The Limits of Maritime Jurisdiction
Dedicated to the memory of
Professor Jon Markham Van Dyke
The Limits of Maritime Jurisdiction
Edited by
Clive Schofield,
Seokwoo Lee and
Moon-Sang Kwon
A Law of the Sea Institute Publication
LEIDENBOSTON
2014
Library of Congress Cataloging-in-Publication Data
The limits of maritime jurisdiction / edited by Clive Schofield, Seokwoo Lee and Moon-Sang Kwon.
pages cm
Includes index.
A Law of the Sea Institute Publication.
ISBN 978-90-04-26258-4 (hardback : alk. paper) ISBN 978-90-04-26259-1 (e-book)
1.Law of the sea. I. Schofield, Clive H., 1969 editor of compilation. II. Yi, Sog-u, 1967 editor of
compilation. III. Kwon, Moon-Sang, editor of compilation.
KZA1145.L56 2014
341.448dc23
2013035466
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Contents
List of Figures.................................................................................................................
List of Tables..................................................................................................................
Preface and Acknowledgments................................................................................
xi
xiii
xv
Introduction...................................................................................................................
Exploring the Limits of Maritime Jurisdiction
Clive Schofield, Seokwoo Lee and Moon-Sang Kwon
A Jurisprudence of Pragmatic Altruism: Jon Van Dykes Legacy to
Legal Scholarship.....................................................................................................
Harry N. Scheiber
21
pART ONE
on the limits of maritime jurisdiction
Chapter 1.The Limits of Maritime Jurisdiction.................................................
Ivan Shearer
Chapter 2.The Territorialisation of the Exclusive Economic Zone:
A Requiem for the Remnants of the Freedom of the Seas?.......................
Ian Townsend-Gault
51
65
PART TWO
DISPUTED LIMITS
Chapter 3.The Role of Islands in the Generation of Boundaries at Sea....
John Briscoe and Peter Prows
79
vi
contents
Chapter 4.The El Dorado Effect: Reappraising the Oil Factor in
Maritime Boundary Disputes...............................................................................
Clive Schofield
111
Chapter 5.Oil and Water: Assessing the Link between Maritime
Boundary Delimitation and Hydrocarbon Resources...................................
John W. Donaldson
127
Chapter 6.Adriatic Blues: Delimiting the former Yugoslavias
Final Frontier............................................................................................................
Damir Arnaut
145
Chapter 7.The Scope for Unilateralism in Disputed Maritime Areas........
Youri van Logchem
175
PART THREE
ENDURING DISPUTES IN EAST AND SOUTHEAST ASIA
Chapter 8.Sovereignty as an Obstacle to Effective Oceans Governance
and Maritime Boundary MakingThe Case of the South China Sea....
Sam Bateman
201
Chapter 9.The South China Sea: Competing Claims and Conflict
Situations....................................................................................................................
Guifang (Julia) Xue
225
Chapter 10.Politics, International Law and the Dynamics of Recent
Developments in the South China Sea.............................................................
Tran Truong Thuy
249
Chapter 11.The Notion of Dispute in the Contemporary International
Legal Order: Qualification and Evidence.........................................................
Zhang Xinjun
269
Chapter 12.Perspectives on East China Sea Maritime Disputes:
Issues and Context..................................................................................................
Suk-Kyoon Kim
285
Chapter 13.The China-Japan Dispute over Entitlement in the
East China Sea: Legal Issues and Prospects for Resolution........................
Tara Davenport
297
contents
vii
PART FOUR
MARITIME SECURITY AND THE LIMITS OF MARITIME JURISDICTION
Chapter 14.Maritime Security in the post-9/11 World: A New Creeping
Jurisdiction in the Law of the Sea?....................................................................
Stuart Kaye
327
Chapter 15.Jurisdiction over Pirates and Maritime Terrorists......................
Robert Beckman
349
Chapter 16.Koreas Trial of Somali Pirates..........................................................
Seokwoo Lee and Young Kil Park
373
Chapter 17.A Missing Part of the Law of the Sea Convention:
Addressing Issues of State Jurisdiction over Persons at Sea......................
Irini Papanicolopulu
387
PART FIVE
PUSHING THE LIMITS OF OCEANS GOVERNANCEENVIRONMENTAL
AND MARINE LIVING RESOURCE CONCERNS
Chapter 18.Distributing a Conservation Burden across Multiple
Jurisdictions: A Case Study of the Western and Central Pacific Tuna
Fisheries......................................................................................................................
Quentin Hanich
Chapter 19.In Combating and Deterring IUU Fishing:
Do RFMOs Work?....................................................................................................
Kuan-Hsiung Wang
Chapter 20.Good Faith Obligations to Protect and Preserve the
Marine Environment: A Proposal on Uniform High Seas Fisheries
Management..............................................................................................................
Anastasia Telesetsky
Chapter 21.The Legacy and Fate of Bluefin Tuna under
International Law....................................................................................................
Emily A. Gardner
407
431
449
473
viii
contents
PART SIX
POLAR LIMITS
Chapter 22.The Southern Ocean, Climate Change and Ocean
Governance................................................................................................................
Marcus Haward
507
Chapter 23.Whaling in the Antarctic: Protecting Rights in Areas
Beyond National Jurisdiction through International Litigation................
Natalie Klein and Tim Stephens
525
Chapter 24.Marine Protected Areas in Antarctic Waters: A Review of
Policy Options in the Context of International Law....................................
Ben Milligan
549
Chapter 25.Evaluating Canadas Position on the Northwest Passage in
Light of Two Possible Sources of International Protection........................
Suzanne Lalonde
575
Chapter 26.The Practicalities of the Ecosystem Approach in the
Barents Sea: The ECOBAR Project......................................................................
Tavis Potts, Branka Valcic, JoLynn Carroll and Michael Carroll
589
PART SEVEN
NEW CHALLENGES IN OCEANS GOVERNANCECLIMATE CHANGE
AND THE OCEANS
Chapter 27.Sea Level Rise and the Law of the Sea: How Can the
Affected States Be Better Protected?.................................................................
Moritaka Hayashi
609
Chapter 28.Ocean Energy Development in Response to the Convention
on Climate Change: The Case of Korea............................................................
Seong Wook Park and Charity M. Lee
627
Chapter 29.Exploiting the Oceans for Climate Change Mitigation:
Case Study on Ocean Fertilisation.....................................................................
Karen N. Scott
653
Chapter 30.Through the Back Door: The Limits of the UN Law of the
Sea Conventions Usefulness as a Tool to Combat Climate Change.......
Jenny Grote Stoutenburg
679
contents
Chapter 31.Principles and Normative Trends in EU Ocean
Governance................................................................................................................
Ronn Long
ix
699
PART EIGHT
BEYOND THE LIMITSEXPLORING AND MANAGING NEW FRONTIERS
Chapter 32.Governing the Blue: Governance of Areas Beyond National
Jurisdiction in the Twenty-First Century.........................................................
David Freestone
729
Chapter 33.Beyond Delimitation: Interaction between the Outer
Continental Shelf and High Seas Regimes.......................................................
Joanna Mossop
753
Chapter 34.Addressing the Marine Genetic Resources Issue:
Is the Debate Heading in the Wrong Direction?...........................................
David Leary and S. Kim Juniper
769
Index.................................................................................................................................
787
List of Figures
Figure 3.1The United KingdomFrance Channel Arbitration.................
Figure 3.2The Maritime Boundary between Libya and Tunisia................
Figure 3.3The MaltaLibya Continental Shelf Boundary..........................
Figure 3.4The BahrainQatar Maritime Boundary.....................................
Figure 3.5The Romania/Ukraine Provisional Equidistance Line..............
Figure 3.6The Bangladesh/Myanmar Territorial Sea Delimitation..........
Figure 3.7The Bangladesh/Myanmar Adjusted Equidistance Line..........
Figure 5.1Maritime Delimitation Agreements from pre-1950 per
five year periods.......................................................................................................
Figure 5.2Maritime Delimitation Agreements signed/agreed per
annum, 19802012...................................................................................................
Figure 5.3Hydrocarbon Influence per Delimitation Agreement,
19802012...................................................................................................................
Figure 6.1Map of the Raan-Drnovek Agreement........................................
Figure 6.2Croatia-Montenegro Interim Protocol............................................
Figure 6.3Bosnia and Herzegovinas Coast......................................................
Figure 6.4The former Yugoslavias Straight Baselines..................................
Figure 8.1Malaysian and Vietnamese Joint Submission...............................
Figure 8.2Notional Equidistance Lines in the South China Sea
ignoring the Islands.................................................................................................
Figure 8.3Notional Equidistance Lines in the South China Sea
including the Islands..............................................................................................
Figure 10.1Competing Maritime Claims in the South China Sea..............
Figure 18.1Scale of Interests for Coastal States: From Bigeye to Skipjack
(average 20082010)..............................................................................................
Figure 18.2Scale of Interests for Flag States: From Bigeye to Skipjack
(average 20082010)..............................................................................................
Figure 18.3Scale of Interests for Coastal States: From Purse-seine to
Longline (average 20082010)............................................................................
94
95
98
100
103
105
107
132
133
137
150
157
161
165
205
210
211
257
415
415
416
xii
list of figures
Figure 18.4Scale of Interests for Flag States: From Purse-seine to
Longline (average 20082010)............................................................................
Figure 26.1The Barents Sea and Regional Bathymetry.................................
Figure 26.2The Methodological Frame of ECOBAR Objective 4..............
Figure 26.3Expert Group Results for Scenario 1: Cooperative Ecosystem
Management in the Barents Sea Region..........................................................
Figure 26.4Expert Group Results for Scenario 2: Continuing Trends.....
416
591
600
605
605
List of Tables
Table 5.1.Joint Regimes in Delimitation Agreements since 1970................
Table 8.1.Relative Size of Small Islands in Indo-Pacific Region...................
Table 14.1.State PracticeFreedom of Navigation and Security.................
Table 14.2.States That Have Objected to Nuclear Ships Passing through
Their Territorial Sea or EEZs................................................................................
Table 26.1.ECOBAR Scenarios and Drivers.........................................................
Table 26.2.Assumptions under the Scenarios for the Political Change
Driver...........................................................................................................................
Table 26.3.Assumptions under the Scenarios for Macro-economic
Change Driver...........................................................................................................
Table 26.4.Assumptions under the Scenarios for Climate Change Driver
Table 28.1.Two-track Approaches for Preparing Responses to Climate
Change........................................................................................................................
Table 28.2.Status and Target Level of New and Renewable Energy
Supply by Korea and Others................................................................................
Table 28.3.Government Budget for New and Renewable Energy in
Korea (Unit: 100 million won (~100,000 USD)).............................................
Table 28.4.Geophysical Conditions for Establishing Ocean Energy
Plant Facility..............................................................................................................
Table 28.5.Advantages and Disadvantages of New Energy...........................
Table 28.6.Advantages and Disadvantages of Renewable Energy..............
Table 28.7.Domestic Laws Related to Renewable Energy.............................
142
216
335
346
601
602
602
602
629
630
630
632
633
634
642
Preface and Acknowledgments
Harry N. Scheiber
The successful conclusion of the prolonged international negotiations that produced the United Nations Law of the Sea Convention (LOSC) in 1982 was a
transformative event in the history of modern international law. That it is an
agreement global in reach, rather than one of limited multilateral dimensions,
is itself a feature of great historic importance. Even before its signing, and prior
to its formal entry into force in 1994, the Convention impelled an extraordinary
acceleration in the pace of ocean-law development: it led to a proliferation in
the number and types of ocean resources and marine activities affected by new
rules, large principles, and emerging aspirational understandings. This complex
process of development continues in a robust way today, as shown by the papers
in the present volume.
The Law of the Sea Institute (LOSI) at the University of California, Berkeley
is grateful to the authors and editors of this book, which contributes new perspectives on many vital aspects of ocean law and policy. We also welcome the
collaboration in organisation and funding of the project culminating with an
international conference at the Australian National Centre for Ocean Resources
and Security (ANCORS) at the University of Wollongong, Australia, and with this
book, extended by the Korea Ocean Research & Development Institute (KORDI)
(now KIOSTthe Korea Institute of Ocean Science and Technology) and the
other cooperating sponsors.
Since the founding of the original LOSI in the mid-1960s, its conferences and
publications have served as major forums for scholarly analysis and international
discourse on how best to achieve an effective and equitable legal order for the
oceans. Jurists, government officials, industry representatives, environmental
organizations, and international agency staff all have participated prominently
in LOSI activitiesspeaking at its workshops, writing of its Occasional Papers,
and above all presenting their research and policy views in a magisterial series
of Proceedings volumes. The latter series became recognised as among the most
important works in the literature of ocean law and policy; and many of them
stand today as classics.
xvi
preface and acknowledgments
The Institute has been headquartered and administered since 2002 at the Law
School of the University of California, Berkeley. It was founded at the University
of Rhode Island in 1965, where John Knauss, Lewis Alexander, William Herrington
and other major figures in ocean policy studies led the organisation; later it was
headquartered at University of Hawaii, then briefly to the University of Miami.
In 2002, the UC Berkeley Law School assumed responsibility for the organisations support, and it became officially a unit of our University. For eleven years,
Professor David D. Caron was co-director with me of LOSI at Berkeley; he is now
Dean of Law at Kings College, London, but he continues to be associated with the
Institute in its various projects.
At Berkeley Law, we have remained firmly committed to nurturing the international outreach and participation that have been the hallmark of LOSI from
the time of its founding. In this effort, some of the most eminent figures in ocean
law studies internationallyincluding the late Professor Jon Van Dyke, to whom
this volume is dedicatedcontinuously lent their devoted support and invaluable counsel to our efforts. Papers from the LOSI series of major international
conferences have appeared, after being revised and comprehensively edited, in
a series of books published by Martinus Nijhoff Publishers (an imprint of Brill
Academic Publishers), the present volume being the most recent in this series,
which succeeds the older Proceedings series.1
Recent LOSI publications have considered many aspects of the implementation of LOSC agreement and ocean governance issues related to other regimes for
the oceans: marine resources management and conservation, dispute settlement,
technology and ocean science, and practical diplomacy reaching to all dimensions of ocean uses. Regions and institutions formed the organising theme of a
2013 volume in the LOSI series, and books in editing at this writing will address
key problems in ocean governance and the law of straits. In the present volume,
authors from sixteen countries provide learned perspectives on a range of contemporary issues that are of pressing importance to academics, policy makers,
and administrators as well as diplomats. Although the range of subjects is great,
they have in common that the definition of marine jurisdictional limits and
boundaries are a key element in addressing pressing contemporary challenges in
ocean law and governance.
Both in the diversity of the topics considered and in the sense of urgency with
which the authors have addressed them, these papers pay tribute to the special
genius and spirit that were so admirable in the voluminous writings of Professor
Van Dyke whose unexpected death occurred on the day when he was scheduled
1 The LOSI website at www.lawofthesea.org includes the titles of all papers in the older
Proceedings series, as a guide to researchers, as well as web site and journal citations
for papers that have been published or posted under LOSI auspices since the move of
headquarters and reorganisation at Berkeley.
preface and acknowledgments
xvii
to speak at the Wollongong conference, to the design and organisation of which
he had contributed in many ways.
Special thanks are owed to Professor Clive Schofield, who has played the
lead role in the editorial team, and to his co-editors Professor Seokwoo Lee and
Director Moon Sang Kwon, in the work of bringing this book to completion. Also
requiring thanks are the contributions of many others, among them the creative
role of the research administration of KIOST and the generous financial support
of that distinguished institution. Judge Jin-Hyun Paik of the International Tribunal for the Law of the Sea, and of Seoul National University, has been a stalwart
leader and supporter in the collaborations between LOSI of UC Berkeley and
Korean institutions. Similarly, Professor Yann-huei Song has provided leadership
in regard to the role of Academia Sinica of Taiwan as cooperating sponsor.
The authors and sponsors are greatly indebted to Ms Marie Sheldon, Ms Lisa
Hanson and their colleagues in the editorial and production departments of Brill.
Their talented contributions have been an indispensable reliance for the editors
as they are for the LOSI office at Berkeley. Dean Christopher Edley, Jr, of the UC
Berkeley School of Law, and Dr Moon-Sang Kwon of KIOST have given unstinting
encouragement and material support at every turn in the history of this project.
Similarly, the support offered by the administration and faculty of the University of Wollongong, host institution for the conference, was crucial. Of especial note in this context are Professor Martin Tsamenyi, Director of ANCORS,
Professors Luke McNamara and Warwick Gullet, the past and present Deans of
Law at the University of Wollongong; Professor Judy Raper, Deputy Vice Chancellor (Research) at the University of Wollongong; and Senior Deputy Vice Chancellor
Professor John Patterson. The staff and students of the Australian National Centre
for Ocean Resources and Security, led by the indefatigable Mrs Myree Mitchell,
provided splendid hospitality to the presenters and panellists. Their enthusiasm
and efficiency were essential to the successful realisation of the meeting.
Jon Van Dyke was an inspiring figure and huge presence in ocean law scholarship and policy debates. Apart from his distinction in that regard, he was a man
of exceptional kindness and a good friend of most of the authors in this volume.
The LOSI and its collaborating institutions are honoured to join in the dedication
of this book to his memory.
Introduction
Exploring the Limits of Maritime Jurisdiction
Clive Schofield, Seokwoo Lee and Moon Sang Kwon*
While it is the case that the boundaries of national jurisdiction over land territory
are well established and relatively stable or, at the least, the contours of extant
and often longstanding territorial disputes are well defined, the same does not
hold true offshore. Despite significant progress made towards the delimitation of
international ocean boundaries,1 less than half of the potential maritime boundaries have been even partially delimited.2
This remarkable state of affairs in large part stems from the enormous expansion in claims to maritime space resulting from the process of creeping coastal
State jurisdiction, especially in the era following the Second World War and in
large part culminating in the negotiations leading to the United Nations Convention in the Law of the Sea (LOSC).3 A key achievement of LOSC was the definition
of clear spatial limits for national claims to maritime jurisdiction, something that,
notably, had eluded earlier codification efforts.
The prodigious extension in the breadth of coastal State claims to maritime
jurisdiction has resulted in a similarly significant increase in the number of
overlapping maritime claims and a consequent proliferation in the number
* Professor Clive Schofield is Director of Research, Australian National Centre for Ocean
Resources and Security (ANCORS), University of Wollongong, Wollongong, NSW 2522,
Australia. E-mail: clives@uow.edu.au. Professor Schofield is the recipient of an Australian
Research Council Future Fellowship (FT100100990). Professor Seokwoo Lee is Professor
of Law at Inha University, Incheon, Korea. Dr Moon Sang Kwon is Principal Research
Scientist, Korea Institute of Ocean Science and Technology (KIOST).
1 See, in particular, the six (and soon to be seven) volumes that comprise International
Maritime Boundaries, published by Martinus Nijhoff which provide systematic and comprehensive coverage of international maritime boundary agreements.
2 See, J. R. Victor Prescott and Clive H. Schofield, The Maritime Political Boundaries of the
World (Leiden/Boston: Martinus Nijhoff Publishers, 2005), 217218.
3 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
clive schofield et al.
of potential maritime boundaries. This, in turn, helps to explain the profoundly
incomplete nature of the maritime political map of the world in contrast to its
terrestrial counterpart. Thus, while LOSC marked hugely significant progress in
terms of providing a clear spatial framework for maritime claims, much unfinished business remains as States far distant from one another have only gradually
sought to resolve their overlapping maritime claims and define their baselines,
limits and boundaries and many existing maritime boundaries are incomplete in
character. This is the case because many of the maritime boundary agreements
that have been reached among coastal States relate either to only part of the
length of the potential maritime boundary or deal with only one zone, such as
the continental shelf, as opposed to being a single maritime boundary dealing
with all relevant maritime zones including both seabed and water column jurisdiction. Additionally, many agreements are interim, not in force or deal with the
same boundary.4
It can further be observed that, while LOSC offered a welcome measure of
spatial certainty to maritime claims, at least as far as their maximum extent is
concerned, the precise limits of the jurisdictional rights and responsibilities to
be exercised or contained within claimed and bounded marine spaces remains
open to considerable interpretation and debate and this offers a further major
theme evident in this volume. Indeed, the clear definition of marine jurisdictional
rights that the delineation and delimitation of maritime limits and boundaries
offers is of ever greater significance in light of the increasingly intense and diverse
demands and uses to which ocean spaces and resources are prone toa trend
seemingly only set to increase into the future. This, in turn, has led to enhanced
competition over coastal and marine resources and incompatible developments
and activities in the same ocean spaces.
