have to follow.

VII. Navigational Regimes a. National Waters:

i. Internal Waters Consentii. Territorial Seas Innocent Passageiii. Int’l Straits Transit Passageiv. Arch. Waters Innocent/Archipelagic Sealanes Passage

b. International Waters i. Contiguous Zone High Seas Freedomsii. EEZ High Seas Freedomsiii. High Seas High Seas Freedoms

VIII. Archipelagos (Art 46-54)a. Definition: (46) a State constituted wholly by one or more archipelagos

and may include other islands, MAY draw baselines around islandsi. Does not include mainland states with non-coastal archipelagos

ii. Appears to embrace JP, NZ, UKb. Archipelagic Baselines: (47)

i. Ratio of land to water within the lines is not more than 1:1 and not less than 1:9

ii. Max 100 miles except that up to 3% can be 100-125 nmiii. Main islands (unclear what this means) must be includediv. Cannot depart from general configuration of the archipelagov. Shall not be drawn to low-tide elevations unless permanent stuff

like lighthouses have been built on themvi. Can’t cut off territorial sea of another State from high seas or its

EEZ

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vii. Due publicity to charts of baselinesc. Archipelagic Waters

i. Not internal waters or territorial seaii. Right of Innocent Passage may be suspended temporarily for

security reasons after due notice (52(1))iii. Sovereignty over waters, air space, sea bed, subsoil, & resourcesiv. Must respects rights enjoyed by third States from existing

agreementsv. Must Respect traditional fishing rights and other legit activities of

neighboring States in certain areas falling within archipelagic waters

vi. Respect existing submarine cables (not pipelines)vii. ***Provisions on pollution give Coastal State enforcement in

territorial sea and straits (220, 223) but it does not appear to apply to archipelagic waters (p. 127)

1. Seems like less jurisdiction over arch waters than a non-arch state in its territorial sea or than the arch state itself has in its own territorial sea lying BEYOND arch waters

d. Archipelagic Sea Lanes Passage (similar to Transit Passage)i. All normal passage routes used for international navigation or

overflightii. Ex: Philippines effectively reserved arch waters when it ratifiediii. May designate sea lanes

1. 50 nm corridor2. 10% rule

iv. **53(12): If Arch State does NOT designate routes, then arch sea lane passage can be exercised through routes normally used for international navigation (ambig)

1. If State does not designate sea lanes, submarines will be able to transit arch waters submerged; normally subs in innocent passage have to navigate on the surface

2. Also gives aircraft the right to fly over archipelagos (though unclear it if applies to aircraft)

v. Rights:1. Unimpeded Passage2. Continuous and Expeditious3. “Normal mode” of transportation

i. Surface, air, subsurface4. Nonsuspendable

a. **does not address war time, theoretically you could argue this is a peace-time requirement

vi. Duties:1. Not threaten/use force against the coastal state2. Not engage in marine scientific research/hydrographic surveys3. Comply with COLREGS4. Comply with international pollution control standards

IX. Traffic Separation Schemes a. Designated by coastal states

i. Safety of navigationb. Application to

i. Merchant Vessels

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ii. Warships/state vesselsX. Mandatory Ship Reporting Systems

a. Enacted under SOLASb. Requires ships to report presencec. Current reporting systems

i. Off Torres Strait and Great Barrier Reef (Australia)ii. Off Ushant (France)iii. Strait of Gibraltar (Spain)iv. Great Belt Traffic Area (Denmark)v. Strait of Malacca and Singaporevi. Off Finistere traffic separation scheme (Spain)vii. Strait of Bonafacio (Italy)viii. Northern Right Whale (US)

d. Sovereign immune vessels not required to complye. U.S. Sovereign immune vessels will not comply unless co/master

determines “essential for safety of navigation”

JURISDICTION OVER NON-LIVING RESOURCES (CH. 12)I. Non-Living Resources:

a. Oil and gas Depositsb. Mineralsc. Precious Metals

II. UNCLOS Framework a. Part XI “The Area”: provides for an International Sea Bed Authority with powers

to control access to sea-bed mine sites and the recovery of minerals from them. Broadly speaking, the rate recovery was to be limited

i. Idea was that Miners would seek approval for operations and would pick two equal sites, one would be mined by the Enterprise or in association with developing states

ii. Authority would have had the power to compel the transfer on fair commercial terms of mining technology

iii. Authority has 3 principal organs1. The Assembly – all states are members, one vote each,

elects members of the Council, decides budget, mining rules, distribution of economic benefits of mining, decision-making by consensus

2. The Council – implements Convention regime, approves work plans of miners, recommends eco. assistance to developing countries

3. The Secretariat – administration4. Legal & Technical Commission – accepts mining

applications, manages day-to-day stuff5. The Finance Committee – takes account of equitable

geographic distributionb. Key Principles

i. Art 1(1): “Area” means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction

1. (2): “Authority” means the international seabed authority

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2. (3): “activities in the area” means all activities exploring resources in the Area

ii. Art 133 Terms: Defines resources as all solid liquid or gaseous mineral resources at the area or beneath the sea bed

iii. Art 134: regime governs all activities connected with exploration and exploitation of mineral resources in the Area

iv. Art 135 Legal Status of water/air space: Doesn’t affect ability to navigate or fly over

v. Art 136 Common Heritage1. One of the reasons Reagan pulled out of the whole treaty2. Seemed like communist rhetoric3. Technology transfer, share money, set up UN entity

vi. Art 137 Resources1. No state can claim or exercise sovereignty over the area of its resources.

You can’t appropriate themvii. Art 140 Benefit of Mankind

1. The authority shall provide for the equitable sharing of benefits derived from activities

viii. Art 141: Use of Area for Solely Peaceful Purposesix. Art 143 Marine Scientific Research: Peaceful Purposes, Authority can

conduct research, States Parties may carry out research and must share results

x. Art 144 Transfer of Technologyxi. Art 145 Protection of Marine Environmentxii. Art 147: the superjacent waters and air space remain high seas, reasonable

regard must be had to other legitimate uses of those waters and of the Area itself

xiii. Art 149 Archeological & Historical Objects: preserved for benefit of Mankind, particular regard paid to the preferential rights of State of origin, or the state of cultural origin, or the state of historical/archeological origin

xiv. Art 155(4): Review conference in 15 yearsxv. Art 170 The Enterprise

1. Prospecting and mining the Area, transportation, processing & marketing of minerals recovered from it, not functioning yet

xvi. Section 5 Settlement of Disputes p. 98III. National Jurisdiction

a. Art 2 – Territorial Sea i. Sovereignty over the entire territorial seaii. Art 2(2) extends the sovereignty over the seabed and subsoil

b. Art 49—Archipelagic Waters i. Seabed and subsoilii. Regardless of depth or distance from the coast

c. Art 56 – EEZ i. Sovereign rights over natural resourcesii. Jurisdiction over artificial islands, etciii. Due regardiv. Part VIv. Marine Scientific Research

d. Art 76 – Continental Shelf i. Sovereign rights over resourcesii. Rights are exclusive

