Doreen Grace R.

Fermin

Contemporary Developments on International Law Mid-Term Examination FS2012

1. Are Ambers contentions correct? Discuss the legal basis/es of Ambers claims. The whaling activities of the Bulkans are not per se illegal since (based on the given facts), the poaching of bowhead whales is part of the traditions and rituals of the whaling community. The International Whaling Commission has recognized aboriginal subsistence whaling. According to ICW, there are certain areas where whaling forms part of the culture and tradition of a specific territory but subject to current IWC regulations. Examples of which are the whaling activities in Greenland, Siberia, St Vincent and The Grenadines, and in Alaska. However, it should be noted that the national government of each territory has the obligation to provide ICW of significant evidence that such activity is imperative for cultural preservation and subsistence needs of their people. This is to enable the commission to advice each territory on safe catch limits.i Despite having this contention, Randall can validly regulate the bowhead whales since there exists no agreement between the two states with the same tenor of ICW, which implies the consent of Randall in the whaling activities done inside its EEZ. Article 62 of UNCLOS states that Coastal states which do not have the capacity to harvest the allowable catch within its EEZ may permit other States to access surplus to allowable catch, pursuant to terms, conditions, and laws they may establish through an agreement. In giving access, it should also give due regard to the national interest of the coastal state and customary rights established by other states. Moreover, the Nationals of the states allowed to fish in the EEZ should comply with the conservation measures established by the laws and regulation of the coastal state. Such measures may include but not limited to 1) licensing of fishermen, vessel and equipment plus payment of fees, 2) fixing quotas, 3) fishing seasons, 4) conduct of fishing and research, and enforcement. Given the facts, the Bulkans breached the territorial sovereignty of Randall by whaling inside their EEZ. The Merapi Sea separates Randall and Amber by 420 nm, the midpoint being 210 nm. By reaching 250 nm from the coast of Amber, M/Y Nguyen has already entered the EEZ of Randall and thus, subject to laws governing the area. The Bulkans did so without pre-existing agreement between Amber and Randal allowing the former to access the natural marine resources in the area. Therefore, they are liable through the EEZ Act of 2003, which prohibits within 200 nautical miles from the low-water line along the coasts of Randall. Amber cannot insist on its fishing rights since there is no surplus of natural resources, outside the capacity of Randall to utilize. Also, despite the migration of bowhead whales, they not highly migratory species of fish in the region which according to Article 64, allows optimum utilization of such species throughout the region, both within and beyond the EEZ. Bowhead whales are marine mammals. The same article of UNCLOS expressly allows the coastal states to have a stricter prohibition, limit, and regulation on their exploitation. Randall violated no international law when it prohibited whaling in its EEZ. In fact, international law supports the prohibition of Randall with Title V of UNCLOS and customary international law as its basis. According to Article 56 of UNCLOS, Randall has sovereign rights for the purpose of exploring, exploiting, conserving, and managing natural resources within the zone. It has jurisdiction with regard to the protection and preservation of the marine

environment. The prohibition of whaling is within the boundaries set by Article 57 of UNCLOS, which prescribes that EEZ shall not extend beyond 200 nm from the baselines from which the breadth of the territorial sea is measured. Moreover, Article 58 provides that other states shall comply with the laws and regulations adopted by the coastal state, in this case, Randall. Furthermore, despite not being a signatory of UNCLOS, Amber is bound by customary international law recognizing the 200 nm of EEZ. According to Barbara Kwiatkowska, the emergence of customary law on the EEZ is within the meaning of Article 38 of ICJ statute, 'as evidence of general practice accepted as law.' The practice of allowing the coastal state to exercise sovereignty has become more widespread. Also, the emergence of EEZ is embodied in positive law as seen in UNCLOS and rulings of ICJ.ii Thus, with the given facts, there is no internationally wrongful act committed by Randall as it only asserted its rights as a sovereign State within its jurisdiction. Amber has violated international law by exploiting marine resources within the established EEZ of Randall through the conduct of Balkans,

whom the state provided means to whale beyond the demarcated EEZ, as provided by the Article 11 of Responsibility of States for Internationally Wrongful Acts. It could be categorized as conduct acknowledged and adopted by a State as its own since the act of rejecting the request of the government of Randall may be deemed as acquiescing the whaling of the Balkans.iii Moreover, it is the government of Amber who provided them the means to pursue their whaling activities by giving them M/Y Nguyen, albeit it reaching beyond their territorial jurisdiction.

2. Did Randall violate international law when it prohibited whaling activities within its baselines as demarcated by its EEZ Act of 2003? No. The law delimiting maritime zones should not be solely dependent on the national interests and will of the coastal state. This law will not only affect citizens and those within the territory of the state but also the rest of international community since delimitations of the sea has an international character. It should give due regard to international law, which governs the rights and duties of states vis--vis other states. The primary sources of international law according to the ICJ statute would be: 1) international agreements or treaties, 2) international customs, 3) general principles of law, accepted by civilized state and the subsidiary sources of international law are judicial decisions and the teachings of the most highly qualified publicists.iv Given, the facts of the case, and as previously mentioned in the preceding question, EEZ Act of 2003 which provides the demarcation of its EEZ and the prohibition of whaling in the said maritime time zone, did not violate any international law. The delimitation was based on valid sources of international law and is not solely determined on the interest of Randall, which is to preserve and protect its tourism industry. The first basis is UNCLOS, which is an international treaty. It correctly applied Article 5 of UNCLOS, which provides that the normal baseline measuring the breadth of the territorial sea is the low-water line along the coasts. Also, with regard to the distance of 200 nm from the low-water line set by the EEZ Act of 2003, Randall violated no international law since it is based on Title V of UNCLOS. Moreover, despite not being a signatory of UNCLOS Amber is bound by international custom, as evidence of a general practice accepted as law. The 200 nm EEZ can be categorized as customary international law as it exhibits general practice and states have accepted this as law. General Practice is evidenced by the overwhelming majority of states, who have diverse economic development and geographical characteristic, which have acquiesced the EEZ limits. These states had unilaterally applied this to their domestic policies including the multilateral or bilateral treaties it entered with other states pursuant to their ratification of UNCLOS. The international customary as a source of rights and obligations is also shown in the Norweigian Fisheries Case. ICJ resolved in favor of Norway, delimiting its fisheries zone. It ruled that since Norway has exploited since time immemorial the disputed fisheries, and its inhabitants derive their livelihood from fishing and whaling in the area, and thus Norway has validly enacted a decree delimiting its fisheries zone. Therefore, Amber is bound, through customary international law, to respect the limits provided by the EEZ Act of 2003, which is enacted pursuant to valid sources of international law.

Aboriginal Subsistence Whaling, International Whaling Commission available at http://iwcoffice.org/aboriginal (last accessed August 1, 2012). ii Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea iii Article 11 Conduct acknowledged and adopted by a State as its own - Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own. iv ICJ Statute available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0(last accessed August 1, 2012).