The chapters included here therefore fall under the overarching title, Limits
of Maritime Jurisdiction. This title was purposefully conceived in a broad sense
in order to encompass uncertainties related to both unresolved maritime limits
and boundaries spatially but also emerging challenges and tensions concerning
jurisdictional rights and activities within claimed maritime spaces. The papers
included here arise from a conference under the same banner, held on 28 November to 2 December 2011 at the Australian National Centre for Ocean Resources
and Security (ANCORS) at the University of Wollongong, Australia. The conference was one of a series under the auspices of the Law of the Sea Institute
at the University of California, Berkeley, USA and was supported in particular
by the Korea Ocean Research & Development Institute (KORDI), now renamed
the Korea Institute for Ocean Science and Technology (KIOST), together with
4 See, Clive H. Schofield, Parting the Waves: Claims to Maritime Jurisdiction and the Division of Ocean Space, Penn State Journal of Law and International Affairs ( JLIA), 1 (2012)
1: 4058, 48.
introduction
supporting sponsors (see below). The conference and thus the papers arising
from it address a range of topics including disputes concerning maritime jurisdictional limits and boundaries especially in Southeast Asia, maritime security
and combating piracy, access to and sustainable management of valuable marine
resources, protecting the marine environment, concerns over expanding activities
and jurisdiction in Polar waters, the impacts of climate change on the oceans,
including the potential impact of sea level rise on the scope of claims to maritime
zones and exploring and managing new frontiers offshore.
The Limits of Maritime Jurisdiction is dedicated to Professor Jon Van Dyke. Professor Van Dyke tragically passed away on the evening of the first day of the
conference, having assisted in the opening of the meeting on behalf of the Law
of the Sea Institute. Professor Van Dykes longstanding friend and colleague, Professor Harry Scheiber, accordingly opens the volume with an at once thorough
and scholarly yet also heartfelt tribute to Jons outstanding contribution to the
fields of oceans law and policy and beyond entitled A Jurisprudence of Pragmatic
Altruism: Jon Van Dykes Legacy to Legal Scholarship.
Professor Ivan Shearer provided the conferences keynote address on The Limits of Maritime Jurisdiction, which appears as Chapter 1 of this volume. Professor
Shearer explores the interplay between the ideas of sovereignty and jurisdiction
in relation to the United Nations Convention on the Law of the Sea by providing a survey of the history of jurisdiction in the law of the sea. He notes that the
law of the sea was relatively stable until the mid-twentieth century when
the United States laid claim to natural resources of the seabed and subsoil of the
continental shelf appertaining to the United States. Though this claim did not
extend to the superjacent waters, subsequently other States made claims to
these waters that were essentially sovereignty claims over these areas. Historically, Professor Shearer observes that there was a sense of innocent passage in the
territorial sea recognised by the Geneva Convention on the Territorial Sea and
Contiguous Zone under which sovereignty and jurisdiction in territorial waters
coincide, but that the coastal State concedes a right of innocent passage on a
conditional basis, which it is able to withdraw for due cause. This distinction
between sovereignty and jurisdiction can be also be seen in the Geneva Convention on the High Seas, 1958 and the United Nations Convention on the Law of the
Sea in its expression of the exclusive economic zone. He then goes on to highlight
three situations that manifest the interplay of sovereignty and jurisdiction, the
first being the Impeccable Incident of 2009 involving a US naval vessel in Chinas
EEZ, the Proliferation Security Initiative, launched by President George W. Bush
in 2003, and protection of the marine environment.
In Chapter 2 Professor Ian Townsend-Gault addresses the issue of The Territorialisation of the Exclusive Economic Zone: A Requiem for the Remnants of the
Freedom of the Seas? In this chapter, he responds to a prediction made by Professor Josef L. Kunz of the University of Ohio made in the pages of the American
Journal of International Law in 1956 regarding the apparent death knell of the
clive schofield et al.
freedom of the seas. He focuses on examining the EEZ to determine whether
the rights accorded by this status are implicit or a logical development of the
concept. He looks to the history of States as they began to claim the continental
shelf and superjacent waters and its relationship to marine living resources and
the oil and gas industry. While the territorial sea was marked at three nautical
miles, the United States through the Truman Proclamation declared an extension
of coastal jurisdiction beyond the three nautical mile limit. Eventually, the doctrine of the continental shelf became customary international law and was codified with the Continental Shelf Convention. However, Townsend-Gault points
out that by the time of the first United Nations Conference on the Law of the
Sea, there was no basis to establish a customary international law in regards to
claims to offshore jurisdiction beyond the limits of the territorial sea. He presents
the issues of whether EEZ rights have solely to do with resource exploration
and exploitation, coupled with other specified economic interests, or do they
should theygo further than this? While coastal States desire more control over
their EEZs, he calls for these States to provide a detailed justification of how the
current arrangements represent a threat to their interests.
In Chapter 3, The Role of Islands in the Generation of Boundaries at Sea, John
Briscoe and Peter Prows look to how the law employs islands in the establishment of maritime boundaries. They note that while the term island was widely
accepted as indicated in the definition provided in the Convention on the Territorial Sea and the Contiguous Zone and carried over into the United Nations
Convention on the Law of the Sea as a naturally formed area of land, surrounded
by water, which is above water at high tide, there have been ambiguities in the
application of the definition to various features in the oceans. The authors go
on to describe the ways islands are utilised in generating maritime boundaries
through terms of the Convention while highlighting the important issues raised
in the use of islands in the settlement of the territorial sea, the contiguous zone,
archipelagic waters, the continental shelf, and the exclusive economic zone. They
go on to discuss important maritime-boundary delimitation decisions that centre
on the issue of whether islands should be used as basepoints in the establishment of provisional equidistance or median lines and also whether their presence
should be a special circumstances in justifying the adjustment of the provisional
line. The authors end with their prediction that the definition of what is an
island will continue to change especially given the challenges presented by the
acceleration in the rise of the sea-level.
Clive Schofield provides in Chapter 4 an exploration of the impact of seabed
resources on maritime boundary disputes with a contribution entitled The El
Dorado Effect: Reappraising the Oil Factor in Maritime Boundary Disputes. He
notes that against the context of heightened global energy security concerns, the
suspected or presumed presence of seabed hydrocarbons resources has served
to intensify maritime boundary disputes, such as those in the South China Sea
and Arctic Ocean. Professor Schofield observes that given the highly speculative
introduction
nature of estimates of oil and gas resources in these areas they are often misleading and therefore do a disservice towards efforts to resolve maritime boundary
disputes. While outlining the issue of overlapping claims to maritime jurisdiction,
in particular with EEZ and continental shelf claims between States, he points out
that the process of defining maritime jurisdiction claims is on-going and that
present-day rules and practice of States of a 200 nautical mile EEZ signifies a
reallocation of resources from an international to national jurisdiction. Given
the state of international law on this issue, Professor Schofield then looks to the
situation regarding increasing demand for oil and the pressure that places on
the search and exploitation of deep and ultra deepwater oil reserves. Since there
is a strong belief that these oil reserves under the water exist, it creates the circumstances in which the disputants to a maritime boundary dispute, where oil
reserves are perceived to exist, are highly reluctant to compromise for fear of losing access to a precious and critical commodity. However, he notes that estimates
as to the actual existence of oil reserves are often inexact and even if present,
unlikely to solve a countrys immediate and emerging energy needs. Thus, he
believes it is necessary for States to reappraise the oil factor in these maritime
boundary disputes.
In a complementary discussion, Oil and Water: Assessing the Link between
Maritime Boundary Delimitation and Hydrocarbon Resources provided at Chapter 5, Dr John W. Donaldson discusses the relative impact of offshore hydrocarbon activity as a motivating factor in the conclusion of agreements to delimit
maritime boundaries. He seeks to provide a quantitative measure of the link
between hydrocarbon activities and agreements between States to delimit maritime border. After identifying the challenges in attempting to assess maritime
delimitation agreements, Dr Donaldson observes that since 1980, there has been
a gradual decline in the conclusion of these agreements per year. While he notes
that there seems to be no particular reason for the decline in the frequency
of concluded delimitation agreements, he examines in particular the impact of
offshore hydrocarbon exploration on the motivation of States to conclude such
agreements. He demonstrates there has been an increase in the influence of
hydrocarbon resources that suggests that States are paying more attention to the
presence of these resources in maritime areas which in turn encourages to conclude maritime delimitation agreements. While this analysis shows that States
are apparently focused on the issue of hydrocarbon resources, Dr Donaldson
points out that other important issues related to delimitation such as fisheries
and other ocean management matters are being neglected which should cause
States concern and lead them towards considering a more holistic approach.
His Excellency Damir Arnaut provides an analysis of the maritime delimitation between Bosnia and Herzegovina and Croatia in Chapter 6, Adriatic Blues:
Delimiting the former Yugoslavias Final Frontier. He traces efforts to delimit
maritime boundaries among the former Yugoslav States, examining the notable
difficulties that these maritime delimitation in the Adriatic Sea have given rise
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to from the dissolution of the former Yugoslavia to more recent attempts to fashion agreements amongst the successor States. He notes that while the successor
republics succeeded to the agreements Yugoslavia had with Italy, there has been
very little progress on the maritime delimitation between Croatia and the littoral
States of Bosnia and Herzegovina, Montenegro and Slovenia. He further observes
that while Croatias maritime boundary issue with Bosnia and Herzegovina was
not initially problematic, in contrast with the formation of Croatias boundaries
with Slovenia and Montenegro, as a comprehensive border treaty was signed in
1999, the agreement has yet to be ratified by either State. He explains that the
difficulty in ratification relates to an internal dispute in Bosnia and Herzegovina
from the Republika Srpska and Croatias questions concerning the sovereignty
of two islands and the tip around Bosnia and Herzegovinas only outlet to the
Adriatic Sea. Ambassador Arnaut discounts any potential Croatian claims noting
that Croatia has not officially made any claims to these areas and that references
to history, particularly in terms of how the Ottoman Empire treated these territories, have no relevance to the international legal dimensions of this issue at
the time when the countries involved became independent States. After discussing the difficulties of potential Croatian arguments in favour sovereignty and the
right of innocent passage in favour of Bosnia and Herzegovina, he concludes by
setting forth a list of points for Bosnia and Herzegovina to progress maritime
delimitation with Croatia.
In Chapter 7, Youri van Logchem discusses The Scope for Unilateralism in
Disputed Maritime Areas. He observes that in maritime areas that are disputed
between States, there are numerous disputes that have arisen over actions taken
by a State in these areas. He notes that State practice demonstrates that unilateral
measures are taken in response to such actions with these disputed maritime
areas. The author seeks to clarify the scope of this unilateralism and assess the
international legality of these unilateral measures along with the actions that
are taken in response by a neighbouring State or a third State within an area
of overlapping maritime claims. Van Logchem notes that under paragraph 3 of
articles 74 and 83, neighbouring coastal States have the obligation to make efforts
to enter into provisional arrangements and to not stand in the way of reaching
a final agreement on delimitation. Particularly pertinent to these issues is his
discussion of the application of this standard in the Guyana/Suriname Award of
2007 and the introduction of the standard of permanent physical impact on the
marine environment from the Award. He concludes that the standard of permanent physical impact on the marine environment, while placing important
limitations on the conduct of unilateral State action in disputed maritime areas,
there is a fair amount of uncertainty in the future application of the standard for
future cases.
In Chapter 8, Sovereignty as an Obstacle to Effective Oceans Governance and
Maritime Boundary MakingThe Case of the South China Sea, Sam Bateman
addresses the problem of overlapping maritime claims in the South China Sea. He
introduction
argues that a conventional system of straight line maritime boundaries would be
impossible to attain given the complex geography of the South China Sea such
that the attention given to sovereignty is misplaced. He notes that under the
United Nations Convention on the Law of the Sea, due to the extended maritime
jurisdiction provided for in the Convention, difficulties have arisen that have
caused the pace of maritime delimitation to slow down and created complexities establishing maritime boundaries. Given the geography of and the offshore
features in the South China Sea, these problems are apparent. Dr Bateman suggests that interested countries that border the South China Sea should reassess
their approach to maritime delimitation from that of a focus on sovereignty and
borders to one of cooperation and management. He notes that there is presently
no effective regime in the South China Sea for cooperative marine management
and good order at sea and concludes that this approach, that is consistent with
the Convention and the spirit of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, is the most effective means to deal with
the issues in the area.
Professor Guifang Xue examines the underlying issues that have complicated
and intensified the dispute in the South China Sea in The South China Sea:
Competing Claims and Conflict Situations in Chapter 9. She observes that the
South China Sea is resource rich in both fisheries and, potentially, oil and gas.
Consequently, this has contributed to intensified competition for these resources
and coupled with overlapping territorial claims, there have been violent clashes
in these areas. She outlines the recent history of the disputes between Brunei,
China, Malaysia, the Philippines, and Vietnam and the complication presented by
the impact of United States involvement in South China Sea issues. Professor Xue
goes on to discuss Chinas U-shaped line claim in the South China Sea explaining the history of Chinas claim in the region and indicating that China should
clarify its position in the South China Sea by giving notice to the international
community about its stance on maritime delimitation in the area. She asserts that
China should do this in a manner consistent with the United Nations Convention
on the Law of the Sea, but she understands that the terms of the Convention will
not quickly resolve all of the problems associated with conflicting claims in the
South China Sea.
Continuing a discussion regarding the issues in the South China Sea, Tran
Truong Thuy presents his analysis in Chapter 10 entitled Politics, International
Law and the Dynamics of Recent Developments in the South China Sea. As the
most powerful claimant State, he provides a summary of Chinas position with
regard to the South China Sea noting that while China and ASEAN agreed to the
Declaration on the Conduct of Parties in the South China Sea, China has more
recently taken a more assertive stance on the issue. In response to Chinas assertiveness, ASEAN and in particular, the Philippines and Vietnam, have utilised the
United Convention on the Law of the Sea to defend their maritime claims and notes
that ASEAN claimants have attempted to distinguish their exclusive economic
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zones and continental shelves measured from the mainland and disputed areas in
the South China Sea. They have also interpreted article 121 of the Convention (the
regime of islands) in a strict manner to minimise the geographic scope of the dispute. After describing recent developments between China and the other claimants, he looks at the potential for a possible settlement by focusing his analysis of
the Declaration and the potential implementation of a Code of Conduct.
Professor Zhang Xinjun examines the notion of dispute in the context of international law in Chapter 11 in The Notion of Dispute in the Contemporary
International Legal Order: Qualification and Evidence. He begins with a discussion
of how a dispute is defined and perceived. While there is no definition in the UN
Charter, he observes that disputes can be viewed in both procedural and substantive terms. In his opinion, the procedural perspective of disputes is not sufficient
to understand international legal disputes, but rather, he believes a substantive
understanding of disputes would be helpful if the conditions and evidence to identify what a dispute is could be elucidated. To do so, he looks to the Charter and
international case law and concludes that one needs to differentiate between law
and fact when examining the existence of a dispute of an international nature.
In Chapter 12, Perspectives on East China Sea Maritime Disputes: Issues
and Context, Suk-Kyoon Kim provides his assessment of the conflict between
China and Japan in the East China Sea. Beginning with a treatment of competing
claims by both countries over the Senkaku Islands, he describes the positions
of China, Japan, and Korea on the issue of maritime delimitation noting that both
China and Korea use the natural prolongation principles while Japan claims the
median line with respect to both countries. He explores the relationship between
continental shelf and exclusive economic zone claims where the width of the
East China Sea is less than 400 nautical miles and further notes that China and
Japan disagree as to what effect should be given to the Senkaku Islands and the
Okinawa Trough for maritime zones. He points out that there must be a consensus over the non-use of the Senkaku Islands for the EEZ and continental shelf;
over a unified boundary for the EEZ and continental shelf; and agreement over
joint development of marine resources before a maritime delimitation agreement
is possible between China and Japan in the East China Sea. Though both China
and Japan have made progress in the drafting of the Principled Consensus on
the East China Sea Issue, he notes that more work is required before a complete
resolution is possible.
Tara Davenport follows with her own analysis of the dispute between China
and Japan in the East China Sea, with particular emphasis on issues of entitlement, with Chapter 13 entitled, The China-Japan Dispute Over Entitlement
in the East China Sea: Legal Issues and Prospects for Resolution. After outlining
the maritime claims of both countries as well as the disputes between them, she
addresses the issues arising from Chinas assertion that it is entitled to continental shelf rights in the East China Sea in respect of seabed areas seawards of the
200 nautical mile limit of its EEZ. As a consequence of the geographical reality
introduction
that the East China Sea is less than 400 nautical miles broad, such continental
shelf areas which would constitute extended continental shelf areas for China,
are within 200 nautical miles of Japanese territories and thus fall within Japans
claimed EEZ. This problematic and contentious issue under international law
provides the central focus for her contribution. Key aspects of the relevant case
law are explored and contenting arguments as to the primacy of the EEZ over
the continental shelf or vice-versa are outlined and critiqued. The implications of
these debates for the delimitation of maritime boundaries in the East China Sea
are assessed and options for determining entitlement and resolving China and
Japans delimitation disputes in the East China Sea analysed.
In Chapter 14, Maritime Security in the post-9/11 World: A New Creeping Jurisdiction in the Law of the Sea? Stuart Kaye observes that there has been creeping
jurisdiction which describes the extension of State jurisdiction offshore reflected
in developments in the law of the sea. Given the security threats on the seas, he
considers whether there will be a further creeping jurisdiction in State efforts to
provide greater security and the implications of this jurisdiction creep. Professor
Kaye notes that the United Nations Convention on the Law of the Sea does not
significantly address security matters and where it does, it is dealt with in the
context of innocent passage. Historically, it was understood from the writings of
Hugo Grotius that States were unable to appropriate the oceans and that ships
from any part of the world may sail anywhere in the world. This is somewhat true
in the modern context as seen in the various conventions that concern law of the
sea matters. The United Nations Convention on the Law of the Sea provides for
high seas freedom of navigation but also in exclusive economic zones. Given the
state of the law of the sea, Professor Kaye examines the issue of military security
noting that the Convention does not directly deal with military activities such as
surveillance. His understanding is that while the Convention encourages peaceful
uses of the sea, it is a general law that must be considered in light of the specialised international rules that deal with the use of force. Given this context, he
then evaluates the Proliferation Security Initiative (PSI) that seeks to prevent the
spread of weapons of mass destruction at sea, land, and air and the problem of
environmental security. He identifies a number of issues such as the interdiction
of vessels and the conflicts and challenges that these activities pose under the
current law of the sea regime. He indicates that if countries continue to assert
security reasons in this area, this will likely result in a further creeping jurisdiction and an erosion of the freedom of navigation.
In Chapter 15, Professor Robert Beckman discusses Jurisdiction over Pirates
and Maritime Terrorists by examining the challenges posed by the threat of
maritime terrorism to the international legal regime that governs jurisdiction
over crimes at sea. He notes that on the high seas, there are exceptions to the
exclusive enforcement jurisdiction of the flag State when it comes to the boarding and arrest of pirate ships or the boarding of a ship with no nationality or the
same nationality of the warship if there are reasonable grounds to suspect that
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the ship that engaged in piracy, the slave trade, or unauthorised broadcasting or
exceptions established by treaty. He observes that this is also true in exclusive
economic zones where territorial jurisdiction does not apply, but that the standards of the high seas apply. He then examines the hijacking of the Achille Lauro
in 1985 and identifies a number of issues that were raised in light of the then
existing legal framework of the United Nations Convention on the Law of the Sea.
It was unclear whether hijacking could be considered piracy under the Convention. In response, the Convention for the Suppression of Unlawful Acts Against
the Safety of Maritime Navigation, 1988 (SUA Convention) was adopted to deal
with such actions. However, Professor Beckman notes that despite the characterisation of the SUA Convention as a terrorism convention, there are number of
challenges posed by piracy in Somali and Southeast Asia given that aspects still
governed by the United Nations Convention on the Law of the Sea. He goes on
to examine the additional efforts to combat threats on the seas such as the 2005
SUA Protocol and the Proliferation Security Initiative. He expresses the view that
while the existing framework is sufficient to deal with these new threats and challenges, the lack of political among States to ratify these conventions compromises
the effectiveness of the legal regime to deal with these problems.
In Chapter 16, Professor Seokwoo Lee and Young Kil Park provide their summary and assessment of Koreas first ever piracy trial in Koreas Trial of Somali
Pirates. This trial involved the prosecution of five Somali pirates that resulted
in significant prison terms with one of the pirates receiving a life sentence. The
pirates hijacked a Korean chemical tanker on the high seas near Oman which
resulted in a pursuit by the Korean navy. During the rescue operation that
ensued, the captain of the tanker was severely injured and the pirates were killed
or captured. The authors note that the Korean navy attempted to transfer the
captured pirates to countries in the region but were unable to do so and eventually sent the pirates to Busan where they were transferred to the Korean Coast
Guard and subsequently sent the Busan Supreme Prosecutors Office where they
were charged under Korean law. After a relatively swift trial, both the prosecutor
and the defence appealed the decision of the trial court. The Busan District High
Court affirmed the sentences that were given and remedied the application of
law by the trial court while the Korean Supreme Court rejected the appeals by
both parties and upheld the convictions and the sentences. The authors point
out that jurisdiction over the case was under domestic law that implemented the
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation. While in the authors assessment the trial of the Somali pirates was
fair, they note that a number of procedural problems need to be remedied in
order to deal with potential future cases involving pirates.