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iii. Note also articles 79, 81, 82, 85IV. International Jurisdiction

a. Res Communis: resources can be used by any State but not State could gain an exclusive title to any part of the area

b. Res Nullius: title could have been gained to areas of the sea bed by their occupation through use, so that mining States would have become owners of parcels of the ocean floor and not simply of the resources recovered from them

V. US Objections to Part XIa. No guaranteed seat on the Councilb. Voting rules (Art 159)c. Amendment provisionsd. Revenue sharinge. Mandatory technology transferf. The enterprise versus Commercialg. Production limitationsh. Payments

VI. Implementing Agreement “Fixes”a. Guaranteed US Seat on the Council

i. November 98 Deadlineb. Guaranteed US Seat on Finance Committee

i. November 98 Deadlinec. Eliminated ‘mandatory’ technology transferd. Access first-come, first-servede. US veto over revenue distribution

INTERNATIONAL LAW OF FISHERIES (CH. 14)I. Harmful Fishing Practices

a. Overuse or overfishing, Non-selectivity, Destructive Fishing, Destructive Methods (Poison, Explosives, Muroami: pound/destroy coral to scare fish out)

II. Issues in Fishery Management a. Tragedy of the Commonsb. Conservationc. Accessd. Management Authoritye. Full utilizationf. Unitary Managementg. Balance with Navigational Freedoms

III. Development of Fisheries Law a. Migratory Nature of Fish Stocks jurisdictional implicationsb. Inter-relation of Species one stock feeds on another, or they inhabit the

same areac. Fisheries as a common property natural resource

i. Tendency towards over-fishing (no incentive for a single fisherman to limit his fishing)

ii. Tendency toward over-employment in fishingiii. Likelihood of competition and conflictiv. Necessity for international regulation

d. Economic Concepts:

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i. Maximum Sustainable Yield: rate of increase is greatest when stock has been reduced to this level

ii. Maximum Economic Yield: limit fishermen so that the catch for each vessel will be decent

e. Regulatory Measures:i. Total Allowable Catch : how many fish maybe caught from a particular stock

over a period of time, quotas allocated to certain states or vesselsii. Gear Regulations : minimum mesh sizes, prevent catching of immature fishiii. Area Closure/Seasonal Measures: protect spawning and immature fishiv. By-catch levels : prevent fish from another species from being caught v. Limiting number of fishing vessels vi. Limiting size of fishing vessels vii. Limiting number of fishing days viii. Drawbacks of biological methods is that they require reliable data, militate

against economic efficiency, difficult/costly to enforce. The economic measures often have social and safety side effects

f. Jurisdictional Challengesi. Coastal Statesii. Flag Statesiii. International Fisheries Commissions

g. ICJ International Fisheries Case (1974)i. UK v. Iceland, Germany v. Icelandii. ICJ determined validity of Iceland’s extension of its fishing limits from 12 to

50 milesiii. Iceland tries to argue that they don’t have consideration from Britain

anymore because everybody accepts a zone of 12 nautical miles – Ct says that economic change does NOT fall under 62

iv. Court held that under customary international law a coastal state particularly dependent on fishing for its economic livelihood in certain circumstances enjoy preferential rights of access to the high-seas fishery resources in the waters adjacent to its coasts

v. Has been criticized because of lack of evidence, in practice no State since has relied on it

h. ITLOS Southern Bluefin Tuna Cases (1999)i. AU, NZ and JP had agreed on a TAC quota for the tuna, in 1998 Japan

unilaterally increased its catch by 2,000 tons and claimed it was for researchii. AU and NZ: Japan’s research will have minimal results and cause

irreversible damage to the Tuna stock. Violates Arts 64, 116-119, 300iii. JP: Their projected catch rate would not slow the Tuna’s high rate recoveryiv. ITLOS: ordered an interim order 1999 that concluded that Japan had

breached their UNCLOS agreement under 64, 116-119 by failing to adopt necessary conservation methods. Agreed with AU that scientific uncertainties demonstrated that action must be taken to preserve the tuna stock. Applied precautionary principle: parties prevent any further aggravation or extension of the dispute, the parties keep catch levels to those last agreed and as set by the CCSBT for 1999, the parties cease any experimental fishing programs, the parties resume negotiations, and finally that the parties form agreements with any other states fishing for Southern Bluefin Tuna

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1. Final decision 2000 revoked ban on Japanese fishing program and orders the parties to cease from action that would aggravate relations between the states. JP agreed to further mediation.

i. ITLOS Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) (2009)

i. Chile claims that the EU fails to cooperate with the coastal state to ensure the conservation of the highly migratory species, in violation UNCLOS. The EU claims that Chilean denial of port access violates substantive provisions of the General Agreement on Tariffs and Trade (GATT 1994).

ii. Terms of settlement include: more structure framework of fisheries cooperation to replace 2001 bilateral provisional arrangement into a commitment to conserve the swordfish stocks in the South Eastern Pacific

iii. Conduct fisheries with objective of sustainabilityiv. Freezing fishing effort by both parties at 2008 level or at max historical

peakv. Establish Bilateral and Technical Committee to exchange data, scientific

advicevi. Multilateral consultation should include all relevant participantsvii. EU vessels in accordance with objectives will be granted access to

Chilean ports for landings, transshipments, replenishing or repairs IV. UNCLOS Framework

a. Territorial Sea: states are sovereign, innocent passage precludes fishingb. Archipelagic Waters (Art 51): States will respect traditional fishing agreementsc. EEZ (Customary Law to claim a 200 mile EEZ or EFZ)

i. Art 56(1): the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the fish stocks of the zone

ii. Art 61: Conservation of living resources1. 61(3): Duties of conservation/management, ensure fish are not

endangered by over-exploitation, maintain stocks which can produce the maximum sustainable yield, as qualified by environmental and economic factors

a. taking into account fishing patterns, the interdependence of stocks and any generally recommend sub-region, global standards

2. 61(1): Coastal state is to establish the TAC for each fish stock within its EEZ

iii. Art 62: Utilization of Living Resources1. 62(1): The coastal State is required to promote the objective of optimum

utilization of the living resources of its EEZ2. 62(2): where the fisherman of the coastal state are not capable of taking

the whole of the allowable catch, the coastal state is to permit the fishermen of other states to fish for the rest

3. 62(3): Coastal State has very broad discretion to determine TAC, the surplus, and who gets ita. Exempt from compulsory settlement of disputesb. Can pick fishermen from whatever state they want (look at all relevant

factors, including economic dislocation & requirements of developing states)

c. Uncertain if duties of 61 & 62 are CIL

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d. Some states make access contingent on financial compensation or economic cooperation