In Chapter 17, Irini Papanicolopulu follows with a discussion on the absence
of jurisdiction of States over persons in the United Nations Convention on the
Law of the Sea. In her chapter, A Missing Part of the Law of the Sea Convention: Addressing Issues of State Jurisdiction over Persons at Sea, she notes that
there are increasing numbers of persons on the seas. However, she observes that
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within the Convention there are no general principles and very few specific provisions that address the issue of jurisdiction over persons. Among the instances
where the Convention deals with jurisdiction, she divides her analysis into provisions where the Convention specifically provides for jurisdiction over persons;
provisions where jurisdiction is given over the vessel or structure on which the
person is located; and jurisdiction based on other rules along with identifying
limitations on the exercise of jurisdiction and addressing circumstances where
the Convention does not provide any guidance. Despite the gaps in the Convention in determining State jurisdiction, she concludes that it is usually possible to
identify the State or States that have jurisdiction over a person at sea either by the
Convention or other treaties, but in the context of rules that allocate authority
between States with respect to zones and activities at sea.
Quentin Hanich, in Chapter 18 addresses Distributing a Conservation Burden
across Multiple Jurisdictions: A Case Study of the Western and Central Pacific
Tuna Fisheries. In 2004, the countries of the Western and Central Pacific region
brought about the establishment of the Western and Central Pacific Fisheries
Commission. He notes that the Commission faces significant challenges in dealing with overfishing of certain fish species in that it must create, negotiate, and
put into place conservation and management measures that affect multiple jurisdictions and impact a diverse range of interests. In the context of tuna fisheries,
the interests he examines include coastal and flag State interests, development,
food security and artisanal fishing, and market interests. Dr Hanich points out
that there are 14 core States that control access to the tropical tuna fisheries in
the region and have power to manage the interests involved. While these have a
strong interest in maintaining the long-term sustainability of the fisheries in the
region, from his perspective, there is no straightforward interest among these
core States to resolve the overfishing of bigeye tuna. Given this difficulty and
the likely difficulty for the Commission to develop and negotiate a response, he
believes a new discussion is needed to allow for the development of a new conceptual framework that takes into account these divergent interests while allowing measures to reduce fishing mortality.
In Chapter 19, In Combating and Deterring IUU Fishing: Do RFMOs Work?
Kuan-Hsiung Wang examines the effectiveness of regional fisheries management
organizations in thwarting illegal, unreported and unregulated fishing activities.
He observes that illegal fishing is a multibillion dollar industry that is spurred
on by a lack of flag State control which brings into focus the potential for these
organisations to deal with this problem. He notes that these organisations were
created some time ago and were not instituted to deal with illegal fishing.
Nevertheless, he indicates that many of these organisations had mandates to
take measures regarding management and conservation and thus in a position
to combat and deter illegal fishing. Professor Wang then looks to the efforts made
by regional fisheries management organisations in the context of the international
legal duty to cooperate and practices of port State measures to prevent illegal
fishing. However, he concludes that these organisations do not have clear roles
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in dealing with illegal fishing activities and identifies areas to strengthen these
organisations such as the needs to support developing countries, capacity building for enforcement, and the need for a stronger legally binding agreement.
In Chapter 20, Professor Anastasia Telesetsky deals with Good Faith Obligations to Protect and Preserve the Marine Environment: A Proposal on Uniform
High Seas Fisheries Management. Professor Telesetsky points out that despite
the fact that 166 States are parties to the United Nations Convention on the Law
of the Sea and important non-party States agree that the provisions of the Convention are customary international law, she observes that many of these States
have failed to make a good faith effort to fulfil their obligations as provided for
in Article300 which requires the conservation of living marine resources on the
high seas and the duty to protect the integrity of the high seas marine environment. She discusses the duty of good faith in this context by looking at the duty
in public international law and its application specifically in the Convention. She
notes that the good faith required in Article 300 imposes affirmative actions by
States whose vessels fish on the high seas and goes on to examine the factors
that may lead to a failure to meet this obligation of good faith. It is suggested that
these factors include the lack of membership and participation in a regional
fisheries management organisations, along with the tepid participation of those
States which are members of these organisations and the failure to promulgate
domestic laws that implement the Convention. From her perspective, the States
that are identified as experiencing these factors can be viewed as not meeting
their obligations of good faith. Professor Telesetsky opines that while there is
no single fix for this problem, she suggests that there is a need to invest in the
mechanisms that are needed for the accurate exchange of fishery information.
Emily Gardner discusses The Legacy and Fate of Bluefin Tuna under International Law in Chapter 21. She observes that there has been a serious depletion
of bluefin tuna stocks due in large part to high demand in Japan. Though there
are efforts to raise bluefin tuna in various aquaculture environments, there are
serious issues and problems with the different methods of producing marketable bluefin tuna ranging from environmental concerns to the impact on genetic
contamination. Given the problematic state of raising bluefin in aquaculture, she
then turns to examine the existing international legal framework for wild-caught
bluefin tuna fisheries by looking at the United Nations Convention on the Law
of the Sea, the 1995 Straddling and Highly Migratory Fish Stocks Agreement,
Convention on Biological Diversity, Convention on International Trade in Endangered Species of Wild Fauna and Flora, and the FAO Code of Conduct for Responsible Fisheries. She also attempts to determine whether these treaties have any
impact on the management of aquaculture. While the different forms of bluefin
tuna aquaculture have addressed some of the issues regarding the depletion of
fish stocks, there are serious issues that have not been addressed through existing
conventions. It is clear to the author that changes are urgently needed to deal
with these issues related to aquaculture along with consumer education regarding the unique attributes of bluefin tunas as a wildlife species.
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In Chapter 22, Marcus Haward looks at the challenges to governance that
arise from climate change in the Southern Ocean with a focus on issues related
to jurisdiction and the competence of international instruments and regimes
in The Southern Ocean, Climate Change and Ocean Governance. Professor
Haward explains that there have been significant alterations to the chemistry,
sea ice, and ecosystem of the Southern Ocean due to climate change. Given these
changes to the biophysical and ecological systems, he notes that issues arise as to
whether the existing legal systems can deal with these changes along with questions about governance given the increasing intersection of various legal regimes.
After providing a description of the various legal instruments that cover the
Southern Ocean, Professor Haward observes that there are issues of overlap and
complementarity that pose challenges for governance and have brought about
questions of their effectiveness. He explains that climate change and its impacts
pose unique challenges particularly on issues related to maritime jurisdiction and
coverage of regimes. Thus, he identifies the need for governance arrangements
in the Southern Ocean to address climate change in shaping future maritime
jurisdiction.
In Chapter 23, Natalie Klein and Tim Stephens examine the International
Court of Justice case involving Australia and Japan, Whaling in the Antarctic, and
the role of international litigation in situations involving activities that occur
beyond national jurisdictions in Whaling in the Antarctic: Protecting Rights
in Areas beyond National Jurisdiction through International Litigation. They
note that the Whaling in the Antarctic case involves the application of the International Convention for the Regulation of Whaling and its accompanying Schedule.
The basis of Australias claim against Japan is that two programs administered by
Japan that allow Japanese fishermen to hunt and harvest whales are in violation
of the Convention. They note that the central point of Australias claim is that
Japan is conducting illegal commercial whaling as opposed to scientific whaling.
They authors go on to discuss Australias standing to bring suit against Japan
and the Courts jurisprudence on the standing issue. They conclude that Australia
could be considered an injured party, and even if it were not an injured party,
it should be able to invoke Japanese responsibility under the Convention, thus
arguing that Australia ultimately has standing to bring such a claim. The authors
then go on to discuss lessons from recent developments in litigating disputes
concerning activities in areas beyond national jurisdiction. They note the need
for reform to allow litigation by non-State actors such as individuals and nongovernmental organisations and underline the importance of the Whaling in the
Antarctic case for the implications the decision will have on practical operation
of international law to areas beyond national jurisdiction.
In Chapter 24, Dr. Ben Milligan follows with a discussion of Marine Protected
Areas in Antarctic Waters: A Review of Policy Options in the Context of International Law. He observes that the ecosystem south of the Antarctic convergence,
despite the relatively low level of human activity, are experiencing significant
stress. Given these circumstances, there have been efforts to establish marine
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protected areas in the region. He notes that the term marine protected areas
refers to a wide variety of spatial management measures that are applied by
national governments and international organisations and that there are a variety of international legal instruments that manage the waters located south of the
Antarctic convergence and provide for different types of marine protected areas.
They include the United Nations Convention on the Law of the Sea, CAMLR Convention; Madrid Protocol; International Convention for the Regulation of Whaling; International Convention for the Prevention of Pollution from Ships; and
International Convention for the Safety of Life at Sea. He analyses the legal provisions from these conventions to determine the type of marine protected areas
that are permissible in Antarctic waters and the potential policy options available
to protect the region.
Canadas claims with respect to the Northwest Passage are the focus of Professor Suzanne Lalondes contribution in Chapter 25 Evaluating Canadas Position
on the Northwest Passage in Light of Two Possible Sources of International Protection. Professor Lalonde highlights how Canadas view that it has the right to
control navigation through the Northwest Passage has been subject to increasing
challenge as a consequence of enhanced access to the Arctic region and rising
shipping activities in high latitude waters, primarily as a result of the significant
melting of Arctic sea ice in recent summers. Two key international tools that
potentially provide support for the Canadian position are critiquedthe Arctic
exception offered by Article 234 of the United Nations Convention on the Law
of the Sea, and the possibility of designating the Northwest Passage as a particularly sensitive sea area or PSSA. Professor Lalonde highlights the merits of these
potential arguments in favour of Canadas position with its core objective of safeguarding the Arctic marine environment but also observes that the narrow interpretations and negative reactions of certain States to the application of the two
sources of support highlighted must be a red flag for Canada in this context.
In Chapter 26, Tavis Potts, Branka Valcic, JoLynn Caroll and Michael Caroll
discuss The Practicalities of the Ecosystem Approach in the Barents Sea: The
ECOBAR Project. The authors note that in the Barents Sea, there are serious
concerns about the health of the marine environment due to increasing resource
extraction and that there have been efforts by Norway to address these concerns
towards an ecosystem approach. They explain that Benthic Indicators for Monitoring the Ecosystem of the Barents Sea (ECOBAR project) is an ecosystem approach
that focuses on the benthos, which they believe is the best habitat for assessing
impacts of most human activities in the marine environment and has been an
important component of many aquatic monitoring programs. After explaining
the impact of climate change on the quality of the marine environment in the
Barents Sea and the increasing amount of economic activity in the area, they discuss the ECOBAR project which is an effort to bring science into policy involving
scenario development and testing policy options to determine which changes in
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the marine environment were detected by the range of biodiversity, contaminants, and ecotoxicology indicators. They conclude that the ECOBAR project
and its approach offers an opportunity to bring scientific indicators to impact
the establishment of policies to improve monitoring of the benthic ecosystem
of the Barents Sea and ultimately the integrity of the ecosystem itself.
In Chapter 27, Sea Level Rise and the Law of the Sea: How Can the Affected
States Be Better Protected? Professor Moritaka Hayashi explores the legal measures available to States that would be adversely impacted by rising sea levels
cause by global warming. After outlining the current legal regime under the
United Nations Convention on the Law of the Sea in relation to baselines and rising sea levels, Professor Hayashi discusses the impact of this rise in sea levels on
small islands and small island States and considers the legal implications of four
scenarios such as the total submergence of an island or rock belonging to a State;
near total submergence of an island belonging to a State; total submergence of all
the islands constituting an island State; and the near submergence of an island
State. He notes that coastal States and small island States would suffer adverse
effects given the current rules that are based on ambulatory baselines and which
were not developed with the problem of rising sea levels in mind. He then goes
on to discuss the different procedures to adopt new rules to the Convention in
consideration of these conditions and argues that these new rules should be
adopted that would enable States vulnerable to rising sea levels to retain their
exclusive economic zones, territorial sea, and continental shelf.
In Chapter 28, Seong Wook Park and Charity M. Lee discuss Ocean Energy
Development in Response to the Convention on Climate Change: The Case of
Korea. They note that Korea is pursuing a national policy of Green Growth in
which the environment and development are brought together to bring about
synergies. It is in this context that climate change is addressed as new and renewable energy is deemed to be a critical component in the reduction of greenhouse
gas emissions. They focus on Koreas specific response to climate change and
international agreements that address the problem while examining the domestic legal framework for the promotion of new and renewable energy. They also
look to national policies that provide for targets for the use of new and renewable
energy and the efforts being made to implement those policies.
In Chapter 29, Exploiting the Oceans for Climate Change Mitigation: Case
Study on Ocean Fertilisation, Karen N. Scott examines whether the contemporary governance of oceans is able to respond to the calls for ocean exploitation
for the purpose of climate change mitigation purposes. She observes that ocean
fertilisation, a process to increase the plankton biomass in the ocean, in order
to assist the transfer of carbon dioxide from the surface to the ocean depths, is
gaining attention as a means to combat climate change. The process involves the
introduction of fertilisation agents into the ocean which Professor Scott notes
the governance of which falls under the United Nations Convention on the Law
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of the Sea and the evolving regulatory framework under the Convention on the
Prevention of Marine Pollution by Dumping of Wastes and other Matter, the Protocol to the London Dumping Convention and general principles of international
environmental law. She explores how ocean fertilisation is regulated by these
legal instruments and identifies the limitations presented by each noting that
ocean fertilisation is qualitatively different from other climate change mitigation
methods such as emissions reductions or geological carbon dioxide sequestration
which presents a challenge to the development of a regulatory regime. Professor
Scott goes forward to discuss the role the precautionary approach should play in
managing ocean fertilisation activities and examines the issue of what type of
regulatory response should be applied when dealing with these activities.
Chapter 30 is by Jenny Grote Stoutenburg entitled Through the Back Door:
The Limits of the UN Law of the Seas Usefulness as a Tool to Combat Climate
Change. She examines whether the Convention can be utilised as a means to
compel States to reduce emissions in line with the obligation to prevent marine
pollution noting the benefit of such an approach given the compulsory dispute
settlement mechanism which might be used to force States to adopt emission
reduction measures. She identifies several marine pollution provisions in the Convention that provide a legal basis to deal with climate change and increased CO2
concentrations as a justiciable matter. She notes that the requirement of dispute
settlement in the Convention which calls on the State parties to submit disputes
to compulsory settlement, failing negotiation or conciliation, to the International
Tribunal for the Law of the Sea (ITLOS), the ICJ, or an arbitral tribunal, depending on the prior choice of the parties, with arbitration as the default mechanism.
However, she points out that there are a number of obstacles in the application
of the Conventions dispute settlement requirements including the uncertainty
in the application of different treaties against States such as the United States
that have the largest emissions rates along with questions regarding the competence of a tribunal brought under the Convention to deal with such issues.
She also observes that the Conventions provisions may have been concretized
or even supplanted by subsequent legal standards on climate change and adds
that establishing State responsibility for climate change under the no harm rule
would be challenging.
Ronn Long in Chapter 31 looks at the Principles and Normative Trends in EU
Ocean Governance by focusing on the legal and policy considerations motivating
this shift. Professor Long notes that changes in regulation of maritime activities
in the EU is being orchestrated under the framework of the EUs Integrated Maritime Policy which is aimed at producing a more unified and efficient approach
to ocean governance by the EU and its member States. He identifies the central
focus of the Policy is on economic uses of the maritime environment, but he
notes that this is conditioned by oblique references to the requirement of sustainable use or in some instances balanced by reference to the need for responsible stewardship of the marine environment. Though he observes that the Policy
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lacks an express legal basis in the EU treaties, this does not mean that European
institutions are unable to take the appropriate legislative measure in the field of
maritime affairs under treaty provisions that are applicable to various policies. He
does acknowledge that the absence of a clear legal basis for the Policy means a
law-making process that is slow and requires a significant amount of administrative coordination internally. He then explores the normative influences on the
Policy including the principle of sustainable development; legal requirement to
integrate environmental considerations into the Policy; the precautionary principle; and the ecosystem approach. He believes that normative impacts are evident in that the Policy appears to be moving steadily towards the application of
new normative approaches to ocean governance consistent with objectives and
principles of the United Nations Convention on the Law of the Sea.
In Chapter 32, David Freestone looks at the current limitations of the oceans
governance regime with a focus on the gaps in regulations and governance in
Governing the Blue: Governance of Areas beyond National Jurisdiction in the
Twenty-First Century. He notes that the impact of human activity in areas beyond
national jurisdiction has increased and that the current state of the UN Convention on the Law of the Sea and the legal regime it has created has not been able to
address these new developments. He observes that given the sustained demand
for fish, fishing activities have entered new marine environments such as deeper
waters along with greater marine pollution, and the effects of climate change on
melting glaciers and ice-caps and the its consequences for ocean acidity levels.
Professor Freestone points out that in areas beyond national jurisdiction there is
a gap in the law of the sea regime in dealing with these issues. While there
are a number of treaty regimes that pertain to various areas such as maritime
transportation and fisheries along with regional environmental regimes, there is
a lack of an adequate comprehensive framework for governance of the high seas.
He then focuses on the activities of the UN General Assembly in the adoption of
resolutions addressing the problem of destructive fishing practices and biodiversity. In that regard, he examines the Convention on Biodiversity and efforts being
made by the Secretariat and workshops to further its purposes, but he notes that
there serious limitation as regional fisheries management organizations are not
adequately situated to improve biodiversity. Professor Freestone, who also serves
as Executive Director of the Sargasso Sea Alliance, then uses the situation in the
Sargasso Sea as an example. He sees the need for a new legal instrument that will
be able to bring together the issues and problems involving gaps in the present
regulatory scheme to provide an overarching system of governance to law of the
sea issues.
In Chapter 33, Beyond Delimitation: Interaction between the Outer Continental Shelf and High Seas Regimes Joanna Mossop examines the application of
Article 78(2) of the United Nations Convention on the Law of the Sea which some
have interpreted as permitting some interference with freedom on the high seas
to protect the interest of coastal States interests in resources on the sea floor. She
18
clive schofield et al.
looks at the development of the continental shelf regime from the 1958 Geneva
Convention on the Continental Shelf to the present UN Convention noting that
there is an entitlement to sovereign rights to resources of the continental shelf
beyond 200 nautical miles where there is an outer continental shelf. She points
out that in this area, there are a number of activities including the exploitation of
mineral and biological resources that, when considered with coastal State interests such as conservation and scientific and bioprospecting interests, will tend to
favour protection of these resources requiring a balancing of these activities and
interests. She observes that the Convention is largely silent on how to balance
these potentially competing interests noting that the only applicable provision
is Article 78. Article 78 itself does not provide clear guidance and as a result, she
describes a set of guidelines to help in the balancing of these various interests
which includes examining the likelihood of interference with shelf resources;
looking at the level of harm to the shelf resources; evaluating the relative importance of the interests; seeing whether the proposed measure minimally interferes
with high seas rights; and determining whether guidelines exist from international or regional institutions and soft law instruments.
David Leary and S. Kim Juniper in Chapter 34 look at the issue of marine genetic
resources and pose the question, Addressing the Marine Genetic Resources
Issue: Is the Debate Heading in the Wrong Direction? They note that issue of
marine genetic resources that are harvested beyond areas of national jurisdiction was the focus of an Ad Hoc Open Informal Working Group established by
the United Nations General Assembly. The efforts of the Working Group culminated in a recommendation to the General Assembly that a process be initiated
for the development of a potential multilateral agreement or protocol under the
United Nations Convention on the Law of the Sea. They seek to challenge some
of the underlying assumptions that undergird the Working Group process and
the academic discourse on marine genetic resources in areas beyond national
jurisdiction. They argue that while there has been talk about the great potential
in the field of biotechnology in the discovery and use from marine biodiversity
and its commercialisation, they determine that there is little evidence of a systematic commercial-scale development of deep sea genetic resources. Moreover,
they note that there is no clear or reliable data as to its commercial value. Additionally, there have been significant developments in synthetic biology that may
make marine biodiversity less important in the future. They note that in the context of the Working Group, the debate over marine genetic resources focused
on whether it fell within the definition of the common heritage of mankind as
provided for in the Convention. They express their concern that there is a lack
of knowledge about marine genetic resources and that before consideration of
potential options for regulations of these resources begins in earnest, there is
a need to know whether there is really something to regulate. They believe that a
failure to fully understand the nature and actual promise of these resources will
introduction
19
result in wasted time engaged in diplomatic negotiations and may slow the pace
of scientific discovery.
The conference attracted 95 participants from 25 countries. Participants
included a range of high-level officialsincluding the Ambassador of the United
States to Australia, Jeff Bleich (who gave provided a luncheon address); the former Indonesian Ambassador (to Canada and Germany and for the Law of the
Sea), Hasjim Djalal; the Ambassador of Bosnia and Herzegovina to Australia,
Damir Arnaut (see Chapter 6); and Judge Rdiger Wolfrum from Germany of
the United Nations International Tribunal for the Law of the Sea (ITLOS). There
was also strong interest in Australian government circles in particular with
representatives attending from: Attorney-Generals Department, Australian
Hydrographic Service, Royal Australian Navy (RAN), Department of Defence,
Department of Agriculture, Fisheries and Forestry (DAFF), Department of
Foreign Affairs and Trade (DFAT), Geoscience Australia, Sea Power Centre
Australia, Royal Australian Navy (RAN).
The editors and conference organisers express their most sincere gratitude and
appreciation to all participants in the Wollongong meeting. The loss of Professor
Van Dyke had a major impact on all concerned and the editors wish to thank
all who were present most profoundly for the phenomenal support and warm
fellowship that distinguished the gathering in the immediate aftermath of this
tragic event.
In terms of the organisation of the meeting itself, special recognition is due
to Mrs Myree Mitchell of the Australian National Centre for Ocean Resources
and Security (ANCORS) who was fundamental to the planning and execution
of the conference under, at times, very trying and stressful circumstances. The
sterling efforts of the supporting conference administration team from ANCORS,
Dr Lowell Bautista, Dr Mary Ann Palma-Robles, Carole Durussel, Pakjuta Khemakorn and Candice Visser were similarly essential to the smooth running of
the event and their efforts are warmly appreciated and recognised. In terms of the
editing of this volume, the editors also extend their thanks to Dr Anthony Morrison for his valued contributions in terms of detailed copy-editing.
The support of senior figures within the University of Wollongong was also
deeply appreciated. These include, Professor Martin Tsamenyi, Director of ANCORS,
Professors Luke McNamara and Warwick Gullet the past and present Deans of Law
at the University of Wollongong, Professor Judy Raper, Deputy Vice Chancellor
(Research) at the University of Wollongong and Senior Deputy Vice Chancellor Professor John Patterson. The conference and the volume arising from it represent part
of the University of Wollongongs Global Challenge relating to Sustaining Coastal
and Marine Zones.
The editors and conference organisers also extend their sincere gratitude and
appreciation to the following institutions and organisations without whose support the conference and this volume would not have been possible. We were
extremely fortunate in our sponsors who included:
20
clive schofield et al.
Co-organising institutions:
Australian National Centre for Ocean Resources and Security (ANCORS)
The Law of the Sea Institute, School of Law, University of California Berkeley
Principal sponsor:
The Korea Institute of Ocean Science and Technology (KIOST) (formerly, the
Korea Ocean Research & Development Institute (KORDI))
Cooperating sponsors:
Academia Sinica, Taipei (Taiwan)
The Sea Lanes of Communication (SLOC) Study Group in Korea
The Faculty of Law of the University of Wollongong
The University of Wollongong
A Jurisprudence of Pragmatic Altruism:
Jon Van Dykes Legacy to Legal Scholarship
Harry N. Scheiber*
Writing of a senior colleague in international law whom he greatly admired, Jon
Van Dyke referred to him as a dreamerbut a dreamer many of [whose] dreams
have come true.1 It would be impossible to conjure up a better description of
Jon himself. In a brilliant career of teaching, research, and activism, he made
an enormous number of lasting contributions to the advancement of both legal
scholarship and the public weal. While the sheer volume of his writings lends
him special distinction among his contemporaries in his several research fields,
it is more important that we remember what made him nearly unique: it was the
extraordinary range and scope of his research accomplishments. In any assessment of his legacy to legal scholarship, as I attempt in this study, one must get
beyond these quantitative and wingspan aspects of his contributions, however,
and remember that the transcendent characteristic of his work was its scholarly excellence. Jons legacy to legal scholarsor, more accurately, his several
legaciesconsists of writings that will long stand in the literature as enduring
contributions to both local and global discourses, speaking to key issues of law,
policy, and ethics.
* Riesenfeld Chair Professor of Law and History, Emeritus; Director, Institute for Legal
Research; Director, Law of the Sea Institute, School of Law, UC Berkeley. M.A., Ph.D.
Cornell, J.S.D.(h.c.), Uppsala University, Sweden. Fellow, American Academy of Arts and
Sciences. Honorary Life Fellow (and former president), American Society for Legal History. This paper was originally published in Volume 35 of the University of Hawaii Law
Review (2013) and is reproduced by kind permission of the author and editors of that
journal.
1 Jon M. Van Dyke, Louis B. Sohn and the Settlement of Ocean Disputes, (20002001) 33
George Washington International Law Review: 31, 32.
22
harry n. scheiber
The Writings
A recapitulation of the range and scope of subject matter in Jons corpus of work
can serve as our starting point. Prominent among the topical areas in which he
wrote was the jurisprudence of international law, and especially subjects within
the broad spectrum of topics under heading of Law of the Sea. He also devoted
a sustained effort over many years to the analysis and advancement of human
rights law, including especially scholarship on (and litigation of) the rights of
indigenous peoples. Among his most widely cited writings is a large set of important works relating to topics in state, national and international environmental
law. In addition, he produced important analyses of contemporary policy innovations in fisheries management law and implementation, including whaling
regulation and the special legal issues involved in the international law of highly
migratory species. His contributions and scholarly style in his ocean law studies
will be treated at length below, but it needs to be noted here that he was especially influential in his roles as an expositor and champion of the precautionary
principle, and as an authoritative commentator on both marine boundary delimitation and East Asian ocean issues.
In fact, an important regional emphasis is found throughout much of Jons
career in research. In articles, chapters and books he addressed the legal and
policy questions posed by the difficult, and often-tragic, resource-use challenges
and environmental conservation issues specific to the vast Pacific Ocean areaa
region where he travelled extensively to the small island nations that he came to
know so well. Also specific to the Pacific area were his studies of maritime and
security conflicts in the South China Sea. Law and society of Korea, and also that
countrys international maritime relations, provided the focus of many of his later
writings. He visited Korea more than forty times, and he formed close academic
connections there, especially with Inha University-Incheon.
Special note must be taken of Jons exceptional expertise in the complex law
of maritime boundaries. He concentrated much of his attention on international
law respecting jurisdiction and navigation in straits; and he gave much study
to the law of islands (including the many rocks spuriously claimed as islands
qualified to advance claims to a 200 nautical mile EEZ, a focus of some intensive
debates in the literature). Once he had taken up residence and embarked on new
lines of work in Hawaii, he began on a parallel career of research, litigation, and
public advocacy on constitutional and environmental issues in Hawaii state law.
His monumental book on the Hawaii Crown Lands is only one product of his
devotion to protection and advancement of native rights, but it also stands as a
work of special authoritativeness in the historical literature of Americas record
in the Pacific.2
2 Jon M. Van Dyke, Who Owns the Crown Lands of Hawaii, (Honolulu: University of Hawaii
Press, 2008). It is beyond the scope of the present Article to provide a suitable appreciation
a jurisprudence of pragmatic altruism
23
Jons commitment to all these studies was sustained over many years. It seems
as though he never entirely dropped a problem or situation that he found interesting. Thus, typically he returned at varied intervals (ranging from a few weeks
to a decade or more) to write yet another essay reconsidering or sharpening earlier insights, or else to put together a new monographic article analysing a newly
emergent problemoften ingeniously identifying a new opening that he used to
champion what he felt would be a useful legal or policy innovation.3
The sheer volume of his scholarly worksome 120 articles and chapters, in
addition to his several bookswas produced while Jon meanwhile was pursuing often-arduous litigation, and often was playing the role of leading voice and
organising genius in numerous public causes. He did so sometimes on his own
but more often in partnership with his wife, Sherry Broder, in the academic, judicial, and public arenas of environmental law, civil liberties, native rights, and
governmental reform. Jon was also a dedicated citizen of his university. He was
revered as a professor at Hastings College of the Law and later during his long
career at the William S. Richardson School of Law. For his part he rendered distinguished service to the Richardson School as faculty leader, institution-builder,
administrator, and liaison with the alumni, the Hawaii bar, and, more generally,
the citizenry and governmental institutions of Hawaii.4
He was also a stalwart in the leadership group of the Law of the Sea Institute during the long period when the Institute was based at his own university
in Hawaii. He never flagged, however, in his devotion to the Institute after the
organisations headquarters was moved in 2002 to Berkeley and was reorganised
as a unit of the UC Berkeley School of Law. My co-director of the Institute, Professor David Caron, and I could always rely on Jons readiness to offer his time,
effort, and wise counsel. He also contributed from several of his research projects
to every one of our publications in the last decade, and in addition he co-edited
two of the books in the Institutes ocean law series.5
and analysis of all his work relating to Hawaii law, culture, and environment; this aspect
of his career is represented in the bibliography of his writings available in this symposium issue. See The Scholarship of Jon M. Van Dyke: A Bibliography, (2013) 35 University of Hawaii Law Review. See especially his articles cited in note 48 infra.
3 His practice of revisiting highly diverse themes, for example, the rights of students in
public schools, nuclear activities regulation, or South China Sea issues, is evident in the
bibliography of his writings, cited in previous note.
4 Many of Van Dykes contributions to public life and to important causes in state and
federal litigation were highlighted in some of the many tributes that were posted on
a memorial website just after his unexpected death in November 2011; the site is currently available at http://www.surveymonkey.com/sr.aspx?sm=asSuIUcv3rOXkRMAxqh
TmkG8g8Wby2GtUSDsPDsETCQ_3dotos/InMemoriamJonVanDyke02.
5 One of these two books is Jon M. Van Dyke and Seoung-Yong Hong (eds.), Maritime
Boundary Disputes, Settlement Processes, and the Law of the Sea (Martinus Nijhoff,
Leiden/Boston, 2009); and the other is Jon M. Van Dyke, Sherry P. Broder, Seokwoo
Lee, Jin-Hyun Paik (eds.), Governing Ocean Resources (Leiden/Boston: Martinus Nijhoff,
24
harry n. scheiber
It needs to be mentioned too that Jon was one of the leaders in the 1990s in
the founding and the conference program of an active inter-university group of
scholars, the Ocean Governance Study Group. This group, after its initial meeting at the University of Hawaii, undertook the serious interdisciplinary study of
ocean and coastal policy issues while also sponsoring briefings on ocean issues
for legislators; the group also engaged in advocating both integrated coastal management and the cause of a comprehensive national oceans policy review.6
First Book: On U.S. War Strategy in Vietnam
Over the years, Jon won a position of great standing among ocean law expertsa
small, exceptionally congenial international cohort that is tightly interconnected
and linked by both international institutional and personal relationships. It was
in this context that I knew him best, both as colleague and great friend over more
than thirty years time. Therefore, it was an astonishing discovery for me when
I learnedindeed, only after commencing on work for the present Article
that Jons first research publication was not in the field of ocean law at all. It
was, rather, a book entitled North Vietnams Strategy for Survival.7 Published in
1972, this ambitious work was an expansion and revision of research that he had
embarked upon some five years earlier for a seminar paper in a Harvard Law
School class co-taught by Henry Kissinger (a figure, it is intriguing to contemplate, whose philosophy of international relations can be fairly described as an
almost perfect reverse image of Jons own!).8
The book provided a painstakingly detailed account of the massive American
air-bombing campaign against the North during the Vietnam Warand the failure of the bombing strategy to crush the resistance of the people and government
that were its target. Jons writing style here was in a pervasively low-key tone,
2013). For a full listing of the book series of the Law of the Sea Institute-UC Berkeley, see
the organisations website at http://www.law.berkeley.edu/5898.htm.
6 The other members of the organisations steering committee included the eminent marine policy scholars Robert Knecht and Biliana Cicin-Sain of the University
of Delaware; and also David D. Caron and the present writer, of UC Berkeley School of
Law. The groups agitation for a policy review was joined by many other marine policy groups, and it successfully contributed to action in Congress and a parallel effort
by the Pew Foundation, to produce their separate famous ocean reports. For the
Pew Oceans Commission 2003 report see, http://www.pewtrusts.org/our_work_detail
.aspx?id=130.; for the national commissions 2004 report see, http://govinfo.library.unt
.edu/oceancommission/.
7 Jon M. Van Dyke, North Vietnams Strategy for Survival (Palo Alto: Pacific Book Publishers, 1972).
8 Kissinger and his co-instructors chose the seminar paper for permanent deposit in the
Widener Library at Harvard, commending it for its distinction of scholarly research
(Information from Jon Van Dykes C.V. and bibliography of writings, unpublished manuscripts, and family papers on file with Attorney Sherry Broder, Honolulu).
a jurisprudence of pragmatic altruism
25
leaving the impression of determined, objective detachment. This, of course, is
in contrast to the passionate engagement that one might expect of Jon on such
a subject given the explicitand often passionately statedmoral conviction
(or, at minimum, the well delineated normative conclusions) found in most of
his writings. Instead, the book may be fairly described as a documentary work,
intensely factual in both content and presentation, falling more readily into the
category of national security study than a work on law, or on law and society.
Unrelenting, however, is the laying out of the bare facts (which Jon compiled
through research in depth, in widely diverse sources). Told in stunning detail
is a recapitulation of the bombing campaign in all its dimensions, vividly conveying how devastating it was in the damage that it wrought to life, property,
and environment: There were more than 100,000 bombing missions in a total of
350,000 sorties during February 1965 to November 1968, we are told; and a total
of nearly three million tons of explosives was rained down on North Vietnam,
with the attacks continuing until 1971 while their range was also expanded to hit
additional targets in Laos and Cambodia.9
The enormity of the particulars is difficult for one to absorb and fully comprehend: for example, a million pounds of explosives dropped in a single raid on a
September day in 1968. Jon reconstructs the story of the forced evacuation and
dispersal of North Vietnamese civilians in response to the bombing; and then the
reader is taken through the facts as to how dikes and irrigation complexes were
destroyed and agricultural capacity decimated, with inundation and destruction
of fields and villages.10 He also documents the record as to how North Vietnams
industrial plants were relocated and production levels astonishingly revived.11
The resistance mounted by North Vietnam in the face of this devastation, as
a resilient civilian population cooperated with the harsh strategies imposed by
their own determined government, is set forth in this book with great clarity. The
large story is framed against the essential irony of the American strategywhich
is that, despite the incessant bombing, and despite the associated tremendous
losses of planes and the casualties suffered by the U.S. armed forces, North Vietnam successfully endured, but the U.S. government was seemingly immoveable.
Jon underlined this irony by recounting how the top U.S. generals and Defense
Department officials periodically admitted what became the main conclusion of
his book, that is, that the bombing completely failed in its objective of bringing
North Vietnam down or even shortening the duration of the war.12
Coming away from this book, the reader is left to draw moral lessons independently. The empirical data for making a judgment are abundant: it offered
a massive quantity of hard evidence drawn from government sources, including
9 Van Dyke, North Vietnams Strategy for Survival, 24042, 247.
10 Ibid., 240, 12659, 18485 et passim.
11 Ibid., 189215.
12 Ibid., 2223, 29, 3435, 208.
26
harry n. scheiber
North Vietnams own publications (presumably in translation from U.S. government sources); the reports of French, American and other war journalists
on the ground; and congressional hearings and Department of Defense documents. The overall effect of this enormous trove of data was assessed by the eminent Asian affairs expert Edwin Reischauer (professor at Harvard and one-time
ambassador to Japan), who praised the book as providing the clearest picture
the general public has as yet had of the U.S. strategy.13 Beyond that, he asserted,
Jons research was a major contribution toward the continuing reassessment of
Americas policies in East Asia.14
This first book was a remarkable achievement for a neophyte academic. It was
to be only a precursor, however, of writings of similarly high qualitybut in a
different stylethat Jon would start producing almost immediately after its publication. These writings would prove to be only the first burst of scholarship and
commentary in what became a prodigious flow of new work that he turned out
in the nearly forty years to follow.
Scholarly Work Amidst the Winds of Change
By the time his book on the Vietnam bombings appeared in 1972, Jon had taught
on the law faculty of Catholic University for two years, following his graduation
in 1967 with the JD cum laude at Harvard; had participated in a summer 1986
seminar on human rights law at the School of Law, UC Berkeley; and had clerked
for Chief Justice Roger B. Traynor during 196970, then held a one-year research
appointment at the Center for the Study of Democratic Institutions at Santa Barbara. He was in the midst of his initial year of a new appointment on the faculty
of the Hastings College of the Law in San Francisco, and was teaching courses in
constitutional law, administrative law, and international law.
These early years of his academic life were a period of dramatic changes
in American society and in the nations politics. The rush of dramatic events
reflected or instigated new racial tensions and interracial violence, political radicalism that arose in reaction to the Vietnam War and especially its impact on
the nations youth; and then came angry, often-repressive responses to this radicalism mobilised by both centrist and right-wing elements in the private sector
and, in the Johnson and Nixon years, from the government itself. The Watergate
scandal and the Nixon impeachment intensified and broadened an existing mood
of crisis in governance and impelled new constitutional debates. Also influencing
domestic change were the Cold War confrontations of the superpowers, including the threats of their nuclear arsenals and missile strength, and the destabilising
impact of anti-colonialism and emergence of third world nations as a major force
13 Edwin O. Reischauer, Foreword in Van Dyke, North Vietnams Strategy for Survival, 7.
14 Ibid.
a jurisprudence of pragmatic altruism
27
in international diplomacy. And as is now well recognised, in retrospect, deep
cultural changes were more than transitory phenomena; for decades to come,
they would challenge many of the longest-held traditional social norms in both
Europe and America.15
Domestically, many of these tensions and challenges became the stuff of
famous litigation that placed the state and federal courts in the eye of the cultural
storm. A parade of high-profile cases involved school desegregation strategies,
church-state relations, claims against agency discretion (especially with regard
to welfare program administration) that were being advanced in the name of
individual dignity and autonomy, and advocacy of a radically expanded right
of privacy. Campaigns for no-fault divorce legislation and community property in
marriage law; conflicts over the constitutionality of the regulations of students
behaviour alleged to be in violation of freedom of speech; various expansions of
regulatory agencies jurisdiction and enforcement powers, especially in the advent
of environmental protections; and a revisiting of the rights of persons enmeshed
in criminal process, the rights of prisoners; and yet more: It was a formidable list,
building up at a time of turmoil and challenge. In these years, the politics and
direction of legal change in some states of the federal union reached a peak of
legal liberalism, yet there was also a powerful conservative response at every
level of politics and in every arena of discourse and power.16
As a real-life context for teaching law, all this was an unsettling environment.
The cool tone and relentlessly factual approach of Jons book on Vietnam, suggesting a preference for distancing himself from what might seem a polemical
engagement in controversy fraught with contested moral content, would be put
aside in Jons new writings, even before his book had gone to press.
Moral Content Brought to the Forefront of Analysis
The first of Jons new writings to appear was an article, The Laws of WarCan
They Ever Be Enforced? published in mid-1971 in The Center Magazine, a journal
issued by the Center for the Study of Democratic Institutions, where Jon held his
research appointment as a visiting fellow during 197071.17 He provided in this
15 See, for example, Richard Polenberg, One Nation Divisable: Class, Race and Ethnicity in
the United States Since 1938 (Harmondsworth: Penguin Books, 1991); and, Richard M.
Abrams, America Transformed: Sixty Years of Revolutionary Change, 19412001 (Cambridge: Cambridge University Press, 2006).
16 See, inter alia, Laura Kalman, The Strange Career Of Legal Liberalism (New Haven: Yale
University Press, 1998; Harry N. Scheiber (ed.), Earl Warren and the Warren Court (Lanham: Lexington Books, 2006); David Bodenheimer & James Ely, Jr. (eds.), The Bill of
Rights in Modern America (Bloomington: Indiana University Press, 2008).
17 Jon M. Van Dyke, The Laws of WarCan They Ever Be Enforced? (1971) 4/4 The
Center Magazine: 22.
28
harry n. scheiber
article a systematic accountingor, more to the point, systematic indictment
of actions by the American military in the Vietnam War that he argued were
violations of customary international law and, more specifically, of the Geneva
Conventions of 1949 and predecessor humanitarian treaties codifying what has
traditionally been termed more generally the law of civilised nations.
Jons new focus on international human rights law, and the international conventions that addressed war crimes, was evident in virtually every line of this new
study. His sense of outrage, it may be said, was now finding full expression. Thus
he deplored the American violations of a wide set of the norms for protection
of civilians; he condemned the U.S. government for war crimes for many of the
very same features of the disastrous bombing strategy that he had catalogued in
his book so methodically but without legal or ethical comment; and he recounted
the several international initiatives and informal tribunals that had addressed the
war crimes issue in Vietnam. His focus was on the United States and its allies,
and so he did not choose to explore the question of policies of the Viet Cong
that I think he would have deemed to be similarly in violation of humanitarian
precepts of customary law.
Special focus was given to the notorious My Lai Massacre, in which an entire
village of civilians, including women and children, were brutally murdered by
a U.S. Army unit, a disaster paralleled by a series of massacres perpetrated by a
South Korean unit allied with the American forces. The officers and foot soldiers
responsible for the My Lai outrage were long protected, as Jon pointed out, by the
Army in an elaborate cover-up. Only Lieutenant William Calley, unit commander
on the ground, was brought to trial and convicted; and then almost immediately
President Nixon reduced his sentence to house arrest.
Taking the My Lai tragedy and its sorry legal aftermath as a case in point, Jon
pushed his analysis a significant step forward by turning to the general question of how best to implement legal instruments in the field of human rights.
He proposed the need for trials and punishment of the high-level officials of the
U.S. military and of civilian government, who, he contended, should be seen as
ultimately responsible for the decisions and policies that permitted such a massacre to occur in the ground half a world away. Such trials, however, must be conducted at an international level: Experience had clearly shown, he maintained,
that a belligerent government could never be trusted to impose just punishments
for such violations in time of war.