4. 62(4): Coastal state can prescribe conditions requiring licenses, conservation measures, carry out research programmes, to land part or all of their catches in the coastal state and to train coastal state personnel

iv. Art 63(1): Shared Stocks: stocks that migrate between the two EEZs of two or more states1. States concerned should seek to agree upon measures necessary to co-

ordinate and ensure the conservation and development of such stocks2. Nothing further is said about the management objectives or allocation of

the catch among the interested states3. Duty to negotiate, no obligation to reach an agreement result may be

mismanagement of a share stock and inequity in allocation of benefits4. At least 20 agreements in force, States have been able to agree to a

certain extent5. Agreements are (1) periodic arrangement under a pre-existing framework

treaty (2) bilateral commission (3) regional fisheries organization (4) ad hoc

6. Art 63(2) Straddling Stocks: stocks of fish that migrate between or occur in both the EEZ of one or more states and the high seasa. How to manage? How to be allocated?b. Coastal States & fishing States are to “agree upon the measures

necessary for the conservation of these stocks” does not provide any substantive guidance

v. Art 64 Highly Migratory Species: Coastal State’s normal rights and duties of fishery management in its EEZ are supplemented by an obligation to co-operate with other States fishing for highly migratory species in the region either directly or through appropriate international organizations

1. 1995 Straddling Stocks Agreement applies to highly migratory species

2. Includes tuna, marlins, swordfish & oceanic sharks3. Annex 1: Highly Migratory Species (list on p. 145)

vi. Art 65 Marine Mammals: within an EEZ a coastal state is entitled to limit or prohibit the exploitation of such a species rather than establishing an allowable catch and promoting optimum utilization

1. Some states, such as AU, UK and USA have prohibited whaling in their 200-mile zones

2. Int’l orgs can also limit or prohibit exploitation of marine mammals both within and beyond the EEZ (65 and 120)

3. Int’l Whaling Commission put a moratorium on whaling in 1986, Norway resumed commercial whaling in 1993 (objected to by JP, NW, RS, sought to get around it by pretext of scientific research)

vii. Art 66 Anadromous Stocks: species such as salmon, shad and sturgeon which spawn in freshwater but spend most of their life in the sea

1. The State in whose rivers the fish spawn (state of origin) is primarily responsible for their management and shall take appropriate regulatory measures to ensure their conservation

2. Can establish TAC and admit foreign states to EEZ for any surplus but is not obliged to do so

3. TACs must be done after consultations with other interested states

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4. Fishing for Anadromous stocks beyond the 200-mile limit is forbidden except where this would result in ‘economic dislocation’ for a state other than State of origin

5. 66(3)(d): Conservation measures are to be enforced by agreed between State of Origin and other states concerned

6. 66(5): where appropriate, use regional organizationsviii. Art 67 Catadromous Species: species such as eels which spawn at sea but

spend most of their lives in fresh water1. Obligation on coastal states through whose EEZs catadromous

species migrate to cooperate over management (including harvesting) of these species with the State in whose waters the species spend the greater part of their life cycle

2. Latter state has overall management responsibility3. Fishing for these species on the high seas is prohibited4. Few problems

ix. Art 68 Sedentary Species: part of the natural resources of a coastal state’s continental shelf, EEZ provisions do not apply to sedentary species

x. Art 69: Land-locked States xi. Art 70: Geographically disadvantaged States

1. Give a guaranteed access for such states to a portion of any surplus.xii. Art 71 Non-applicability of 69 and 70: do not apply in the case of a costal

state whose economy is overwhelmingly dependent on the exploitation of the living resources in its EEZ

xiii. Art 72 Restrictions on transfer of rights: can’t be transferred by lease, license, joint ventures unless otherwise agreed

xiv. Art 73: Enforcement: 1. (1) Coastal State may enforce by measures including boarding, inspection,

arrest & judicial proceedings2. (2)(4): When a foreign vessel has been arrested, its flag State must be

notified immediately and the vessel and crew promptly released upon the posting of reasonable bond or other security

3. (3): Where violations are established, penalties may not include imprisonment in the absence of agreements to the contrary (32 states do this anyway)

4. Hot pursuit is possible (see Ch 11)5. Enforcement is a challenge in terms of resources and technology

d. Continental Shelfi. Art 77(4): natural resources in this part refer to mineral and other non-living

resources of the seabed and subsoil & sedentary species (at the harvestable stage, immobile or unable to move except in constant physical contact with the seabed or the subsoil)

e. High Seasi. Art 87: Freedom of the High Seas fishing open to all states

ii. Art 116: Right to fish on the High Seas subject to restrictions arising out of the rules for straddling stocks and certain species (63(2))

iii. Art 117-120 Conservation and Cooperation: duty on interested States to co-operate in the management and conservation of high-seas fishery resources, making use of international fishery commissions

1. 119(1)(a): establish MSY as qualified by env. & eco. Factors, developing states, interdependence of stocks, fishing patterns

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2. 119(1)(b): adopt conservation measures take into consideration effect on species associated with harvested species to maintain population of such associated species

iv. Art 297(3) Dispute Resolution: sovereign rights to living resources in the EEZ, including determining TAC, harvesting, allocation of surpluses, conservation/management laws/regulations are not covered1. Can go to conciliation if: (1) coastal state failed to comply with

obligations to ensure EEZ species not endangered, (2) state has arbitrarily refused to determine TAC, (3) arbitrarily refused to allocate

V. Straddling Fish Stocks Agreement a. Precautionary Approachb. Applicabilityc. Duty to Cooperated. “Donut hole” provisions: enclave of high seas in the Bering Sea surrounded

by the EEZ’s of Russia and the USA. Distant-water fishing states (CH, KO, JP, PL) began to fish in the Donut hole since they were excluded from the EEZs. Over-fishing over Pollock resulted and illegal entry into EEZs. Signed an agreement in 1994 to restore Pollock at MSY.

e. Collection and Sharing of DataVI. Bilateral Issues with Canada

a. 1999 Pacific Salmon Agreementb. 1981 US – Canada Albacore Treaty

VII. Bilateral Issues with Russia a. North Pacific Ocean and Bering Seab. 1990 maritime Boundary Treatyc. Russian fishery management overhaul

VIII. US Fishery Conservation and Management Act (1976) a. Prevent over fishing, rebuild stocks, fully utilize fisheries, promote US fishing

industry, preserve essential habitat

PROTECTION OF THE MARINE ENVIRONMENT (CH. 15)I. Forms of Pollution: Toxins, bio-stimulants, oil, radioactive isotopes,

sediments, plastics & other debris, pathogens, thermal? Noise? Alien species?

II. Sources of Marine Contaminants:a. Vessels 12% (primarily oil, alien species)b. Atmosphere 33% (airborne particles)c. Dumping 10% (sewage, sludge, nuclear – deliberate as compared to

vessels)d. Land-based 44% (run offs from rivers, streams, fertilizers)e. Offshore 1%

III. Pre UNCLOS: Geneva Conventions/HS Convention/Coastal State rightsIV. Part XII: Protection and Preservation of the Marine Environment

a. Developing states versus developed statesb. Freedom of navigation interests versus those States advocating greater

restrictionsc. Sections 5, 6 and 7 are keyd. LOS Convention is a “framework” agreemente. Other international agreements are important:

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i. MARPOL 73/78ii. London [Dumping] Convention/London Convention Protocoliii. CLC and Fund Convention

V. ITLOS The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures (2003)a. Facts: Authorization of mixed oxide fuel plant in UK. Ireland contested the

project to protect the Irish Sea. Sued under art 290 of UNCLOS, ad hoc arbitral tribunal under Annex VII.