Such was his answer to the question (as posed in the title of the article) as to
whether the laws of war could be enforced. His confidence in international institutions empowered to give teeth to norms and treaty requirementsessentially
an endorsement of the jurisprudence legitimised by the Nuremberg trialswould
become a recurring theme in Jons later writings.18 Both the strongly moral tone
18 Late in his career, for example, he would similarly become a strong proponent for
establishing the International Tribunal for the Law of the Sea (ITLOS), praising its
a jurisprudence of pragmatic altruism
29
and his preference for exercise of institutionalised, supranational legal authority
seem now to have moved to the very core of Jons jurisprudence. Hence his early
book on the bombing campaign can best viewed, in retrospect, as an anomalous
beginning in Jons overall record of scholarly contributions. The moral and ethical
dimension of his systematic marshaling of evidence for war crimes by America in
the Vietnam War, as he constructed it in his 1971 article, revealed a new research
priority and foretold accurately the intellectual style of his future scholarship.
UC Berkley Seminar on Humanitarian Law, Summer 1986
How did he come to adopt this new normative and judgmental style? There
seems little doubt that an important influence on him, impelling this shift in
his scholarly stance, was his participation a few years earlier in a summer seminar at the School of Law in the University of California, Berkeley. The seminar
was held in 1986 and was devoted to the subject of human rights law. It had
the stated and very specific goal of drafting a set of rules for implementation
of the recently concluded International Convention for the Elimination of All
Forms of Discrimination.19 Organised by Frank Newman, a Berkeley professor
of administrative law and former law school dean, and funded by a foundation
grant, the seminar brought together a small group of law students and earlycareer scholars, including Jon as visiting scholar. They were introduced to human
rights law by several distinguished visiting consultants and special lecturers who
had written important studies of Europes experience with implementation of
human rights law. The participants undertook an intensive program of readings
on humanitarian law, and then they went on to collaborate in developing a paper
with two purposes. The first was to identify and analyse the types of issues that
would most likely come up in implementation of the Convention; the second was
to construct a set of detailed procedural rules for the international committee of
experts that was established to oversee the process. Professor Newman published
the resulting document, under his name as author, in the 1968 volume of the
California Law Review.20
formation as a step forward in giving teeth to customary lawthat is, in obtaining just
and effective dispute resolution among nations confronting one another in dangerous
situations on the worlds oceans. See, Van Dyke, Louis B. Sohn and the Settlement of
Ocean Disputes. Similarly in his many and varied writings on the international conflicts in East Asian ocean waters, he counseled privately and insisted in publications
that referring disputes to ITLOS, or the International Court of Justice (ICJ), or arbitral
tribunals was a clear imperative if fair resolution of disputes and an atmosphere of
peaceful relations were to be achieved.
19 The International Convention for the Elimination of All Forms of Racial Discrimination,
opened for signature 7 March, 1966, 660 UNTS, 195 (entered into force 4 January, 1969).
20 Frank Newman, Rules of Procedure for the New Tribunal: A Proposed Draft, (1968) 56
California Law Review: 1569.
30
harry n. scheiber
Two of the UC Berkeley Law School students who participated with Jon in
this seminar are today among the worlds leading experts in human rights law.
They are Professors Dinah Shelton of George Washington University and David
Weissbrodt of the University of Minnesota.21 According to their recollections, the
seminarthe first to be organised in a law school west of the Mississippi River,
as they recallhad a catalytic effect on their academic focus and career goals, as
it did on Jons. Professor Shelton has remarked that, when asked how she became
interested in human rights law, she routinely answers that she was in the right
place at the right time, and the right place was Berkeley.22
An interesting sidelight on the Berkeley seminar is that Professor Newman
who would later become one of the giants internationally in the human rights
field, both as activist and in his academic pursuitswas initially introduced to
the field, and became committed to it, as the result of the seminar.23 There is little
reason to doubt that Jons consuming interest and enthusiasm for advancing the
cause of human rights (which came to a strong focus later, for him, on indigenous
peoples rights) and its pursuit through the development of international law,
similarly owed much to the seminar. In any case, we know from the record of his
subsequent scholarship and activities in public life that this interest blossomed
into a passionate commitment that never dimmed during the rest of his life.
Clerkship with Chief Justice Traynor
A second experience in this initial period of Jons career that arguably influenced
in a profound way his view of the lawand helped shape his concept of how
he might best contribute to legal development in his own future workwas
his service during 196970 as judicial clerk to Chief Justice Roger B. Traynor of
the California Supreme Court. Traynor was one of the nations most respected
state judges, renowned for his learning in the law, but also for his activist posture as a judge. The hallmark of his jurisprudence was his willingness to innovate
boldly when he deemed it necessary to protect and advance the public interest
in response to changing social and economic conditions. He regarded it as unrealistic, ultimately as damaging, and in every respect insupportable, for courts to
adhere slavishly to inherited doctrines without assessing them continuously in
the light of contemporary changes in community values.24
21 See Dinah L. Shelton, Regional Protection of Human Rights (Oxford: Oxford University Press, 2008); and David S. Weissbrodt, The Human Rights of Non-Citizens (Oxford:
Oxford University Press, 2008).
22 Private communication to the author.
23 In separate private communications to the author, both Professor Weissbrodt and Professor Sheldon recalled this distinct change in Newmans personal agenda.
24 For documentation and full citations in support of the following brief summary of
Traynor, see, for example, the excellent study of Traynors jurisprudence by Ben Field,
a jurisprudence of pragmatic altruism
31
Traynor had been at the forefront in the California courts leading role nationally in shaping the tort revolution in the common law, a famous (and as it
proved, enduring) shift in the premises and doctrines of liability. He was similarly ahead of his times in applying the imperatives of equal protection doctrine,
in several areas of law well ahead of the Warren Courts egalitarian decisions. A
well-known example of Traynors jurisprudential style was his courts invalidation
of the California miscegenation law, which had forbade interracial marriage; this
decision was handed down almost twenty years before the U.S. Supreme Court
adopted, in Loving v. Virginia, the same view of such discriminatory laws.25 In
their often-dramatic expansion of constitutional rights in criminal process, too,
Traynors opinions enshrined basic new doctrines in state law well ahead of the
federal judiciarys own innovationsas, for example, in applying the exclusionary rule to admissibility of evidence in state court trials.
In an insightful summarising of Traynors jurisprudence, an historian of California law has written: His concern for the powerless, his tendency toward social
egalitarianism, his fear of the police state, and his pro-consumer policy orientation resonated with contemporary liberalism. He unabashedly articulated policybased justification for legal reform giving clear indications of his conception of
the public interest and the values that shaped it.26
During the period of Jons service in Traynors chambers, the Court decided
the landmark case of Gion v. Santa Cruz,27 mandating another great change in
California law. In their unanimous decision in Gion, the Justices denied the right
of a recent purchaser of oceanfront land to exclude the public from a beach property to which the public had long enjoyed unchallenged access. The court drew
from common law concepts, constitutional language, and legislative history to
rule that a strong public policy required protection of general access.28 The language of this decision expressed in powerful terms the strength of this courts
concept of public interest and public rights, as against claims of private property
that had to be subordinated to the higher good of the community.
Justice Roger Traynor and His Case for Judicial Activism (Berkley: University of California,
2000); see also Rationality and Intuition in the Process of Judging: Roger Traynor, in
G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges
3rd ed. (New York: Oxford University Press, 2007) Traynors accomplishments as creative judicial innovator in the law are usefully compared with the renowned contributions of Chief Justice Lemuel Shaw in a classic article by Edmund Ursin, Judicial
Creativity and Tort Law, (198081) 49 George Washington Law Review: 229.
25 338 U.S. 1 (1967). The opinion by J. Traynor declaring the California statute unconstitutional is Perez v. Lippold, 198 P.2d 17 (Cal. 1948).
26 Field, Justice Roger Traynor and His Case for Judicial Activism, 18.
27 Gion v. Santa Cruz, 465 P.2d 50 (Cal. 1970).
28 Ibid., 59. On the deep historical roots of public rights jurisprudence, see Harry N.
Scheiber, Public Rights and the Rule of Law in American Legal History, (1984) 72
California Law Review: 217.
32
harry n. scheiber
Jon retained in his law school office files until his tragic death in November
2011 his manuscript drafts of the courts opinion in Gion, containing notes on
the authorities that he identified either on his own, at Traynors direction, or
by following leads from references in the briefs. It is impossible to say with any
certainty, on the evidence at hand, to what extent the final opinion incorporated
specific analysis or language that originated with Jon. What can be said confidently, however, is that he was witness at close hand to an historic moment in
American property law.
There seems little question, moreover, that the confrontation between private claims to the states natural resources and what the court regarded as in the
imperative public interestthe issue faced so explicitly in the Gion litigation
foreshadowed in a general way issues that would be prominent in litigation
that Jon would conduct in future years in Hawaii, in his cases on water law and
environmental protection. And it is evident, too, that Jons posture with regard
to the judiciarys proper role in upholding public policy and the public interest,
even when critics might decry Gion-style judicial activism, expressed principles
that had been creatively articulated in the exciting environment of the Traynor
Court.29
Perhaps his experience as Traynors clerk in fact served merely to reinforce a
principled liberalism that Jon already had considered and already held dear. Even
if that were so, his work on the Gion decision and, more generally, the environment of judicial innovation that prevailed in the court, seem to have had a vital
influence on his personal philosophy and his later scholarship. One must think
that his clerking year served to strengthen and energise Jons personal commitment to the brand of legal liberalism and progressive jurisprudence that Traynor
and his colleagues had impressed on the landscape of American state law, just as
the Warren Court was doing in the larger national context.30
Researches on the Jury System: Laying Down a Marker
Jon had embarked, meanwhile, on yet another and distinctly different line of
research during this early phase of his career: a set of studies of the American
jury system. He published an article, The Jury as a Political Institution, in The
Center Magazine in March 1970, a year before his war crimes article appeared. It
was a stunning work, for the forcefulness of his style of argumentation and for
the content of his policy recommendations.
29 References to his notes on the case and drafts of the opinion, in the Van Dyke office files
at the Richardson School, were located and generously provided by Sherry Broder.
30 The phrase legal liberalism is used here as it has been analysed by Professor Laura
Kalman. See, Kalman, The Strange Career Of Legal Liberalism.
a jurisprudence of pragmatic altruism
33
The trial jury, he contended, was the only element in criminal process in
which there was no discretion as to the legitimacy or applicability of a law: the
police had discretion to arrest; the prosecutor had discretion to decide whether
to charge; and the trial judge, who controlled day-to-day process, enjoyed full
discretion in giving his or her interpretation of the relevant law in the charge to
the jury. Only the trial jury itself had no discretion in this regard; it was required
to obey the judges instructions on the law. There was no constitutional imperative that juries should be subordinated in this way to a judges view of the law
under which defendants were tried, Jon argued. Juries should be free to act as
the conscience of the community, acting in defense of community values, and
in that way to assure that justice according to those values should prevail. He
wanted to enshrine jury nullification in the very fabric of criminal process. The
power to nullify, in his view, was a logical element in the essential justification
for having juries at all.
But he went further, in an intellectual move that would become the hallmark
of his style in addressing issues of law and policy: He lay down a marker, placing that marker well out at the farther boundaries of the mainstream, or even
beyond the outer limit of reformist discourse. Students of modern ocean law will
recognise immediately this strategy of argumentand of reformin Jons work
in their field.31 In this instance, regarding juries, Jon proposed that in addition to
accepting that jury discretion as to the law would be legitimate, judges should
actually be required to instruct juries that they had the authority to nullify! This
proposal brought criticism down on him, of course, with a bevy of eminent scholars warning that Jons position on juries would simply produce anarchy both
in the courts and in the jurisprudence of criminal process.32 But Jon found such
criticism misplaced, and he was unmoved by it.
The boldness of his views on the jurythe marker he laid downexpressed
what may fairly be called the radical-reformist aspect of Jons emergent intellectual posture on the law. He had become convinced, as is revealed by his later writings, that bold proposals, explicitly asserting moral imperatives and expressing
31 Cf. Van Dyke, infra notes 59 & 61 (with regard to Jons views on the precautionary
principle and on South China Sea issues).
32 The scholarly criticisms and the concern about anarchy in particular are discussed in
Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, (1991) 48 Washington and Lee Law Review: 165, 16566. Sanford Kadish of the
University of California, Berkeley, law faculty, and a leading figure in study of criminal
law, was among the critics. It is instructive that Professor Kadish, serving as editor of
a major scholarly encyclopedia of criminal law, nonetheless later selected Jon to contribute the article Jury Trial. This does not suggest that Professor Kadish changed his
mind on jury nullification, but it is intriguing evidence of how well respected Jon had
become for the depth of his research on jury procedures and performance. The article
is Jon M. Van Dyke, Jury Trial, in Stanford Kadish (ed.), Encyclopedia of Crime and
Justice, Volume 3 (New York: Free Press, 1983), 932941.
34
harry n. scheiber
ideas that others might deem utopian, could make a difference in the world. This
conviction became an article of faith for him; and I think he never deviated from
speaking or acting on that faith in later years.
In the years that closely followed publication of that first article of 1970 on the
jury, Jon went on to write on other aspects of jury functions. The major focus of
his research now shifted, however, to the discrete problem of jury selection. During the five-year period 1975 to 1980, he produced a series of monographic articles presenting analyses of his own and other scholars empirical field-research to
document what he declared was systematic bias in jury selection working against
the inclusion of women, minorities, and low-income persons. Although the U.S.
Supreme Court had taken notice of selection bias and its effects in the racially
segregated South, Jon contributed a persuasive body of empirical data from a
broad cross-section of the country. Again, a pervasive theme in his argumentation was the issue of how juries could perform the function that he regarded as
essential, that is, protection and assertion of the values of the community.33
This sustained line of new research culminated in 1977 with publication of a
major book, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels.34 This study won wide attention and was much admired in the academic field of criminal process studies. Only by adopting procedures to assure
that juries would be representative, Jon declared in the books concluding passages, could a stamp of democratic legitimacy be achieved in the decision making that led to trial verdicts.35 To tolerate jury selection as it was widely practiced
in America, he wrote, would be to deny the communitys norms and collective
conscience their proper influence in criminal justice.36
The Center at Santa Barbara and the New Challenges in
Ocean Affairs
Jons resident fellowship during 197071 at the Center for the Study of Democratic Institutions in Santa Barbaraan interim year between the clerkship with
Traynor and his appointment at Hastingsprovided him with a stimulating
33 He did not overlook the counter-argument that community sentiment could be tyrannical, as, for example, when an all-white middle and upper class jury, representing the
prevailing community racial prejudices among whites, passed judgment on poor black
or other minority defendants. In such case, he pointed out, federal courts had already
moved in to monitor such situations and had begun to intervene when prejudice had
been manifest; and in any event, even a single minority person on an otherwise allwhite jury could prevent an unjust verdict.
34 Jon M. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (Cambridge, MA: Ballinger Publishing Company, 1977).
35 Ibid., 219.
36 Ibid.
a jurisprudence of pragmatic altruism
35
academic milieu. In the case of the Center, it was a milieu with a distinctly progressive-liberal bent that reflected the political and ideological orientation of the
Centers leadership.37 With its core of resident fellows, with visiting fellows from
several academic fields, journalism, and public life, and with its energetic program of international conferences, the Center provided a fertile ground for Jons
expanding academic and activist interests. It was an environment of debate and
discourse in which normative analysis and the systematic application of moral
standards were encouraged. And as such, it would have been a setting in which
the trajectory of Jons values as a scholar would be given new impetus.
During his residency at the Center, he advanced the preparation of his first
book for publication. He also composed his 1971 Law of War article, which, as
we have noted already, announced his entry into the arena of moral discourse
about the war and forcefully raised questions about the need to enforce international humanitarian norms.38 He also joined with other lawyers in signing on to
an amicus brief in the case of Massachusetts v. Laird, in which the state government unsuccessfully challenged the constitutionality of the Vietnam War policies and actions.39 His concentrated work on the subject of juries apparently lay
ahead, however, since his next study on the subject was not published until 1975;
but in 1971 he did author a major article on the right to counsel in Californias
parole revocation proceedings.40
The most prominent specific result of his residence at the Center, however,
was that it set him on his course toward preeminence in the field of ocean law
and policy. The catalyst was his colleagueship there with Elisabeth Mann Borghese, who was one of the senior academic researchers on the core research
staff. Borghese was then becoming an important voice in ocean law debates, and
she would soon exercise a major influence internationally on the developments
37 The Center was founded in 1959 by Robert Hutchins, former president of the University
of Chicago, and its board members included Justice William O. Douglas, the journalist Harry Ashmore (who would later become director), and other figures known for
their liberal views on domestic issues and their internationalist approach to foreign
affairs. See, for example, Michael Redmon, Center for the Study of Democratic Institutions, Santa Barbara Independent, 28 May 2009, available at www.independent.com/
news/2009/may/28/center-study-emocratic-institutuions/.
38 Van Dyke, The Laws of WarCan They Ever Be Enforced?.
39 400 U.S. 886 (1971); Anthony A. DAmato, Brief for Constitutional Lawyers Committee
on Underclared Wars as Amicus Curiae, Massuchusetts v. Laird, (1971) 17 Wayne Law
Review: 67151 (where the brief was published).
40 See, Jon M. Van Dyke, Parole Revocation Hearings in California: The Right to Counsel,
(1971) 59 California Law Review: 1215. This article was used by Justice Tobriner in his
opinion in In re Tucker, 5 Cal. 3d 171, 186, 486 P.2d 657, 666 (1971) (dissenting opinion),
and was cited by Justice Douglas in his opinion in Morrissey v. Brewer, 408 U.S. 471, 498
(1972) (dissenting opinion) and by Justice Powell in the majority opinion written for
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). While serving on the Hastings faculty, Jon
also was active in the public activities of the Bar and in focused law reform studies.
36
harry n. scheiber
leading to the UN Convention on the Law of the Sea (LOSC). In 1968 she wrote
a proposed statute (setting forth core principles plus detailed rules and procedures to be included in a global treaty) for the peaceful uses of the oceans.41
This study, perhaps better termed a manifesto, was published by the Center and
evoked wide discussion in the United States and internationally among diplomats and international lawyers.42
Borgheses activity in this cause of a treaty for a universal law of the sea was
at an intensive pitch by the time Jon arrived at the Center. The moment was ripe
for Borgheses campaign, for in 197071 the UN General Assembly was moving
quickly in a process of initiating positive steps to organise a global conference
on the subject.43 In December 1970 the General Assembly passed, by a vote of
108 to 0, with 15 abstentions, UNGA Resolution 2749, entitled A Declaration
of Principles Governing the Sea-bed and Ocean Floor Beyond the Limits of
National Jurisdiction, adopting the principle that resources of the seabed under
the high seas were the common heritage of mankind.44 Shortly afterward, the
General Assembly formally called for the convening of the long-contemplated
conference on law of the sea. The terms of this further resolution, as to agenda,
went beyond seabed questions to embrace the entire range of issues left outstanding after failure of the 1960 conference in Geneva to satisfactorily resolve
deeply rooted conflicts of legal opinion (and the conflicts of national interests in
the Cold War world).45
With the Centers financial resources at her disposal, Borghese was then sponsoring a stream of seminars, lectures, and consultants visits on oceans policy
events that captured Jons attention and concern. These contacts were a superb
source of education, and inspiration, on ocean affairs; and they served Jon well, as
events proved, when, later in his career, he would make a serious commitment to
41 See, Betsy Baker, Uncommon Heritage: Elisabeth Mann Borghese, IntLaw Grrls, 8
February, 2012, available at http://www.intlawgrrls.com/2012/02/uncommon-heritageelisabeth-mann.html.
42 Ibid.
43 An authoritative and succinct historical study of the UN conferences to frame a treaty
on law of the sea, in the context of other contemporary developments, is provided in
Lawrence Juda, International Law and Ocean Use Management: The Evolution of Ocean
Governance (New York: Routledge, 1996), 138243.
44 Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil
Thereof, beyond the Limits of National Jurisdiciton, G.A. Res. 2749 (XXV), U.N.Doc.A/
RES/2749 (17 December, 1970).
45 Anne L. Hollick, U.S. Foreign Policy and the Law of the Sea (Books on Demand, 1981),
23439; Jon M. Van Dyke & Christopher Yuen, Common Heritage vs. Freedom
of the High Seas: Which Governs the Seabed? in Edward L. Miles and Scott Allen
(eds.), The Law of the Sea and Ocean Development: Issues in the Pacific Basin: Proceedings
of the Law of the Sea Institute, Fifteenth Annual Conference, 58 October 1981, Honolulu,
Hawaii (Honolulu: University of Hawaii, 1983) 206, 22126; also published under same
title and authorship, in (1981) 19 San Diego Law Review: 493.
a jurisprudence of pragmatic altruism
37
the field. Borghese, a colleague much admired by Jon, recruited him as an enthusiastic (and professionally well credentialed) ally in her campaign. The larger goal
of advancing internationalist and global approaches to problem-solving and the
attainment of world peace, the objective that framed her position on ocean law,
was, as those who knew Jon personally can attest, entirely consistent with his
own position on the moral basis and essential purpose of legal ordering. Borghese
never wavered from a demand that the world community honour the famous
concept voiced by Ambassador Pardo in a Malta resolution before the General
Assembly in 1967that the seabed was a common heritage and should not
be susceptible of capture and ownership by any State or other entity. It became
for her (as it was ultimately enshrined in the text of the LOSC of 1982) the core
principle for the legal ordering of the oceans more generally.46
Jon was thus drawn into an active role in assisting Borghese in a project for
organising a high-level international conference to be held in Rhodes and entitled
Pacem in Maris. He aided the project in its organising phase, in the development
of agenda statements, and then in his personal participation in the conference,
one presumes in the capacity of an assistant to Borghese in administration. It was
an ambitious enterprise in its scale, notable for the prestige of participants; and
it received abundant publicity when it met in Rhodes during the last weeks of
Jons formal association with the Center.47 As soon as it had ended, Jon needed to
move his residence from Santa Barbara north to San Francisco, where he would
immediately take up his new teaching appointment at Hastings.