b. Ireland wanted a provision measure to say, you cant’ start this plant or ship any radioactive materials until we get this resolved through pending arbitration Court did NOT grant

i. Ireland invokes Precautionary Principle, burden is on UK to show no harm would come from discharges into Irish Sea

ii. But it’s ambiguous, UK says there’s no scientific evidence we’re going to pollute

iii. Rio Declaration Formula: Lack of full scientific certainty is not a defense

c. Holding: Duty to Cooperate – fundamental concept in regime of pollution prevention

i. Order: consultations to exchange information on possible consequences, to monitor risks of effects, and to devise measures, as appropriate, to prevent pollution of the marine environment

VI. Definitions a. Art. 1(1)(4): "pollution of the marine environment" means the

introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities

b. Art. 1(1)(5): Dumping means any deliberate disposal of wastes or other matter from vessels or OF vessels. Does not include incidental disposal from normal operation of vessels

VII. Territorial Sea a. Art. 19(2)(h): Passage is NOT innocent if there is any act of “willful and

serious pollution”b. Art. 21(1)(f): Coastal State can adopt laws relating to innocent passage

in TS for preservation of environment of the coastal statei. 21(2): Coastal State may prescribe regulations for foreign vessels

in innocent passage, as long as they do not apply to designii. 21(3), 24, 211(4): must be duly publicized, non-discriminatory,

must not hamper innocent passagec. Art. 23: foreign nuclear-power ships or ships carrying nuclear or other

inherently dangerous substances shall carry documents & observe precautionary measures when in TS

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d. Art. 25: Coastal State may take necessary steps in TS to prevent non-innocent passage

e. Art. 27 Criminal Jurisdiction on a Foreign Ship: exercise juris on board a ship in TS to arrest or conduct investigation in connection with any crime committed on board the ship during its passage, except if the consequences of the crime extend to the coastal state, disturbs peace/good order, its been requested

VIII. International Straits a. Art. 39(2)(b): Ships in transit passage shall comply with generally

accepted int’l regs, for reduction/prevention/control of pollution from shipsb. Art. 42(1)(b): Pollution regimes may only be adopted if they give effect to

applicable int’l regs. regarding the discharge of oil, oily wastes, and other noxious substances in the strait.

c. 42(2),(3): Regs must be non-discriminatory, must not hamper transit passage, and must be duly publicized

IX. Archipelagic States a. Art. 52: innocent passage through archipelagic watersb. Art. 54: Arts 39, 40, 42, 44 apply mutatis mutandis to archipelagic sea

lanes passage

X. Exclusive Economic Zone a. Art. 56(1)(b)(iii): in the EEZ, the coastal state has jurisdiction over

protection and preservation of the marine environmentb. Art. 56(2): Coastal State will have due regard for the rights/duties of other

statesc. Art. 58(3): Other states in the EEZ will have due regard for Coastal Stated. Theoretical: whether a flag state can arrest one of its own vessels in the

EEZ of another state? Seems like it can. 58(2), art 92 applies in the EEZ to the extent that its not incompatible with coastal state’s rights

XI. High Seas a. Art. 94(4)(c) Duties of the Flag State: master officers & crew observe

int’l regulations for safety at sea and preventions of collisions and prevention of marine pollution

XII. The Area a. Art. 145: Authority shall take necessary measures SHALL be taken to

protect environment from harmful effects, i. Authority shall adopt rules particularly related to drilling, dredging,

excavation, disposal of waste, construction of installations, pipelines, etc

XIII. Protection & Preservation of the Marine Environment a. Art. 192: States have a general obligation to protectb. Art 193: States have right to exploit their natural resources

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c. Art. 194(1): states shall take all measures necessary to prevent pollution, harmonize, in accordance with their capabilities

d. Art. 194(3): Measures shall include (long list, p.101 of convention)e. Art. 194(5): Measures include those necessary to protect rare or fragile

ecosystems and habitat of endangered speciesf. Art. 195: Duty not to transfer damage or hazards or transform one type of

pollution into anotherg. Art. 196: Prevent pollution from use of technologies or

accidental/intentional introduction of new species to marine env.h. Art. 198: States shall immediately notify other States likely to be affected

by marine environment in damage or in imminent dangeri. Arts. 202 and 203: Scientific/technical assistance to developing states,

preferential treatment for developing statesj. Art. 206: Assessment of potential effects of activities that may cause

substantial pollutionk. Art. 207: pollution from land-based sources states will adopt laws to

prevent pollution, take into account regional features, developing states’ economic capacity, need for economic development

l. Art 208(4): States should harmonize at the regional levelm. Art. 210: Pollution by Dumping

i. Dumping within TS and EEZ and CntShlf need permission of Staten. Art. 211(2): Obligation on flag states to adopt pollution regulations for

their vessels which ‘at least have the same effect as that of generally accepted int’l rules (not defined in scope, presumably includes Annex 1 & 2 of MARPOL) est. by int’l org.

i. 211(3): Port states must publicize requirements for entry into their ports and notify IMO

ii. 211(7): they include inter alia those relating to notification of accidents likely to cause marine pollution

iii. 211(5): Coastal State may adopted pollution legislation for its EEZ which conforms to generally accepted int’l rules establish through int’l org or diplomatic conference

iv. 211(6): pollution regs, state needs to consult with IMO and get approval, give 15 months notice

o. Art. 213: Enforcement with respect to pollution from land-based sources in accordance with 207

p. Art 216 Enforcement with respect to Pollution by Dumping:i. Art. 216(1)(a): enforced by coastal state in TS/EEZ/ContlShelfii. Art. 216(1)(b): by flag state for its vesselsiii. Art. 216(1)(c): by any state loading wastes within its territory or off-

shore terminals

XIV. Article 217 Flag State Enforcement a. Primary means of enforcement under the Conventionb. Art. 217(1): Flag states MUST enforce violations of pollution laws

applying to their shipsc. Art. 217(6): states will investigate any violation at written request of

another state, institute proceedings if there’s enough evidence

XV. Article 218 Port State Enforcement

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a. Art. 218(1): Port state may take legal proceedings against a vessel in one of its ports that is alleged to have discharged polluting matter outside the TS/EEZ

b. Art. 218(2): Can’t do it if the violation happened in the IW/EEZ/TS of another state, unless that state or flag state requests or its likely to affect the port state’s EEZ/TS/IW

c. Art 219: can prevent a vessel in port from sailing if its not seaworthy & threatens the marine environment

d. Art 220(1): Port State may arrest in one of its ports and prosecute a vessel which is alleged to have violated that state’s pollution laws or applicable int’l rules in its EEZ/TS

XVI. Article 220 Coastal State Enforcement a. Art. 220(2): Where a foreign vessel is suspected of violation during its

passage through the territorial sea the coastal state’s anti-pollution legislation, the coastal state may inspect the vessel and where the evidence so warrants, institute legal proceedings

b. Art. 220(3): clear grounds to believe ship in the EEZ/TS & committed violation in the EEZ, state may require vessel to give info on its identity, port of registry, last & next port, any other relevant info to est. if a violation occurred (*what does clear grounds mean?)

c. Art. 220(5): ship in EEZ/TS violated in EEZ resulting in a “substantial discharge causing or threatening significant pollution of marine env” then State can inspect if vessel refuses to give info or gives wrong info

d. Art. 220(6): ship in EEZ/TS violated in EEZ, resulting in ‘discharge causing major damage or threat of major damage to coastline etc” state may institute proceedings, including detention of the vessel

e. Art. 220(7): If coastal state has established other procedures through int’l org or agreement, allow vessel to proceed

f. Art 221: Measures to avoid pollution from Maritime Casualties: Collision of vessels resulting in material damage, states can enforce measures beyond TS proportionate to situation to protect coastlines, fishing from pollution

g. Art. 222: Enforcement with respect to air pollution: states shall enforce within air space under their sovereignty, vessels, aircraft, through int’l standards/rules to prevent air pollution

h. Art 233: If the alleged violation of the coastal state’s legislation was committed during transit passage through a strait, can only arrest if the violation causes or threatens “major damage to the marine environment of the strait’

XVII. Safeguards a. Art. 226 (1): Investigation of foreign vessels: states shall not delay a

foreign vessel longer than essential to investigate; limited to an examination of documents. Physical inspection can only happen when there are clear grounds that the equipment does not correspond to docs, docs are not sufficient to confirm a violation, or docs are not valid.

b. Art. 230 Monetary Penalties: may only be imposed for pollution violations beyond the TS

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c. Art. 234: ice-covered areas within the EEZ, the coastal state may adopt non-discriminatory pollution regs, no requirement that they conform to int’l rules and no particular procedures, NO LIMITATIONS!

d. Art 235: States should develop special liability regimes for marine pollution (only 2 attempts so far)

e. Art. 236 Sovereign Immunity: marine environment provisions do not apply to warships/aircraft on government non-commercial service

f. Art. 237: provisions are without prejudice to obligations assumed under other conventions, carry out in a manner consistent with the general principles of UNCLOS

XVIII. London [Dumping] Convention of 1972 a. LC Coverage : dumping as the deliberate disposal of waste from ships

and aircraft, but excludes disposal of waste incidental to the normal operation of ships and aircraft

b. Imprecise about enforcement, general rules of customary lawc. Dumping regulated by material (The Black List, The Grey List, All other

wastes) p. 364d. Art. III establishes general guidance for site selectione. 1996 Protocol to LC

i. New Annex I ii. Radioactive materialsiii. Disposal in seabed and subsoiliv. Disposal of offshore structuresv. Entered into force in 2006

XIX. MARPOL 73/78a. As of 2010, 150 countries, 98% of world’s shipping are partiesb. Six Annexes (first 2 are obligatory for all parties)

i. Oil (1983) – binding on 94% of the fleet by 19981. Tankers over 150 tons must operate the load-on-top

system under which limited discharges of oily water may be made while the tanker is en route

2. Tankers must be fitted with segregated ballast tanks and equipment for crude oil washing

ii. Liquid Noxious Substances (1987)1. Must be discharged in a reception facility unless

adequately dilutediii. Harmful Substances (1987)

1. Regulations concerning packaging, marking, labeling, documentation, stowage and quantity limits

iv. Sewage (NIF)1. Prohibits discharge of sewage within 4 miles of land unless

ship has it approved. 4-12 miles from land sewage must be comminuted and disinfected before discharge

v. Garbage (1988)1. Minimum distances from land for the disposal of all kinds of

garbage and some areas prohibit their disposal entirelyvi. Air Pollution (NIF)

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1. Limits sulphur and nitrogen oxide emissions from ship exhausts, prohibits shipboard incineration of certain substances and regulates the onboard use of ozone-depleting substances

vii. Proposed 7th Annex would deal with problem of introduction of unwanted aquatic organisms in ballast water

viii. Overall problem: lack of adequate reception facilities in ports of many parties

XX. U.S. Statutes a. Marine protection, Research and Sanctuaries Act (MPRSA)

i. Prohibits the dumping of material into the ocean that would unreasonably degrade or endanger human health or the marine environment

ii. “Oceans Dumping Act” is part of MPRSA, covers: 1. materials transported to sea for disposal2. ocean incineration of wastes3. disposal of dredged spoils (overlaps with CWA section

404)4. all materials transported from U.S. to “ocean waters”

(waters beyond the baseline)5. transported by U.S. vessels to any ocean location6. transported by foreign vessels to U.S. TS

iii. Penalties1. Civil ($50K/$125K); criminal for knowing

iv. ODA Exclusions:1. ship generated wastes2. sewage form land outfalls

v. ODA prohibitions:1. black list substances, medical wastes, NBC agents2. sewage sludge and industrial wastes

b. Oil Pollution Act (OPA 90)i. Mandates extensive planning for oil spills from tank vessels and

onshore and offshore facilities. Establishes comprehensive elements of damage for oil spills and imposes strict liability on RPs. Inapplicable to public vessels.

ii. Section 4115 of the act requires that tankers operating in U.S. waters must have double hulls. Tankers must comply with this double-hull requirement within a 25-year phase-in period.

iii. However, unclear how close this is to spirit of UNCLOS discourages unilateral design of ships

c. Act to Prevent Pollution from Ships ( APPS)i. Implements MARPOL 73/78ii. Includes operational oily wastes, garbage, food, plastic and vsl

sewage

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iii. Calls for port reception facilitiesiv. Foreign vsls subject within MARPOL Annex I/II out to 3NM, Annex

V out to 200 NMv. There are civil and criminal penaltiesvi. Applies Annex V to SI vessels

XXI. In the future, int’l community should:a. Bring conventions into force, increase ratifications on all conventionsb. Ensure various regional commissions and meetings function effectivelyc. Improve implementation of existing rules d. Increased monitoring of effect of existing rules on marine pollution

XXII. Current Initiatives for Protection of the Marine Environment a. IMO Marine Environment Protection Committee

i. Agenda for Fall 2010 meeting:1. Harmful aquatic organisms in ballast water2. Recycling of ships3. Prevention of air pollution from ships4. Reduction of greenhouse gas emissions from ships5. Consideration and adoption of amendments to mandatory

instruments6. Interpretations of, and amendments to, MARPOL and

related instruments7. Formal safety assessments8. Implementation of the OPRC Convention and the OPRC-

HNS Protocol and relevant conference resolutions9. Identification and protection of Special Areas and

Particularly Sensitive Sea Areas 10. Anti-fouling systems for ships

b. International Convention on the Control of Harmful Anti-fouling Systems on Ships

i. Adopted 5 October 20011. Key Dates:2. 1 Jan 2003: No new applications of organotins3. 1 Jan 2008: No organotins on hull

c. Regulation 13G and 13Hi. Annex I of MARPOL 73/78ii. Single-hull Oil Tanker phase-outiii. Amendments adopted December 2003iv. Took effect 5 April 2005

d. International Convention for the Control and Management of Ships Ballast Water and Sediments

i. Adopted February 20041. Intended to prevent effects of the spread of harmful

aquatic organisms carried by ships' ballast water. 2. Will require all ships to implement a Ballast Water and