Almost ten years would pass, however, before Jon would return in earnest to
the subject of ocean law and policy. Presumably he followed closely the progress
of the momentous debates in the UN conferences negotiations on the subject
during 197381; but his attention as teacher and research scholar was focused
on other things. These other projects included two collaborations, written soon
after he moved to Hawaii, that issued in major studies on water rights and of
constitutional issues relating to growth management policies. Both of the latter were prepared for the Hawaii Department of Budget and Finance, signaling
Jons entre in 1977 into the arena of Hawaii state policy and state constitutional
lawan arena in which he would maintain a high-profile presence through the
thirty years time that remained to him.48
46 I rely upon personal discussions with Jon Van Dyke over many years, and with Sherry
Broder, April 2013, for this description of how Borghese and the Center residency
affected Jons expansion of the scope of his interests; and upon correspondence with
Dr Baker on Borgheses career during the time period referred to here.
47 Baker, Uncommon Heritage: Elisabeth Mann Borghese: 40.
48 Jon M. Van Dyke, Williamson B. C. Chang, Nathan Aipa, Kathy Higham, Douglas
Marsden, Linda Sur, Manabu Tagamori, & Ralph Yukumoto, Water Rights in Hawaii,
in Land and Water Resource Management in Hawaii (Honolulu: Hawaii Dept. of Budget and Finance, 1979), 141333; Carl M. Selinger, Jon M. Van Dyke, Riki Amano, Ken
38
harry n. scheiber
Reasserted Foundations of the Van Dyke Legacy in Ocean Law
Scholarship
When Jon decided to rededicate his research focus to embrace ocean law, around
1980 or 1981, it marked a dramatically new beginning for his scholarship. The shift
back to ocean law was significant in itself; but at the time, few even of his friends
or colleagues could have imagined how wide a swath he would cut through
nearly all the subfields of ocean law with his important scholarly writings in the
years to follow.
It was especially appropriate that it was in 1982, the very year when LOSC
was opened to signature and ratification, that Jons wife and colleague in the
law, Sherry Broder, co-authored Jons first article on marine boundaries.49 This is
an excruciatingly technical area of ocean law, one that has roiled the doctrinal
waters in the International Court of Justice, the learned treatises, and briefs and
opinions in diverse arbitral awards. The field became for Jon a subject in which
he worked assiduously over the years, and in which by the 1990s he had become
a world-class authority.50
Especially appropriate, as well, was the regional focus of the co-authored
1982 articleentitled Ocean Boundaries in the South Pacificin the sense
that it foretold Jons enduring interest in the life, law, and socio-cultural issues in
the Pacific region. This interest, too, would be expressed in many of his most
influential later writings. By the mid-1980s, he had also embarked on a project
for analysis of the baffling conflict of legal views over islands and rocks (as
each was defined in arbitral and judicial decisions, and in the LOSC). This analysis bore on a crucial issue in both the academic debates and the geopolitics of
ocean law, since whether such mid-ocean features were entitled to a 200-mile
EEZ would be at issue. In 198283 he co-authored with Robert Brooks two articles
Takenaka, & Robert Young, Selected Constitutional Issues Related to Growth Management in the State of Hawaii, (1978) 5 Hastings Constitutional Law Quarterly: 639714,
reprinted in Growth Management Issues in Hawaii (Honolulu: Hawaii Dept. of Budget
and Finance, 1977), 129201.
49 Sherry Broder & Jon M. Van Dyke, Ocean Boundaries in the South Pacific, (1982) 4
University of Hawaii Law Review: 1.
50 Sherry Broder also was co-author of numerous later works in this and allied areas of
ocean law and policy; and she also was the co-litigator with Jon in numerous human
rights cases, including the famous 1986 tort suit on behalf of the victims of the Marcos
regimes torture and killings in the Philippines. See, for example, Trajano v. Marcos, 978
F.2d 493 (9th Cir. 1992)), cert. denied, 508 U.S. 972 (1993); Hilao v. Marcos, 25 F.3d 1467
(9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995), and 103 F.3d 762 (9th Cir. 1996); Merrill
Lynch, Pierce Fenner and Smith, Inc. v. ENC Corp., 464 F.3d 885 and 467 F.3d 1205 (9th
Cir. 2006); Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008). See also, Jon M.
Van Dyke, The Fundamental Right of the Marcos Human Rights Victims to Compensation, (2001) 76 Philippines Law Journal: 16993.
a jurisprudence of pragmatic altruism
39
on international law relating to uninhabited islandsyet another variant of
boundary issues in this daunting sub-field of international law.51
After the conclusion and opening for signature of the LOSC in 1982, there was
ever-rising public discussion of the Conventions merits and potential impact.
This was evidenced in debates within many countries over whether to sign and
ratify. They were accompanied by a wave of new scholarship, articles in popular
publications, a proliferation of conferences, and the appearance of journalistic
and political commentary regarding the treaty and its proposed innovations in
law. A North-South division over implications for the post-colonial economies
of the new coastal economic zones; the fundamental coastal vs. distant-water
fishing interest views on the high seas area and the law of highly migratory species; innocent passage vs. the concept of free transit; military and scientific activities that might be constrained and limited; and other important pointscutting
across them, of course, the Cold War alignment of the great powerslent great
urgency to the debates.52 Jon became a leading voice in this discourse. Two of
the research fields in which he quickly established a major position internationally were, first, the law of seabed mining under terms of LOSC, and, second, the
regulation of nuclear activities on the worlds oceans.
Regarding seabed mining, he pursued the basic issue: On what basis should
States and private parties have access to engage in exploitation of the seabed in
the high seas, that is, the vast oceans area beyond the outer limits of coastal
States claims to sovereignty or of special jurisdiction? This had been an intensely
contested issue since the possibility of mining valuable nodules from the seabed first captured attention from industry and academe in the 1960s; and the
debate of principles and specific rules continued even after the signing of LOSC
in 1982.53
51 Jon M. Van Dyke & Robert E. Brooks, Uninhabited Islands: Their Impact on the
Ownership of the Oceans Resources, (1983) 12 Ocean Development and International
Law: 265; Jon M. Van Dyke & Robert E. Brooks, Uninhabited Islands and the Oceans
Resources: The Clipperton Island Case, in Thomas A. Clingan Jr. (ed.), Law of the Sea:
State Practices in Zones of Special Jurisdiction: Proceedings of the Law of the Sea Institute,
Thirteenth Annual Conference, 1518 October 1979, (Honolulu: University of Hawaii,
1982), 35192.
52 See, for example, Hollick, U.S. Foreign Policy and the Law of the Sea.
53 The terms of the original 1982 Convention were so unacceptable to the United States
and other industrial nations that it was not until 1994 that a compromise was reached
and a new agreement concluded that downgraded the jurisdiction and powers of the
UN Seabed Authority as formulated in the Convention, and substituted a version more
congenial to the interests and ideological position of private companies and some of
the States with a stake in the exploitation of seabed minerals and hydrocarbons. See,
Hollick, U.S. Foreign Policy and the Law of the Sea, 340398; Bernard Oxman, The 1994
Agreement relating to the Implementation of Part XI of the UN Convention on the Law
of the Sea, in Davor Vidas & Willy streng (eds.), Order for the Oceans at the Turn of the
Century (The Hague: Kluwer, 1999), 1536. The terms of the seabed debate in its initial
40
harry n. scheiber
For Jon, as it had been for other deeply committed internationalists, the
proper legal and moral perspective on this problem was clear: it held that
the seabed, as had been so famously proposed by the Malta delegation in the
UN General Assembly, was part of the common heritage of humankind. To
permit its resources to be captured by the first successful prospectors, whether
they be nations, companies, or individuals, was for him in violation of this basic
preceptand in violation, as well, of the essential spirit of what the LOSC had
been intended to accomplish. As Jon viewed the doctrine of freedom of the
seas (a fine sounding phrase, suggesting idealism, as he conceded), it was a concept that provided rhetorical cover for a host of rudely exploitative activity that
damaged resources and disadvantaged the poorer nations. And so, in a presentation in 1981 to the Law of the Sea Institute annual meeting, revised for publication in the San Diego Law Review the next year, Jon and co-author Christopher
Yuen (his third-year JD student at the time) published a seminal study, setting
forth a comprehensive position on the basic ethical and legal issues that were at
stake in the seabed-law debate.
Their paper, entitled Common Heritage vs. Freedom of the High Seas:
Which Governs the Seabed?54 was at the time of its publication, and remains
today, a model of carefully crafted and brilliantly creative legal argumentation.
(Indeed, I often have assigned it, for that reason, as the introductory reading on
my syllabus for students in my ocean law seminar class at Berkeley.) In support
of their interpretation of the common heritage, the authors draw upon the history of customary law, the formal resolutions of the UN General Assembly, assertions of principle drawn from arbitral awards, assessment of economic realities
of how seabed mining could affect developing countries, policy statements by
U.S. administrative and elective officers, and International Law Commission
(ILC) commentaries. The logical anatomy of the arguments on either side is put
under the microscope, starting with the historic seventeenth-century doctrine
of freedom of the seas and ending with the varied contested views of their
own day.
phase are captured well in presentations to the first Law of the Sea Institute (LOSI)
annual meeting, held in February 1965. See the proceedings of that meeting in, Lewis
M. Alexander (ed.), The Law of the Sea: Offshore Boundaries and Zones (Columbus: Ohio
State University Press, 1967), 16086, 3029 [hereafter LOSI Proceedings]; and readings
in William Menard and Jane L. Scheiber (eds.), Oceans: Our Continuing Frontier (Del
Mar: Publishers Inc., 1976), 16271.
54 Van Dyke & Yuen, Common Heritage vs. Freedom of the High Seas: Which Governs the Seabed?, also published in (1982) 19 San Diego Law Review: 493551; it was
reprinted in Jons own collection, Jon M. Van Dyke, D. Zaelke, & G. Hewison, (eds.),
Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony
(Washington: Island Press, 1993) and other publications; and it is widely used by scholars and teachers of law as well as multiple other disciplines.
a jurisprudence of pragmatic altruism
41
Very typical of Jons approach to this type of important doctrinal issue, he and
Yuen phrase the objective as determining if any of the attitudes [sic] that have
developed have risen to the level of legal obligations.55 This transitional moment
in the argument is a smooth one, indeed sedulously so: attitudes can morph
into legal obligations. The authors do concede it is not a seamless process; and
to the conservative legal mind, their invocation of attitudes, rather than the
more established formal concept opinio juris, would seem rather evasive. But Jon
had once again put out a marker that could not be ignored by any thoughtful
participant in the debate: it was a challenge to readers to consider whether an
accretion of attitudes expressed in a wide range of varied sources can be said
plausibly to have created new hard law, which is to say, created legal obligations.
In what represented yet another thread running through much of Jons later work
in a reformist bent, on the subject of the common heritage of mankind concept,
Jon and his co-author concluded:
Although the concept has its ambiguities, it does impose some legal duties. Nations
are not free to do as they please on the seabed; they are not free to pretend that the
common heritage is an empty phrase without meaning. They are bound by the common heritage principle to provide meaningful sharing of the benefits of the seabed
with other nations, particularly the developing nations.56
Not to be overlooked here, we must note in a parsing of this paragraph, is the
further marker that it puts down: the claim that commonality of ownership
requires sharing, and that sharing, in turn, requires attention to particularly the
developing nations. To be sure, the argument here is grounded in the specific
issue of the seabed mining controversy, and the UN debate included discussion
as to whether revenues should be allocated to poorer nations unable themselves
to finance such mining ventures. But Jons concern to advance the resourcesharing idea, in which was embedded the special consideration to developing
nations (and small island nations), would broaden greatly over time: It became
an integral feature especially in his later writings on the precautionary principle,
regional fishery management programs, and the economic possibilities of bilateral and multilateral sharing arrangements in areas of disputed marine space
and resources.57
55 LOSI Proceedings, 220.
56 Van Dyke & Yuen, Common Heritage vs. Freedom of the High Seas: Which Governs
the Seabed?: 551.
57 To cite only one example, consider Jon M. Van Dyke, Sharing Ocean ResourcesIn
a Time of Scarcity and Selfishness, in Harry N. Scheiber (ed.), The Law of the Sea: The
Common Heritage and Emerging Challenges (Leiden/Boston: Martinus Nijhoff, 2000),
336.
42
harry n. scheiber
The Ethic of Pragmatic Altruism and Ocean Law
From his fresh re-commitment to oceans studies in 198182, Jon moved on to
produce a rich corpus of work in ensuing years. Specific aspects of his scholarly contributions are well recognised and appreciated, as in various articles
in the recent University of Hawaii Law Review symposium issue.58 Viewed in a
chronological framework, Jons inaugural moves in the 1980s into new topical
areas included research on the threats of nuclear waste and the carriage of ultrahazardous cargoes in ocean shipping; on U.S. law and Pacific island legal rights;
and on the merits of modes of collaboration and initiatives for new treaty-based
environmental protections in the Pacific islands. In the 1990s decade, he continued work on these lines, analysing new developments on a range of nuclear
issues, on boundary delineation, and on the South China Sea. A book, jointly
authored, also appeared in 1997 on conflicts and the possibilities for their resolution in the latter, chronically troubled, ocean region.59
Jon enjoyed a close friendship with Dr Choon-ho Park of Korea, who as a young
scholar held an appointment at the East-West Center in the University of Hawaii
and later became the leading figure in bringing studies of ocean issues in East
Asia into the orbit of scholarly work in international law. Jon was an enthusiastic
recruit for this cause as well; and throughout a career that carried Dr Park first
to a distinguished professorial post in Korea and then appointment as a judge
on the ITLOS bench, he and Jon kept in constant touch on scholarly and policy
issues. Their mutual and intersecting interests reinforced the intensity of Jons
expansion of research scope in his studies of the Pacific area.60
58 See, inter alia, David VanderZwaag, The ICJ, ITLOS and the Precautionary Approach:
Paltry Progressions, Jurisprudential Joustings, (2013) 35 University of Hawaii Law
Review (praising Jons advocacy of the precautionary principle); Maxine Burkett, A Justice Paradox: On Small Island Developing States and the Quest for Effective Legal Remedy, (2013) 35 University of Hawaii Law Review (discussing Jons scholarship on climate
change); David Freestone, Can the UN Climate Regime Respond to the Challenges of
Sea Level Rise? (2013) 35 University of Hawaii Law Review (referencing Jons attention
to sea level rise); Yann-huei Song, Conflicting Outer Continental Shelf Claims in the
East and South China Seas: Proposals for Cooperation and Peaceful Resolution, (2013)
35 University of Hawaii Law Review (lauding Jons contributions to the development
of ocean law and the study of the East and South China Sea disputes); James Anaya,
The Human Rights of Indigenous Peoples: United Nations Developments, (2013) 35
University of Hawaii Law Review (acknowledging Jons pioneering work in the areas
of international law and indigenous rights); and Sherry P. Broder, Responsibility and
Accountability for Harm Caused by Nuclear Activities, (2013) 35 University of Hawaii
Law Review (paying tribute to and adopting Jons calls for a more robust international
nuclear liability and compensation regime).
59 Mark J. Valencia, Jon M. Van Dyke, & Noel A. Ludwig, Sharing the Resources of the South
China Sea (Honolulu: University of Hawaii Press, 1999).
60 See, Harry N. Scheiber, Judge Choon-ho Park the Law of the Sea Institute and Modern
Scholarship in Ocean Law, in Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and
a jurisprudence of pragmatic altruism
43
From 2000 onward, Jons outpouring of work on ocean law continued apace.
In the space of a decade, he continuedalone and with co-authors and the help
of carefully credited research assistantsto publish new, original analyses of
navigation rights, hazardous cargo at sea, sustainability of marine resources,
human rightsespecially in connection with the Marcos tort suitand Native
Hawaiian rights. However, he also opened up two new research fronts that have
proven to be especially noteworthy. One was a set of important studies on international tensions and ocean law in the East Asian ocean area. He addressed in
particular the political confrontations, threats of military engagements at sea, and
issues generated by legally questionable (or patently spurious, but emotionally
charged) claims focusing on rocks qua islands, the assertions by several States of
historic rights and rights from first occupation often impossible to support plausibly, and, above all, the claim made by China for some 80 per cent of the South
China Sea on the basis of a unilaterally redrawn map (the so called Dotted Line
map). This map-based claim dated from the last years of the Nationalist regime
in the late 1940s and was ignored until recent times by the successor Communist
government of the Peoples Republic of China (PRC) and almost everyone else. Jon
also became increasingly bold in articulating his criticisms of Japanese claims, the
intransigent opposition of the PRC to multilateral modes of agreement or adjudicated solutions through international courts or arbitral bodies, and these governments tolerance and/or encouragement of militant nationalism that fueled the
political tensions. In this area of research, culminating in some of his last writings
before his death, Jon joined forces with his teacher at Harvard Law School forty
years earlier, Professor Jerome Cohen of New York University, one of the worlds
leading authorities on Chinese law and governance.61 On the conflict between
Japan and Korea over control of Dokdo in the Sea of Japan/East Sea, in individual
writings and in collaboration with Professor Seokwoo Lee, he came down in support of the Korean claimbut at the same time he sought to emphasise that the
overarching desideratum was not to force surrender of sovereignty claims but to
Jin-Hyun Paik (eds.), Governing Ocean Resources: New Challenges and Emerging Regimes,
A Tribute to Judge Choon-Ho Park (Leiden/Boston: Martinus Nijhoff, 2013), 17. Judge
Park and Jon were involved in its activities at every critical juncture in the history of
the Law of the Sea Institute, and in recent years both of them were instrumental in
shaping a new program of LOSI collaboration in research and publication with Inha
University and, more recently, the policy studies staff of the Korea Institute for Ocean
Science and Technology.
61 See, Jon M. Van Dyke, Whats at Stake in the South China Sea? in Jin-Hyun Paik and
Seokwoo Lee (eds.), Sharing and Distributing Ocean Resources (Seoul: ORUEM Publishing House, 2013); and Jerome A. Cohen & Jon M. Van Dyke, China and the Law of
the Sea, in Harry N. Scheiber & Jin-Hyun Paik (eds.), Regions, Institutions, and Law
of the Sea: Studies in Ocean Governance (Leiden: Martinus Nijhoff, 2013), 24556. Professor Cohen has informed the present author that he maintained a friendship with Jon
and his family throughout the long intervening years, but only in the last few years did
he and Jon re-connect in a research context and begin on their collaborative writing.
44
harry n. scheiber
create joint development zones for collaborative economic uses and sharing of
benefits.62
The other especially notable area of his sustained work was dedicated to
articulation and advancement of the precautionary principle. He was out ahead
of most international lawyers and diplomats in recognising the potential of this
principle (also variously termed a doctrine or, especially by its detractors, as
an approach) for the protection and sustaining of resources. To be sure, in the
1980s and early 1990s there were other strong champions of the principle, especially in the environmental NGOs and in small corners of the diplomatic offices
of many States. The idea came into its own, however, with incorporation into
the language of the Rio Conference and the Biodiversity Convention in 1992.63
Here again, as the idea moved closer to the core of mainstream thought, Jon
laid out markers ahead of the trend. He leapt on the opportunity offered by the
Rio meeting to declare that there should be a formal requirement of an environmental impact assessment, as an essential element of the precautionary principle
as applied, when resource exploitation or other activities potentially endangering to the environment were proposed. Moreover, States should not be seen, he
argued, as the only relevant international decision makers; indigenous peoples,
certainly, and animals too deserve to be heard from.64 He also drew out from
the basic concepts an expanded theory of precaution, with elements integral to
it beyond duty to cooperate as a generalisation: He contended for the matrix of
these elements to include the polluter pays principle, a liability and compensation regime (crucial, of course, for any commercial activity), linked with a strict
liability standard, long periods of liability in statutes of limitations, compulsory
insurance requirements, and the likeall of these elements consistent with, or
mandated, by provisions of LOSC.65
62 Seokwoo Lee & Jon M. Van Dyke, The 1951 San Francisco Peace Treaty and Its Relevance to the Sovereignty over Dokdo, (2010) 9 Chinese Journal of International Law:
741.
63 Convention on Biological Diversity, opened for signature 5 June, 1992, 31 ILM, 818
(entered into force 29 December, 1993). For aspects of the complementarity of this
Convention with LOSC see Harry N. Scheiber, The Biodiversity Convention and Access
to Marine Genetic Materials in Ocean Law, in Vidas and streng, Order for the Oceans
at the Turn of the Century, 187200.