Sediments Management Plan. e. Particularly Sensitive Sea Areas

i. Designated by IMO (ex: great barrier reef, Florida keys, Galapagos)

ii. Protected through

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1. Ship Routing Measures 2. Discharge and Equipment Requirements3. Vessel Traffic Services

iii. MARPOL Special area is different: you can’t discharge oilf. Shipbreaking:

i. Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships May 2009

1. 15 states need to sign, represent 40% of world’s tonnage2. Ship disposal, break up ships to recycle for scraps3. Ships sent for shipbreaking must have inventory, list of

hazardous materials, initial survey to verify inventoryii. Older ships contain many substances that are now banned:

Asbestos, hydrocarbons, heavy metalsiii. Relationship to Regulations 13 G/13H

g. MARPOL Annex VIi. Entered into force May 2005ii. Sets limits on certain emissionsiii. July 2005 amendmentsiv. North Sea Sox Emissions Control Areav. Review of Annex VI and Nox Technical Code

h. MARPOL Annex IIi. Revised Annex II regulations adopted October 2004ii. 4 Category system for noxious and liquid substances

MARINE SCIENTIFIC RESEARCH (CH. 16)I. What is Marine Scientific Research?

a. Marine Scientific Research is not definedb. Purposec. Includes:

i. Oceanography, Marine biology, Fisheries research, Scientific ocean drilling and coring, Geological/geophysical scientific surveying

II. Development a. International law prior to UNCLOS

i. 1958 Territorial Sea Convention – need permission from coastal state

ii. 1958 High Seas Convention – freedom to research not expressly mentioned in article

iii. 1958 Continental Shelf Convention – ‘pure’ and ‘applied’ research required consent of coastal state but they should ‘normally’ consent for the former if requirements complied with

iv. Customary International Law – limitations on marine research in the EEZ

v. UNCLOS negotiations 1. U.S. concerns

a. Blue water oceanographyb. Denialsc. Repliesd. Information controls

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2. Coastal State interestsa. Jurisdiction b. Resources c. Environmentd. Security

III. Competing Interests a. Freedom of scientific research : controls are burdensome, research

benefits all mankind and unity of ocean demands that its study be unrestricted

b. Sovereignty over resources : developing countries wanted control in EEZ and were afraid of research vessels being used for espionage

c. Tension reflected in compromises made in UNCLOSi. Articles 19(2)(j) Innocent Passage: not innocent anymore if you

carry out research or survey activitiesii. Art 40 Transit Passage: No research/survey without consent of

bordering statesiii. Art 54: Art 40 Applies to archipelagic lanes passageiv. 56(1)(b)(ii): Coastal state has rights over research in EEZv. Art 245 Research in TS: Need consent from Coastal Statevi. Art 246(1) Research in EEZ/Cntshlf: need consent from coastal

statevii. Article 87(1)(f): Freedom of scientific research, subject to Parts

VI and XIII

IV. UNCLOS Framework a. Article 246: EEZ and continental shelf

i. (2) Consent of coastal State required1. Unclear if CS consent is required where research is in the

water column past 200 miles over the continental shelfii. (3) Consent normally granted, CS will not delay unreasonablyiii. (4) ‘Normal Circumstances’ unless hostility b/w Statesiv. (5) Consent may be withheld if the research is for

exploration/exploitation of natural resources or inaccurate info is provided

v. Not subject to compulsory third-party settlementb. Same basic approach as the 1958 Geneva Conventionc. Article 247: If the State is a member of an IO and they do not respond for

4 months, consent is impliedd. Article 248: Duty of researching State or IO

i. Nature and objectiveii. Methods and means iii. Geographical areas of project iv. Arrival/departure datesv. Sponsoring institution, participantsvi. Coastal State participation

e. Article 249: Researching State or IO obligationsi. Let Coastal State participate if it wantsii. Provide CS with reports, provide access to data/samples,

assessment of dataiii. Make results internationally availableiv. Inform CS of changes in research program

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v. Remove all installations/equipment when you’re donef. Article 252: Implied consent 6 months after info provided to CSg. Art. 253 Suspension

i. If research activities are not being conducted in accordance with the information upon which consent was based

ii. If the researching State or IO fails to comply with its duties under LOS (Art. 249)

h. Article 253: Cessationi. Noncompliance ii. Failure to correct

i. Art 258: research installations are subject to the same rulesi. Coastal State has jurisdiction over themii. Safety Zones up to 500 meters around them (260)iii. Can’t be an obstacle to int’l shipping routes (261)iv. Identification marks, warning signals for safety (262)

j. Art 249(2): CS can refuse deployment of ODAS, buoysi. No state has enforcement juris over the object in EEZ/ContlShelf,

recourse to Art 59

V. Hydrographic And Military Surveya. Hydrographic surveys include:

i. Determination of 1. Depth of water, Configuration of bottom, Directions/force of

currents, heights and tides, Hazards to navigationii. For the production of nautical charts and similar products to

support safety of navigation.b. “Military survey” defined not universally accepted that military survey

is different from marine research, intentional ambiguityi. Art 19(j)(2): Disjunctive: research OR survey activities (US says

they are two different thingsii. Art 21(1)(g): References marine scientific research AND survey

1. Intent at that treaty wanted them separate (Art 40, 54, 213)c. Military survey data includes:

1. Oceanographic, Marine geological, Geophysical, Chemical, Biological, Acoustic

ii. Distinguish1. Research and Marine Scientific Research2. Hydrographic surveys and survey activities

INTERNATIONAL ORGANIZATIONS AND OCEANS MANAGEMENT (CH. 13)

I. Current Issues a. Trends:

i. Decreasing:1. Standardization of national regulations on technical

matters2. Adopt international rules and regulations

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ii. Increasing:1. Operational measures 2. Management in the shipping industry 3. Performance of Administrations 4. Technical Co-operation/Capacity building5. Regional mechanisms

II. History Inter-Governmental Maritime Consultative Organization (IMCO) Convention (1948)a. Purpose of IMCO

i. Provide machinery for cooperation ii. Removal of discriminatory action and unnecessary restrictionsiii. Address unfair restrictive practices iv. Address other matters concerning shipping v. Provide for the exchange of informationvi. Pollution control function?

1. 1954 Oil Pollution Conference2. 1975 Amendments 3. Current status

b. IMO and UNCLOSi. IMO is implicitly recognized as the “competent international

organization” for those provisions that concern marine safety (navigation) and marine pollution

ii. IMO Methodologyiii. IMO’S Structure

1. Assembly is all member states2. Council: 32 member States, supervises activities3. Committee Structure

a. Maritime Safety Committee (MSC)b. Responsibilitiesc. Maritime Environment Protection Committee

(MEPC)i. Coordinates IMO efforts in the area of

prevention and control of pollution from ships

c. Expansion of Scope of IMOi. Ship Operations

1. Ship routing , PSSAsii. Security

1. 1988 SUA Treaties, ISPS Code, 2005 SUA Treatiesiii. Piracy and Armed Robbery

1. Assembly resolutions and MSC Guidelinesiv. Stowaway

1. IMO focal pointv. Persons Rescued at Sea

III. Tacit Amendmenta. Distinguished from an amendment by a Conferenceb. Both MARPOL 73/78 and SOLAS provide for tacit amendment

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EXCESSIVE MARITIME CLAIMS/DELIMITATION OF MARITIME BOUNDARIES (CH. 10)

I. Maritime Boundaries a. Theories of delimitation

i. Equidistant Line (simple, certain, but inflexible)1. Islands generate their own ContShelves, could great

massive distortionsii. Equity

b. CIL: Equitable principles + relevant circumstancesi. “relevant” seen as wider in scope (configuration of coast, islands,

length of coastline, prior conduct)c. Art 6 of Cont Shelf Conv: equidistance + special circumstances

i. “Special” regarded as narrow (ex: islands, channels)d. Some maritime boundaries b/w adjacent states follow the line of latitude

passing through the point where the land boundary meets the sea\e. Common to set boundaries by reference to geographical co-ordinates for

the sake of certainty and simplicityII. Types of excessive claims:

a. Baseline, Territorial Sea, Security zones, EEZIII. Legal History:

a. Grisbardarna (Permanent Ct. of Arbitration) (1909)i. Issue: Norway/Sweden Territorial Sea Boundaryii. Background: 17th Century Practice; Treaty of 1661 on the

Norwegian/Swedish Boundaryiii. Holding: Upheld Boundary Line drawn perpendicular to the coastiv. Tribunal sided with Sweden because the fishermen of the two

countries had to use certain areas frequently and they conducted lobster fishing in certain places

1. Acted like they were exercising possession of certain areas2. Looked at past practice as a key factor

b. North Sea Continental Shelf Case (1969)i. Equitable principles and agreementii. Under equidistance the concavity of the Germany coastline would

have give it a very small portion of the North Sea Shelfiii. Great emphasis on natural prolongation of land territory

c. Anglo-French Case (1977)i. Delimitation of Western Approaches b/w France and UKii. Court: Equidistance + Special Cir rule of Art 6 in effect ‘gives

expression to a general norm that failing agreement, boundary is determined on equitable principles

iii. Give Scilly islands “half-effect” because they are smalliv. Channel islands were on the ‘wrong’ side of the boundary, they

were given their own 12 mile enclave of continental shelf, with boundary otherwise drawn down the middle of the English Channel equidistant from the coasts of England and France

d. Libya-Tunisiai. Used a line perpendicular to the coast, ignoring geopolitical

arguments

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ii. Tunisian Kerkennah islands given half-effectiii. Principle of proportionality used in a different way, to confirm the

equitableness of the court’s proposed solutioniv. Court regarded a line extending seawards from the terminus of the

land boundary which neither party had crossed as a highly relevant circumstance

e. Nicaragua v. Honduras (2007)i. Starting point is the thalweg of the main mouth of River Cocoii. Honduras got the islandsiii. Nicaragua won greater sovereignty over Caribbean watersiv. Demarcated a line roughly midway between the two countries'

rival claims. Honduras said the boundary should be drawn along the 15th parallel while Nicaragua wanted it to run northeast from the coast. The new line deviates to the south where it is disrupted by the territorial waters of the islands awarded to Honduras.

IV. Article 15 a. Opposite or Adjacent Countries, failing an agreement between them, use

Equidistant Line from the nearest points on the baselinesb. Mutual Agreementc. Historic title or special circumstancesd. Same as Article 12 of 1958 Convention

V. Other Articles a. Article 74: delimitation of the EEZ same as Continental Shelfb. Article 76(10): not prejudice delimitation of the continental shelfc. Article 83: delimitation of continental shelf by agreement, equitable

solution. Parties may not hamper agreement (such as by drilling)d. Differs from the 1958 Conventione. Part XV (See Article 298(1)

VI. General Legal Principles wide discretiona. Each case unique – no universal binding principlesb. Best solution is agreement between the parties

VII. General Court Procedure p. 187a. Begin by drawing an equidistance line and then considering if it needs

modificationb. Will not choose a boundary line if it cuts off areas more naturally

belonging to one partyc. Courts not engaged in distributive justiced. Court may limit the boundary because of Continental Shelves claimed by

other StatesVIII. Equitable Factors

a. Relationship of land to sea areai. Proportionalityii. Natural prolongation/lengthiii. Coastal accessiv. Islands

b. Ecologicali. Fish stocksii. Reefsiii. Protection of the marine environment/resource management

c. Special Circumstancesd. Historic Relationship/Prior Conduct

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e. Impact on Navigationf. Security considerations

IX. Co-Operative Arrangements a. For exploitation of the sea-bed or fishing resources instead of a boundary

line (a zone where all of their zones overlap)i. Ex: Japan/South Korea for seabedii. Ex: Norway/USSR Barents Sea for fishing

b. Joint exploitation zone for sea-bed/fishing which straddles the boundary and is part of a boundary settlement

i. Ex: France/Spain Seabed in Bay of Biscayii. Ex: Argentina/Uruguay Fisheries

c. Arrangements for exploitation of gas & oil fields lying across the boundary line

i. UK/Norwayii. Abu Dhabi/Qatar

d. Arrangements for managing transboundary fish stocksi. See Ch. 14

X. Excessive Baseline Claims a. Drawn other than from low water lineb. Encompassing rocks c. Straight baselines

i. Drawn other than where there are fringing islands or deeply indented coastlines

ii. Drawn incorrectly for archipelagos iii. Excessive length of each segment (>24 NM or >100 NM in

archipelagos)d. Ex: China straight baselines, Libya closing line off the gulf 50 miles out,

saying military aircraft can’t fly over our EEZXI. Prior Notification and Consent Regimes and Other Restrictions

a. Over 40 nations purport to restrict warship passage in the territorial seab. Cargo/propulsion type restrictionsc. Restrictions on military activities in the EEZ

i. Exercises ii. Weapons firings/testing Military Survey

d. Limiting types of ships, numbers of shipsXII. Freedom of Navigation Program (est 1979)

a. Diplomatic protest plus operational assertioni. Send a navy ship to operate in the territorial sea to challenge the

claim that no foreign warships may be in territorial sea1. No weapons exercises in our EEZ then we’ll go do that2. No overflight of military aircraft in our EEZ send a plane!

b. Assertions publicizedc. Equal opportunity programd. Why challenge claims?

i. Customary international lawii. “Persistent objector”iii. Preclude adverse precedentiv. Encourage compliance with UNCLOSv. Maintain record of State practice

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DISPUTE RESOLUTION AND NATIONAL SECURITY CONCERNS (CH. 17 AND 19)

I. Part XV Settlement of Disputes a. Nature of the problem:

i. Delimitation of boundariesii. Fishingiii. Enclosure to protect declining stocksiv. Assertion of independent economic nationalism by third world

nationsv. Emergence of distant water fleetsvi. Need for conservation and management

b. US favored compulsory dispute resolution to limit unilateral claimsc. Under the ICJ there is an optional acceptance of jurisdiction clause

II. Section 1 a. Art. 279: obligation to settle disputes by peaceful meansb. Art. 280: choice of meansc. Art. 282: procedures established by other agreements in lieu OKd. Art. 283: expeditious exchange of views to solve disputee. Art. 284: If parties fail to reach a settlement through agreed procedures,

one of them may invite the other to submit to Conciliation procedurei. Each party chooses two conciliators and the four choose a 5th

III. Section 2 – Compulsory Procedures (if parties fail to settle dispute under Section 1)a. Art. 287(1): Choice of Procedure

i. International Tribunal for the Law of the Seaii. International Court of Justiceiii. Arbitral tribunal constituted in accordance with Annex VII iv. Special arbitral tribunal in accordance with Annex VIII

b. Default mechanism is arbitration Annex VIIc. U.S. will only accept arbitration, despite being the moving force behind

ITLOSd. Pursuant to Annex VI, the 21 judges are appointed by majority vote

i. Group of 77 controlsii. Oversight by U.S. delegation?