64 Van Dyke, Sharing Ocean ResourcesIn a Time of Scarcity and Selfishness: 35.
65 Jon M. Van Dyke, Ocean Transport of Radioactive Fuel and Waste, in David D. Caron
and Harry N. Scheiber (eds.), The Oceans In The Nuclear Age: Legacies And Risks (Leiden:
Martinus Nijhoff, 2010), 160, 166; and Van Dyke, Sharing Ocean ResourcesIn a Time
of Scarcity and Selfishness: 35. Again with an eye to the interests of developing nations,
he contended that when regional fishery management organisations imposed regulatory regimes that might serve to exclude new entrants, developing nations from the
region would appear to have a greater right to enter the fishery than would developed
nations from outside the region. Ibid.
a jurisprudence of pragmatic altruism
45
Framing these arguments, and others on parallel lines in other writings, was
Jons insistence that the foregoing precepts are not mere idealistic mantras,
but are important and practical principles that the world must embrace... It
was this generations greatest challenge to make that ethic of pragmatic altruism meaningful so that the common resources will remain available to us and to
those who follow.66
Judgments
At some crucial junctures in the present analysis of Jons scholarship and his ethical values, it has been necessary for me to speculate on the sources of inspiration
that set his research trajectory and infused its normative content with meaning
for him. Without minimising for the reader the limitations of this Chapter in
these regards, we do have some excellent evidence from two of Jons own writings
that help one to judge the reliability of the interpretations that I have ventured.
Each of these writings presented Jons evaluation of the scholarly legacy of a giant
in international law, each of his subjects an individual who left a large footprint
on the literature and on twentieth century jurisprudence.
One of these studies was an appreciationthough not merely an uncritical
tributeof Louis B. Sohn, one of the most prominent and respected leaders of
the international movement that led to successful negotiation of the LOSC. Jons
focus, in this piece, was on what he termed his subjects great contribution to
the field of international law, that is, an unrelenting effort to confirm that it is
a real and enforceable body of sound legal principles, and to advance the formation of permanent organisations and dispute-settlement bodies that will assure
that violators would be punished and victims compensated.67
The basic principles and objectives of policy that Jon singles out from his
review of Sohns scholarship give us a window through which to view Jons own
values. First, there was Sohns contention that there had been an acceleration of
legal development, so that in legal analysis The old theories of customary law
evolving over a long period of time no longer apply.68 Jon was impatient with
the old-style concept that recognition of a rule of customary law must be the
product of decades, or for some substantial rules even centuries, of State practice.
We have noted already the ways in which Jon put down markers out ahead of
mainstream or at the outer margins of reformist thought, both in regard to juries
66 Van Dyke, Sharing Ocean ResourcesIn a Time of Scarcity and Selfishness: 36.
67 Van Dyke, Louis B. Sohn and the Settlement of Ocean Disputes: 31. Other references
to Sohns ideas in the paragraphs following here are from ibid., 3147.
68 Louis B. Sohn, Dispute Settlement, in Lawrence Juda, The United States Without The
Law Of The Sea Treaty: Opportunities And Costs (Wakefield: Times Press, 1983), 126,
quoted in Van Dyke, Louis B. Sohn and the Settlement of Ocean Disputes: 32, note 4.
46
harry n. scheiber
and later, in his ocean law writings, especially as to the seabed question and
as to the precautionary principle, contending that there was abundant evidence
that customary law, and hence legal obligation, had taken mature and binding
form. In these various arguments, Jons use of precedent mirrored what Sohn
had contended was legitimate under modern conditions of accelerating change
in the international legal and institutional order. Change on all dimensions has
been going forward with great rapidity (just as technological change, population
growth, and resource crises have accelerated the pressures for change).69 Reflecting Sohns contentions, Jon believed that non-binding resolutions of international
bodies, dissenting opinions in arbitrations, diverse writings by legal commentators, accumulating in the record of speeded-up life in the global order, could and
should be cited as evidence in identifying creation of new customary law.
For some colleagues, Jon sometimes seemed willing to cast too wide a net,
indeed a large-mesh conceptual net. Though my own values and view of legal
methodology were aligned with Jons in almost all regards, I confess that I occasionally suggested to him, albeit collegially, that at least he should leave the
adjective emerging in place before flatly declaring one of his dearly held values
or causes to be customary law.
A second theme in Sohns work that was reflected in Jons career and scholarship was an indomitable optimism about what careful analysis and dedicated
advocacy could achieve. The odds were clearly against an international conference producing a comprehensive treaty, applicable universally, covering a huge
spectrum of ocean uses and points of legal doctrine, when Sohn took a leading
role in the American arena in the 1950s through the 1970s, campaigning for the
UN (and the United States Government) to act on the idea. In the same spirit of
admiration he expressed for Sohn, that unrelenting effort in campaigning could
produce meaningful change,70 one can say of Jon himself that he, too, was relentless in pursuit of his own causes.
Finally, Jon regarded the creation of the International Tribunal for the Law of
the Sea as something close to a personal triumph for Sohn. He shared Sohns keen
satisfaction that compulsory mechanisms for settlement of ocean law disputes
had become a central feature of the LOSC agreement, but where Sohn was cautiously optimistic about future performance Jon went further, as was his wont:
He set forth a hypothetical case for the ITLOS tribunal, one in which a small
nations interest was pitted against that of a larger, richer nation. If ITLOS were
to uphold the poorer nations cause, then the rights and duties of all States would
69 See, for example, Harry N. Scheiber, Economic Uses of the Oceans and the Impacts
on Marine Environments: Past Trends and the Challenges Ahead, in Davor Vidas and
Peter Johan Schei (eds.), The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Leiden: Martinus Nijhoff, 2011),
6598.
70 Van Dyke, Louis Sohn, 31.
a jurisprudence of pragmatic altruism
47
be enunciated and international law would take greater shape. His optimism
that this happy result could be realised in future adjudication before ITLOS was
buttressed, it appears, by his evaluation of the slender record of three cases which
had been decided to the date of his writing. He did concede that in one of those
cases, the Tribunal disappointed by declining to reach the merits.71 Nonetheless
Jon deemed the results in the other two cases to be ample evidence on which to
celebrate that the Tribunal is prepared to act boldly and decisively with regard
to highly contentious disputes. His optimism was indeed indomitable, a point on
which other commentators too have remarked! It was twenty years ago, after all,
that he announced that we may be on the threshold of an era in which the goal
of universal respect for human rights is at hand.72 We do well to keep in mind,
as was remarked in the first sentence of this paper, that many of Jons dreams
have actually come true.
To the foregoing observations on Jons own style in scholarship and advocacy,
it may be said again that his efforts to advance rule of law also had a powerful regional focus in the Pacific. He was respectful of the cultures and needs of
the Pacific island communities, and on important occasions served as counsel
in their internal and international legal activities. One of his last major projects
was to document and evaluate the record of judicial reform and legal development in the island States; and he worked closely with leaders of the U.S. federal judiciary in developing collaborative projects with the bench and bar in the
Pacific area. In this element of his career, too, optimism and devotion to making
judicial institutions effectiveparallel to his and Sohns concern with building
international institutionswere constant features of his work.73
A second major figure in international law on whom Jon wrote an appreciative essay was Shigeru Oda, the great ICJ judge and leader of legal scholarship in
his native Japan. Judge Oda positioned himself in a conservative stance on doctrine as reliably as Jon did in a reformist stance. Yet, as Jon generously asserted
in this study, both he and Judge Oda, each in his own way was committed to
the common cause of trying to advance the rule of law.74 Jon praised Judge Oda
71 This was what he termed the crabbed conclusion of the arbitral tribunal to which the
case was referred, that it could not reach the merits. Southern Bluefin Tuna cases (New
Zealand v. Japan; Australia v. Japan), Case Nos. 3 & 4, Order of 27 August 1999, 3 ITLOS
Rep. 280.
72 Jon M. Van Dyke & Gerald W. Berkley, Redressing Human Rights Abuses, (19911992)
20 Denver Journal of International Law and Policy: 244, 266.
73 Jon M. Van Dyke, The Pacific Judicial Conference: Strengthening the Independent judiciary and the Rule of Law in the Pacific, (2009) 22 Western Legal History: 127 (providing a historical review and analysis of such efforts, in many of which Jon himself was
actively involved).
74 Jon M. Van Dyke, Judge Shigeru Oda and Maritime Boundary Delimitation, in Nisuke
Ando, E. McWhinney, & Rdiger Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda,
Volume 2, (The Hague: Kluwer, 2002), 1,1971,203.
48
harry n. scheiber
for his dedication to careful, scholarly analysis in constructing the historical and
juridical foundation of his ICJ opinions. He placed his fellow judges and the field
in his debt, Jon stated, for the way in which he offered constructive criticism
of colleagues views, helping to clarify the issues before them; his opinion on
those issues had to be taken into account, even if they did not prevail. In this
regard, Judge Oda assumed the important role of being the conscience of the
ICJ in...boundary cases, Jon stated, and thus played the role of the canary in
the mine shaft, providing warnings when his colleagues on the ICJ have strayed
too far from the moorings of traditional customary law.75
Jon Van Dyke also played the indispensable role of the canary in the mine
shaft. Judge Oda sounded the alarm when he believed his court was betraying
the established principles and rules of customary lawlaw in the mode that
Professor Sohn had announced could no longer be legitimately sustained. Jon
sounded the alarm when, instead, he believed that progress toward humane
goals and rule of law was being blocked and impaired by misguided orthodoxies.
Respect for, and adherence, when appropriate, to the inherited doctrines and the
limited jurisdictions and structures of inherited institutions, were not scorned
or abandoned by Jon. But his legacy to legal scholarship was to raise challenges;
he called on his students and his colleagues to look forward, instead of routinely
giving to the stability of law, so valued by conservatives, priority over what he
regarded as paramount humane values. The challenges he poses for us will long
be heeded, just as respect for his learning will be enduring, and the memory of
his friendship will long be treasured in all the many circles in which he was so
illustrious a presence.
75 Ibid., 1,197 (emphasis added).
PART one
ON THE LIMITS OF MARITIME JURISDICTION
CHAPTER one
The Limits of Maritime Jurisdiction
Ivan Shearer*
Introduction
The limits of maritime jurisdiction, and the conditions of its exercise, have been
of central importance in the development of the international law of the sea since
its beginnings in the 17th century. It remains of crucial importance today, following the codification of the law in the United Nations Convention on the Law
of the Sea, 1982 (LOSC). Instances continue to arise of assertions of jurisdiction
which are challenged by some other States as contrary to the Convention or customary international law.
The word jurisdiction in the English language is derived via French from the
Latin jurisdictio, meaning the power of administration of justice. It was therefore
not quite apt in the context of the history of the law of the sea, where a distinction was drawn between dominium (ownership) and imperium (the power to
assert control). It was this distinction that was emphasised by the earliest writers
on international law, and it remains valid to this day as an explanation of the
tensions to be observed in the various contemporary forms of the assertion of
sovereignty and jurisdiction, in the modern understanding of the latter word.
The Third United Nations Conference on the Law of the Sea, 19731982
(UNCLOS III) saw an attempt to reconcile claims to both sovereignty (dominium)
and jurisdiction (imperium) with traditional freedoms of the sea in a variety of
contexts. Clear examples of the distinction are the sovereignty of a coastal State
over its territorial sea, and the extension of its breadth to 12 nautical miles, and
the rights of a State in its exclusive economic zone, which are sovereign in relation to the natural resources of the zone but jurisdictional in relation to other
uses. A preoccupation during UNCLOS III, and continuing thereafter, has been
with the phenomenon of creeping jurisdiction which has sometimes related to
* Adjunct Professor of Law, University of South Australia, Adelaide; Emeritus Professor of
Law, University of Sydney and University of New South Wales, Australia.
52
ivan shearer
sovereignty claims beyond 12 nautical miles, but more often to expanded notions
of jurisdiction, in the true sense of the term, as for example an assertion of a
right to defend national security concerns in the contiguous zone, or even in the
exclusive economic zone.
Disputes continue to exist regarding the interpretation and application of the
LOSC, where the need to achieve consensus at UNCLOS III sometimes resulted in
ambiguous provisions designed to paper over the cracks of unresolved disagreements. Some of these issues are covered in contributions to this volume devoted
to baselines, the regime of islands (including archipelagos), polar waters, and
the limits of the continental shelf. Other issues arise under instruments adopted
since the LOSC, such as those relating to the regime of deep sea bed mining, the
regulation of fisheries in the high seas, and the maritime aspects of countering
the proliferation of weapons of mass destruction, and people-smuggling.
All these issues essentially engage the contest between claims of national sovereignty or jurisdiction and the traditional principles of the freedoms of commerce and navigation in international waters. In this broad aspect, the discourse
of the 21st century is not unlike that of preceding centuries.
The Historical Background
The foundations of jurisdiction in the law of the sea have been well explained by
OConnell in his treatise The International Law of the Sea.1 He states:
In the doctrine that became established by 1700, the power to rule (imperium) and
the ownership of the sea (dominium) coalesced in a single criterion of jurisdiction,
which dominated juristic thought for the next two hundred and fifty years. According
to this view of the matter, imperium and dominium could only exist in conjunction, so
that the power to rule and to legislate, which is the power of imperium, could extend
only so far as the ruler and legislator possessed dominium, or the rights of an owner.
It followed from this that foreign ships were beyond the grasp of authority of the
coastal State when outside the boundaries of its territory. The sea, therefore, would
be either totally mare liberum or totally mare clausum, and the intermediate situation
where the coastal State would have mere jurisdiction would be inconceivable.
It is to be noted in the above extract that jurisdiction was regarded as being
excluded over foreign ships beyond the limits of national sovereignty but not
over national ships as to which the national State had undoubted jurisdiction
anywhere. Whether this was by way of analogy to the personal jurisdiction principle of international law applicable to nationals or pursuant to the then prevailing notion of ships as floating portions of national territory was never entirely
1 Daniel P. OConnell (edited by Ivan A. Shearer), The International Law of the Sea, Volume 1
(Oxford: Clarendon Press, 198284): Chapter 1, especially 1418.
the limits of maritime jurisdiction
53
clear. English Admiralty jurisdiction had long applied to British subjects anywhere at sea, and even extended to British subjects aboard foreign vessels, but
not to foreign subjects aboard foreign vessels (which was the reason why the
German captain of a German ship which collided with a British ship in waters
off the English coastat a place not regarded as territorial waterscould not be
prosecuted for manslaughter in the English courts).2 The influence of this historical background is evident to this day in considering the provisions of the United
Nations Convention on the Law of the Sea, 1982 (LOSC),3 especially in the provisions regarding the enforcement of national laws respecting the protection of the
marine environment.4
As noted by OConnell, the law of the sea remained relatively stable until the
middle of the twentieth century. The codification efforts of private organisations
in the 1920s and the Hague Codification Conference of 1930 were largely fixated
on the extent of territorial waters and did not deal to any great extent with larger
issues of sovereignty or jurisdiction.
A change occurred in 1945 that put issues of sovereignty and jurisdiction
squarely into question, and prompted the development of their conceptual distinction. In what was later termed The Truman Proclamation, the United States
laid claim to the natural resources of the seabed and subsoil of the continental shelf as appertaining to the United States, subject to its jurisdiction and
control.5 It was made clear that this claim did not affect the status of the superjacent waters. Claims by some other States following this precedent, especially
by certain Latin American States, did not in like terms exclude the superjacent
waters from the extent of their claims, and thus were considered to be tantamount to assertions of sovereignty.
Claims of this latter kind, which posed a threat to the traditional freedoms of
the high seas, were carefully considered, among other issues, by the UN International Law Commission, which began its study of the law of the sea in 1949.6 In
its draft articles on the continental shelf, presented to the United Nations in 1956,
the Commission described the rights of coastal States to the continental shelf
appurtenant to its territory as sovereign rights rather than sovereignty. This
term was designed to emphasise, on the one hand, that the claim to a continental
2 R. v. Keyn (The Franconia) (1876) L.R. 2 Ex.D 63. The jurisdictional gap was soon filled
by the passage of the Territorial Waters Jurisdiction Act, 1878 (41&42 Vict. c. 73).
3 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
4 Ibid., Articles 212220.
5 Proclamation of 28 September 1945, American Journal of International Law, Special Supplement, 40 (1946): 45.
6 James Harrison, Making the Law of the Sea (Cambridge: Cambridge University Press,
2011), 3134.
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ivan shearer
shelf was a right inherent in the sovereignty that a State possessed over its land
territory applied to the natural prolongation of that territory under the sea, but
on the other hand, was not fully sovereign in that title to the superjacent waters
and airspace would not thereby be affected. This conclusion was endorsed by
the subsequent diplomatic conference that adopted the Geneva Convention
on the Continental Shelf, 1957 (Continental Shelf Convention),7 where the rights
of a coastal State over its continental shelf were defined as sovereign rights for
the purpose of exploring and exploiting it.8 The point was further stressed by the
provision allowing States to lay submarine cables and pipelines across the continental shelves of other States.9 The distinction between sovereignty and jurisdiction was also reflected in the provisions relating to the right of the coastal State
to construct installations on its continental shelf for the exploration and exploitation of its natural resources, such as oil wells, and to establish safety zones around
those installations. Such installations and devices, though under the jurisdiction
of the coastal State, do not possess the status of islands. They have no territorial
sea of their own, and their presence does not affect the delimitation of the territorial sea of the coastal State.10
Other References to Jurisdiction in the 1958 Geneva Conventions
Apart from the crucial distinction between sovereignty and jurisdiction made in
the Continental Shelf Convention, it became necessary in the other Geneva Conventions of 1958 to define and limit coastal State powers of jurisdiction in various
other maritime contexts.
The Geneva Convention on the Territorial Sea and Contiguous Zone11 (Territorial
Sea Convention), finally consolidated the regime of innocent passage in the territorial sea, which does not have such lengthy support in the history of the law
of the sea as some have supposed.12 In previous centuries conflicting theories
abounded, some based on a property theory of the territorial sea (dominium) and
some on a police theory (imperium). The cannon-shot rule for measuring the territorial sea supposed that a coastal State might exclude foreign warships from its
territorial sea in order to protect its neutrality. But by the end of the 19th century
it was commonly accepted that, in general, coastal States should allow foreign
ships a right of innocent passage through their waters for the purpose of transit.
7 Convention on the Continental Shelf, opened for signature 29 April 1958, entered into
force 10 June 1964, 499 UNTS 311 (Continental Shelf Convention).
8 Ibid., Articles 2, 3.
9 Ibid., Article 4, adopted also in LOSC, Article 79.
10 Continental Shelf Convention, article 5(4); LOSC, Articles 56, 60, 80.
11 Convention on the Territorial Sea and the Contiguous Zone, opened for signature 29 April
1958, entered into force 10 September 1964, 516 UNTS 205.
12 OConnell, The International Law of the Sea, 260268.
the limits of maritime jurisdiction
55
The term innocent comes from the Latin word innoxium, meaning unable to
harm, that is, posing no form of threat to the security of the coastal State.
Some States to this day refuse to admit a right of innocent passage to foreign
warships claiming that they, by their very nature, are non-innocent (or not unable
to harm.) However, this claim is inconsistent with the provisions of the Territorial
Sea Convention which distinguish warships from other ships only with respect
to the quite separate jurisdictional issue of sovereign immunity, which bars the
right of coastal States to punish non-compliance with coastal State regulations
as against warships and other State-owned ships engaged in non-commercial
activities.13
The uneasy reconciliation of the sovereignty in and over the territorial sea
vested in the coastal State with the right of innocent passage by other States
over those waters (but not under them or through the airspace over them) is
reflected in the detailed provisions regarding innocent passage in the Territorial
Sea Convention. These provisions are consistent with the theory that sovereignty
and jurisdiction in territorial waters coincide, but that the coastal State concedes
a right of innocent passage on a conditional basis, which it is able to withdraw
for due cause. The conditions of passage on which the coastal State agrees not
to exercise the rights of jurisdiction inherent in sovereignty include the stated
activities of a foreign vessel in passage that would constitute an abuse of the
right of innocent passage or represent a threat to the security of the coastal State.
The right of the coastal State to exercise its sovereignty is clearly retained in the
provision that it may take the necessary steps in its territorial sea to prevent passage which is not innocent.14 Moreover, it is allowable to suspend temporarily
the right of innocent passage in specified areas of its territorial sea if essential
for the protection of its security, unless those territorial waters constitute straits
which are used for international navigation.15
The concessive and conditional nature of innocent passage is clearly seen in
the provisions relating to the exercise of criminal and civil jurisdiction over
foreign ships engaged in innocent passage. Article 19 of the Territorial Sea Convention states that the criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the territorial sea, except in
the circumstances expressly allowed by the article. In other words, there is no
prohibition, merely an exhortation. The non-mandatory word should is also
used in Article 20 regarding the exercise of civil jurisdiction.