IV. Section 3 Limits and Exceptions to Section 2a. Art 297(1): coastal State sovereign rights and jurisdiction subject to

compulsory measures only when:i. navigation, overflight, submarine cables, pipelines (see art. 58)ii. conforming coastal State laws and regulationsiii. contravention of international rules and standards for the

protection of the marine environmentb. Art 297(2): not marine scientific researchc. Art. 297 (3): not fisheriesd. Opt Out Art. 298:

i. maritime boundary disputes

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ii. military activitiesiii. UNSC actions

V. Jurisdiction a. Art. 288(1): Juris over interpretation or application of the Conventionb. Art. 288(2): Over an international agreement related to the purposes of

this Convention, which is submitted to it in accordance with the agreement

c. See Art. 21 of Annex VId. Art. 288(3): Sea-Bed Disputes Chamber

VI. Annex VI: Statute of the International Tribunal for LOS a. Art. 20 Access to Tribunal: States Parties & “Other entities” if accepted

by all partiesb. Art. 21 Jurisdiction: “provided for in any other agreement”c. Art. 22 Reference of Disputes subject to Other agreements: treaty or

convention already in forced. Art 290(1): provisional measures to preserve the respective rights of

partiese. Art 292 prompt release of vessels: upon posting of a reasonable bond

or other financial securityf.

VII. Military Uses of the Sea

a. UNCLOS as a peacetime treaty i. Avoids all discussion of law of armed conflictii. Preamble statementiii. Other bodies of law governing law of armed conflict

VIII. Laws of War at Sea a. Hague Peace Conference of 1907b. Customary International Law

i. San Remo Manual on International Law Applicable to Armed Conflicts at Sea

IX. Protecting National Interests At Sea During Peacetime a. U.N. Charter

i. Article 2(3): all members must settle disputes by “peaceful means” such that international peace and security are not endangered.

ii. Article 2(4): No use of force against territorial integrity or political independence (might allow humanitarian)

1. Use of force = aggression2. Does it cover economic/political/threats? Ambig.

iii. Article 39: Security Council shall determine the existence of any threat to the peace, breach of peace, or act of aggression…

iv. Article 41: SC may decide what measures not involving the use of force are to be employed to give effect to its decisions, and it may call upon the Members to apply such measures. May include: partial interruption of economic relations and of rail, sea, air, postal,

42

telegraphic, radio and other means, and severance of diplomatic relations

v. Article 42: Should the SC consider that measures provided for in Art 41 would be or have been inadequate, it may take any action by air, sea or land forces as may be necessary to maintain or restore int’l peace or security. Actions could include: demonstrations, blockades and other operations by air, sea or land forces of Members.

vi. Article 51: Self Defense, An Exception to 2(4)1. If an armed attack occurs2. Limitations:

a. You must report action to SC if they say discontinue, you must stop

b. Temporal Limitsc. Measure must be necessary to security, proportionald. Must be “armed attack”, economic/political not enough

X. Non-military Measures i. Diplomaticii. Economiciii. Judicial

XI. Military Measures i. Naval Presenceii. Right of self-defenseiii. Interventioniv. Embargov. Maritime Quarantinevi. Anticipatory self-defense

XII. Armed Conflict at Sea a. Applicability of Law of Armed Conflictb. General Principles

i. Minimum force necessaryii. Dishonorable means/treachery forbidden

c. Combatants and Noncombatantsd. Examples:

i. Security Council Resolution 678 allowing response to invasion of Kuwait

ii. 1982 Falkland Islands (UK)1. UK established a 200 mile MEZ measured from single

point in middle of islands, Argentina warships forbidden2. Sunk an AR ship near because it was a threat3. Zones generally respected

iii. 1980-8 Gulf War: reflagging ships gave rise to questions about a need for ‘genuine link’

iv. Cuban Quarantine of 1962: US did not get SC consent before starting quarantine to stop importation of missile parts from Soviet Union to island

XIII. Law of Neutrality a. Prevent use of their TS/IW as bases of naval operations or a sanctuary

i. Innocent passage of belligerents okayb. International straits:

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c. Archipelagic waters: Belligerents have to avoid acts of hostility in arch waters

d. Neutral airspacee. QUESTION: Does it have to be declared war?

XIV. Belligerent Rights a. Right of Visit and Search neutral merchant ships on high seas to

intercept contraband goods b. Right of Blockade of enemy ports

XV. Military Uses of the Sea at Peacetime a. Duty of Routine Law enforcementb. Deployment of monitoring devices

i. Might be structures, which would be under Art 60 and CS gets right to authorize in EEZ and on continental shelf

ii. Or you could argue that a right to lay them in the EEZ or Continental shelf arises by analogy of freedom to lay submarine cable and pipelines (Art 58, 79, 87)

c. Some states say you need permission in their EEZ to carry out military exercises

i. IT, Ger, Neth have rejected thisii. These are unattributed rights, not clear if they are included in Arts

58, 87 (p. 427)

XVI. USNS BOWDITCH Incident (2001)a. Military survey ops in Yellow Sea in China’s EEZb. Aggressively confronted by PLA(N) FFG and ordered to leave EEZc. Returned with armed escort

XVII. EP-3 Incident (2001)a. US EP-3 on a routine recon flight 70 miles SSE of Hainan Island (China’s

EEZ)b. Two Chinese F-8s approachedc. Collision resulted

i. Damage to wingtipii. Prop sheared offiii. Missing nose cone

d. American crew detained, later releasede. Countries released an ambiguous statement to save face

i. US said it was ‘regret/sorrow’ not an apologyf. US/China disagree on legality of over flights by US naval aircraft where

the incident occurred

XVIII. USNS IMPECCABLE Incident (2009)a. Routine ops in South China Sea in PRC EEZb. Surrounded by 5 PRC vesselsc. Left area - returned with armed escortd. US POSITION

i. Right to conduct military activities in the EEZ1. Articles 19, 30, 58 2. Long-standing state practice

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ii. Due regard: Art. 56 iii. Not a threat or use of force against the territorial integrity or

political independence of PRC1. Article 192. Consistent with UN Charter

iv. Enhances regional stabilitye. PRC POSITION

i. Only freedom of over flight applies in the EEZii. Military activities in the EEZ require coastal state consentiii. Intelligence collection poses threat to PRC security interestsiv. States must refrain from any threat or use of force against the

territorial integrity or political independence of any state1. Article 301

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