However, it cannot be asserted on the basis of these provisions that a right of
innocent passage rests on uncertain foundations. The regime of innocent passage under the Territorial Sea Convention, and now under the LOSC where those
13 Territorial Sea Convention, Article 23.
14 Ibid., Article 16(1).
15 Ibid., Articles 16(2) and (3).
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provisions were repeated, have become entrenched through acceptance as binding conventional law and through State practice as customary international law.
The institution of the contiguous zone, as a zone contiguous to the territorial
sea in which the coastal State may exercise certain powers, had historical antecedents in previous centuries, including the British Hovering Acts of the 19th
century. The Territorial Sea Convention recognises it clearly as a zone of jurisdiction unsupported by sovereignty. The Territorial Sea Convention, Article 24, recognises the contiguous zone as an area of sea within which the coastal State may
exercise the control necessary to prevent (incoming ships) and punish (outgoing
ships) infringements of its customs, fiscal, immigration or sanitary regulations
within its territory or territorial sea. In other words, it is a police zone, giving the
coastal State extra sea room needed to protect its sovereign interests on land and
in its territorial sea. Some States purport in their legislation or practice to include
national security as a matter to which those police powers extend in the contiguous zone, but these claims have been resisted.16 These claims will be discussed
later in relation to the Impeccable incident.
The Geneva Convention on the High Seas, 1958,17 (High Seas Convention) codified customary international law which regarded the high seas as incapable of
appropriation by any State and as free for the commerce and navigation of all
States. In particular, it is forbidden to States to assert jurisdiction on the high
seas against foreign vessels except on suspicion of piracy or engaging in the slave
trade.18 A jurisdictional provision of special interest was included in Article 11,
which in effect overruled the decision of the Permanent Court of International
Justice in the case of the SS Lotus.19 In that case the Court came perilously close
to endorsing the already discredited theory of the floating island theory of ships
by conceding to Turkey the right to prosecute for manslaughter the officer of the
watch of a French ship arising out of a collision with a Turkish ship on the high
seas. Article 11 departed from that decision by stating that in such cases proceedings could only be instituted by the authorities of the flag State of the allegedly
delinquent vessel or of the State of the nationality of the alleged offender.
The failure of the First and Second Geneva Conferences on the Law of the
Sea, 1958/1960 (UNCLOS I and UNCLOS II) to agree on a specified breadth of
the territorial sea led to a period between then and the convening of the Third
United Nations Conference on the Law of the Sea in 1973 (UNCLOS III) in which
16 A total of 18 States make such claims. For details see J. Ashley Roach and Robert W.
Smith, United States Responses to Excessive Maritime Claims, 2nd edition (Leiden: Martinus Nijhoff Publishers, 1996), 166172.
17 Convention on the High Seas, opened for signature 29 April 1958, entered into force
20 September 1962, 450 UNTS 82 (High Seas Convention).
18 Ibid., Article 22. LOSC absurdly added the category of unauthorised broadcasting to
the exceptions: Article 110.
19 The Lotus (France/Turkey) PCIJ Series A, No. 10 (1927).
the limits of maritime jurisdiction
57
State practice became inconsistent, with many States adhering to the 3 nautical
miles limit, but some claiming 6 nautical miles, or 12 nautical miles, or in a few
instances making more extensive claims. Even some States adhering to the 3 nautical miles limit began to make claims to a fishery jurisdiction beyond the limits
of territorial waters, in which they claimed for themselves a right of jurisdiction
to regulate fisheries for the benefit of their own fishing industry and in the interests of conservation. This trend was recognised, but only to a limit of 12 nautical milesnot 50 nautical miles as claimed by Icelandby the International
Court of Justice in the Fisheries Jurisdiction Case (United Kingdom and Germany v.
Iceland) in 1974. The Court, however, preferred to decide that dispute on the
basis of historic rights of the UK vis--vis Iceland.20 Notwithstanding that decision, many States proceeded to claim fisheries jurisdiction to as much as 200
nautical miles, which was one of the main factors prompting demands for a new
UN convention on the law of the sea.
The United Nations Convention on the Law of the Sea, 1982 (LOSC)
It is perhaps not noted often enough that UNCLOS III was as much, or more,
the work of diplomats and politicians than of lawyers. UNCLOS I was based
on the work of the International Law Commission and thus of an expert body
of distinguished international lawyers. The Commissions deliberations over six
years preceding the final draft articles of 1956 are richly documented and provide evaluations of State practice and doctrinal considerations essential to an
illumination of the texts. There was no such involvement of the International
Law Commission in the work of UNCLOS III. Moreover, there are no travaux
preparatoires of a comparable kind documenting that conference. The intention
of UNCLOS III to make new law, where deemed to be appropriate, is evident
from the Preamble of the resulting Convention in such passages as that it should
contribute to the realisation of a just and equitable international economic order
which takes into account the interests and needs of mankind as a whole and,
in particular, the special interests and needs of developing countries, whether
coastal or land-locked.
Although the doctrinally rigorous provisions of the 1958 Conventions were
largely incorporated in the LOSC, the other provisions of the LOSC designed to
give effect to the stated aims of that Convention are thus more open to doubt and
interpretation. In this design, jurisdiction assumed a prominent role.
20 Fisheries Jurisdiction (United Kingdom v Iceland) (1974) ICJ Reports 3; Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (1974) ICJ Reports, 175.
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The Exclusive Economic Zone (EEZ)
The very name exclusive economic zone (EEZ) is misleading. The word exclusive was retained in an act of political deference to those States which, prior to the
Conference, had claimed or proposed a truly exclusive jurisdiction over natural
resources, including living resources, to 200 nautical miles, in terms tantamount
to an expanded claim to sovereignty and thus to a 200 nautical mile territorial
sea in all but name. These claims were heavily qualified in Part V of the LOSC,
but not altogether rebutted. This is because the rights of a coastal State in an EEZ
extending to 200 nautical miles from its coastal baselines are defined in Article
56 as sovereign rights, not merely as jurisdictional rights.21 That term, as noted
earlier, was applied in the Continental Shelf Convention, to describe the rights of
a coastal State to the seabed constituting a continental shelf in the geographical
sense, rights falling just short of sovereignty as such. It was thought necessary
to adopt this terminology because the EEZ was defined as embracing both the
seabed and the superjacent waters and thus as subsuming the continental shelf
within it. Although the institution and regime of the continental shelf is retained
in Part VI, and the EEZ rights thereto are made subject to that Part by Article
56(3), the fact remains that the Convention has done fundamental violence to
the previously clearly defined distinction between the seabed and subsoil, on the
one hand, and the superjacent waters (albeit confined to the natural resources of
those waters) on the other. Indeed, States having a narrower natural continental shelf than 200 nautical miles are now entitled to claim sovereign rights over
21 Article 56: Rights, jurisdiction and duties of the coastal State in the exclusive economic
zone.
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving
and managing the natural resources, whether living or non-living, of the
waters superjacent to the sea-bed and of the sea-bed and its subsoil, and
with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents
and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention
with regard to:
(i) the establishment and use of artificial islands, installations and
structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the
exclusive economic zone, the coastal State shall have due regard to the rights
and duties of other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the sea-bed and subsoil shall be
exercised in accordance with Part VI.
the limits of maritime jurisdiction
59
the deep sea bed to 200 nautical miles. They are thus invested with a juridical
(or fictitious) continental shelf not warranted by nature and thus not existing in
fact. The term jurisdiction in Article 56 is clearly separated from the sovereign
rights basis of attribution of an EEZ by being confined to powers with respect to
artificial islands and structures, marine scientific research and the protection and
preservation of the marine environment.
What was thus given by one hand was partly clawed back by the other. Article
58(2) states that Articles 88 to 115 and other pertinent rules of international
law apply to the exclusive economic zone in so far as they are not incompatible
with this Part. These articles are those relating to the regime of the high seas.
Part V is thus open to two fundamentally opposed interpretations. One interpretation is that the EEZ consists of the high seas adjacent to a coastal State in which
that State has certain rights in derogation of high seas freedoms. The EEZ rights
should be interpreted strictly since they operate in derogation of those freedoms.
The other interpretation is that, as Article 55 states, the EEZ is a specific legal
regime, sui generis and sui juris, and thus no interpretative presumptions apply.22
Moreover, by defining the rights of a coastal State in its EEZ as sovereign rights
to explore and exploit its natural resources, without distinction between the seabed and the superjacent water column, a regime has been created that is heavily
weighted in favour of coastal State rights. That the latter view was taken by the
Conference, and that the juridical nature of the zone was novel, are evidenced by
what may be regarded as the most meta-legal article of the entire Convention:
Article 59. Basis for the resolution of conflicts regarding the attribution of rights and
jurisdiction in the exclusive economic zone. In cases where this Convention does
not attribute rights or jurisdiction to the coastal State or to other States within the
exclusive economic zone, and a conflict arises between the interests of the coastal
State and any other State or States, the conflict should be resolved on the basis of
equity and in the light of all the relevant circumstances, taking into account the
respective importance of the interests involved to the parties as well as to the international community as a whole.
This is not the kind of language that could have been drafted by the International
Law Commission, nor indeed could the Commission have devised such a doctrinally confused regime.
One thing is, however, clear. In so far as it concerns the utilisation of the living
resources of the EEZ (Article 62), the EEZ gives preferential, not exclusive, rights
to the coastal State. A duty is imposed on the coastal State to determine the total
allowable catch of the living resources in its zone23 and to make the surplus of
that quantity over its determined national capacity to harvest that catch available
22 See further the analysis by James Kraska, Maritime Power and the Law of the Sea (New
York: Oxford University Press, 2011), 232247.
23 LOSC, Article 61.
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to other States.24 These determinations are not, however, subject to challenge by
other States except by way of conciliation procedures where the coastal State has
arbitrarily refused to make such determinations.25
The Impeccable Incident, 2009
The ambiguities attending the juridical nature of the EEZ have led to disputes
regarding the exercise of high seas freedoms in EEZs. In particular, these concern the conduct of military exercises, including surveillance activities by surface
and underwater vessels and by aircraft. Chinese commentators, for example, have
argued that surveillance activities by U.S. vessels and aircraft in Chinas EEZ are
contrary to the provisions of Article 88 of the Convention, incorporated by reference within the regime of the EEZ, stating that The high seas shall be reserved
for peaceful purposes. That provision did not appear in the High Seas Convention.
Does this argument suggest that the regime of the high seas applicable within the
EEZ has a different quality from that applicable to the high seas beyond national
jurisdiction? It could hardly be that military activities, other than those contrary
to the UN Charter or the law of armed conflict, are unlawful anywhere on the
high seas.
The most recent significant incident involving China and the United States
in the South China Sea occurred on 9 March 2009 when the USNS Impeccable,
an unarmed catamaran crewed mostly by civilians but operated by the Military
Sealift Command, was confronted by Chinese vessels 75 nautical miles south of
Hainan Island. Impeccable was engaged in deploying passive and active low frequency sonar arrays to detect and track undersea movements of Chinese submarines. Impeccable was ordered to clear the area by a small fleet of Chinese
vessels, none of them large warships. It was clear that a major confrontation was
not sought by China. A similar vessel had earlier been subjected to fly-bys by
Chinese maritime surveillance aircraft some 125 nautical miles off the coast of
the Yellow Sea. There have been other such incidents, including notably the EPIII
incident in 2001, where a U.S. reconnaissance aircraft collided with a Chinese
military aircraft near Hainan.26 It is clear that China regards surveillance activities by foreign warships and aircraft as incompatible with the high seas freedoms
applicable in its EEZ, but the precise legal basis for its attitude has not been
officially articulated.27
24 Ibid., Article 62.
25 Ibid., Article 297(3).
26 Ivan Shearer, Ocean Yearbook 17 (Chicago: University of Chicago Press, 2003),
548562.
27 For an unofficial Chinese view see Ren Xiaofeng and Cheng Xishong, A Chinese Perspective, Marine Policy, 29 (2005): 139; Kraska, Maritime Power and the Law of the Sea,
the limits of maritime jurisdiction
61
The Proliferation Security Initiative
Another important area of interplay between sovereignty and jurisdiction is the
Proliferation Security Initiative (PSI), launched by U.S. President George W. Bush
in 2003. The initiative was prompted by the So San incident of December 2002 in
which a North Korean freighter was intercepted in the Arabian Sea carrying Scud
missiles hidden under bags of cement. Yemen claimed ownership. The purpose
of this Scheme, which is not a treaty or otherwise binding arrangement, is to
exchange information on suspected proliferation of missiles and weapons of mass
destruction (WMDs), to review and strengthen national laws, and to undertake
some specific interdiction measures at sea in accordance with agreed Interdiction
Principles.28 In addition to the 15 countries originally participating, there are now
more than 100 participants.29 Respectful of the provisions of Article 110 of LOSC,
which does not permit boarding of foreign vessels on the high seas except in the
cases specified in that article, the Scheme relies on the consent of the flag State
to permit boarding where there is reasonable cause to suspect that the ship is
carrying missiles or WMDs. Blanket consent can be given in advance, or ad hoc as
the occasion arises. The Scheme was greatly strengthened by UN Security Council
Resolution 1874 (2009) which, acting under Chapter VII of the Charter, called
upon all States to inspect suspicious cargoes on the high seas with the consent
of the flag State, and in the event that the flag State does not consent, decided
that the flag State shall direct the vessel to an appropriate port for inspection.
China does not participate in the Scheme; it doubts its legal validity.30
Protection of the Marine Environment
Clear distinctions are drawn in the LOSC, between zones of sovereignty and
jurisdiction with regard to the application and enforcement of laws relating
to the protection of the marine environment. The right of coastal States to regulate the marine environment in their territorial seas did not need to be stated in
the Convention, being an attribute of sovereignty. However, in so far as the right
of innocent passage might be affected, Article 21 provides that such laws shall
not apply to the design, construction, manning or equipment of foreign ships
266. China asserts national security as an interest to be protected in its contiguous zone
(Roach and Smith, United States Responses to Excessive Maritime Claims, 167), but has
made no such claim in respect of its EEZ.
28 See, http://www.state.gov./t/np/rls/fs/23764.htm.
29 See, U.S. Department of State, Proliferation Security Initiative, http://www.state.gov/t/
isn/c10390.htm.
30 Michael Byers, Proliferation Security Initiative (PSI), in Rdiger Wolfrum (ed.), Max
Planck Encyclopaedia of Public International Law (Oxford: Oxford University Press,
2008) (www.mpepil.com).
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unless giving effect to generally accepted rules or standards. By this is meant,
principally, the conventions of the International Maritime Organisation (IMO).
Moreover, by virtue of Article 24, the application of such laws by the coastal State
shall not have the practical effect of denying or impairing the right of innocent
passage. The coastal State is given a specific right to enforce its environmental
laws against ships in passage by Article 25, which states that the coastal State
may take the necessary steps in its territorial sea to prevent passage which is not
innocent. Any act of wilful and serious pollution contrary to this Convention
is a prejudicial activity under Article 19(2)(h). The sovereign right of a coastal
State to adopt laws relating to pollution from foreign vessels is also recognised
in Article 211(4).
In its EEZ the coastal State has jurisdiction (rather than sovereign rights)
with regard to the protection and preservation of the marine environment, subject to the other provisions of the Convention.31 The right of enforcement of
coastal State laws relating to the EEZ stated in Article 73 is, however, in terms
limited to those laws adopted in exercise of the sovereign rights of the coastal
State, not merely its jurisdiction. Thus, for the application and enforcement of
environmental laws in the EEZ, one needs to turn to Part XII of the LOSC. In
Article 211(5) it is provided that coastal States may in respect of their EEZs adopt
laws and regulations conforming to and giving effect to generally accepted rules
and standards established through the competent international organisation or
general diplomatic conference. This may be argued to support the residual high
seas character of the EEZ, in which the powers of the coastal State are limited in
the interests of high seas freedoms.
In relation to the enforcement of laws relating to the marine environment
generally, the structure of Section 6 of Part XII reveals a strong preference for
deference to the responsibilities of flag States, whose powers over their own flag
vessels are undoubted. Article 217 states those responsibilities in clear terms. It
is only in certain circumstances that non-flag States can assume jurisdiction to
arrest and punish offending vessels. So far as coastal State powers are concerned
in relation to foreign vessels, Article 220 is drafted in terms that allow for nonflag State interdiction in circumstances governed by the maritime zone where the
offence occurred and by the seriousness of the offence. Thus, where the offence
occurs in the territorial sea of a coastal State, that States sovereign powers are
practically unrestricted. Where the offence occurs within the EEZ, the coastal
State affected may only require the vessel to give information regarding its identity and port of registry, its next and last ports of call, and other information
required to establish whether a violation has occurred. However, the structure of
Article 220 then allows to the coastal State greater powers where there are clear
31 LOSC, Articles 56(1)(b)(iii) and (2).
the limits of maritime jurisdiction
63
grounds for believing that a violation has occurred resulting in a substantial discharge causing or threatening significant pollution of the marine environment.
In that case the coastal State may undertake physical inspection of the vessel but
only if the vessel has refused to give information or if the information supplied
is manifestly at variance with the evident factual situation. This is followed by
the most serious case, where there is clear objective evidence of a violation
causing major damage or threat of damage to the coastline or related interests
of the coastal State, when the coastal State may institute proceedings, including
detention of the delinquent vessel.
It might, incidentally, be noted in the wording of Article 220, that the difference between clear grounds for believing and clear objective evidence is itself
not altogether clear. Perhaps the real distinction lies in the degree of seriousness
of the damage threatened or caused.
Conclusion
This introduction has been able to survey just a few examples from the LOSC of
the interplay between concepts of sovereignty and jurisdiction.32 These are old
but necessary concepts, into which new wine has been poured in an effort to
achieve a global framework for the law of the sea. Notwithstanding the ambiguities and infelicities of the Convention, almost inevitable in the search for consensus among such a large group of Conference participants, the framework is here to
stay. Amendment is practically impossible. Pressure points have emerged, testing
those ambiguities or advancing novel doctrine. Contestable claims to baselines
and to various kinds of protection zones have been made.33 The regulation of
high seas fisheries, whaling (including so-called scientific whaling), the status
of Antarctic waters, and the situation in the South China Sea are particular cases
in point. In some cases the Convention can be supplemented by free-standing
agreements, such as the Fish Stocks Agreement, 1995.34 Other developments must
come incrementally and interstitially through State practice.
32 Recent extensive studies include Douglas Guilfoyle, Shipping Interdiction and the Law
of the Sea (Cambridge: Cambridge University Press, 2009); Rosemary Rayfuse, Non-Flag
State Enforcement in High Seas Fisheries (Leiden: Martinus Nijhoff Publishers, 2001).
33 Roach and Smith, United States Responses to Excessive Maritime Claims.
34 The United Nations Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened
for signature 4 December 1995, in force 11 December 2001 ILM, 34 (1995): 1542; Harrison, Making the Law of the Sea, 99113.
chapter TWO
The Territorialisation of the Exclusive Economic Zone:
A Requiem for the Remnants of the Freedom of the Seas?
Ian Townsend-Gault*
Introduction
In 1956, Professor Josef L. Kunz of the University of Ohio published a paper in
the American Journal of International Law, responding to the proliferation of
State claims to the continental shelf and the natural resources of its seabed and
subsoil.1 If this phraseology seems overly broad, referring as it does to claims to
the shelf, and then seabed and subsoil resources, this is because following the
Truman Proclamation of 1945,2 which was somewhat studied as to the precise
nature and extent of the rights being claimed therein, States which claimed to
follow the American lead were very much less restrained. There were claims,
sometimes expressed in terms of sovereignty, over the shelf and superjacent
waters. Alternatively, there were claims that sovereignty merely with respect to
the natural propagation of the landmass. For Professor Kunz, these developments
sounded the death knell of the Freedom of the Seas, an article of faith for international lawyers, as he reminded his readers, which dated back to the time of
Grotius.3
The present author encountered this paper as a law student, in the context of a
course on oil and gas law, and since this was at a British university, our focus was
* Director, Southeast Asian Legal Studies, Faculty of Law, University of British Columbia,
Canada.
1 Joseph L. Kunz, Continental Shelf and International Law: Confusion and Abuse, American Journal of International Law, 50 (1956): 828853.
2 Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources
of the Subsoil and Sea Bed of the Continental Shelf, September 28, 1945, 10 Federal Register
12303; 3 C.F.R. 19431948 Comp., 67; XIII Bulletin, Department of State, No. 327, September 30, 1945, 485; Whitemans Digest., vol. 4, 7567.
3 Hugo Grotius, De Mare Liberum (Ralph Magoffin translation) (Oxford: Oxford University
Press, 1916).
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almost exclusively on the North Sea. This was in the mid-1970s, when the Third
United Nations Conference on the Law of the Sea (UNCLOS III) was still meeting.
So far as we were concerned, the applicable rules of international law had been
codified and developed by the Convention on the Continental Shelf (Continental
Shelf Convention).4 We looked back to the Truman Proclamation, and traced the
development of state practice from then, through the First United Nations Conference on the Law of the Sea, to what was then the present day. Professor Kunzs
lament seemed rather quaint us, a lone figure bewailing and development which
had been endorsed, so far as we could see then, by the entire international community. A development, moreover, which had started to pay dividends for the
North Sea countries and beyond, and would of course transform the economy
of States such as Norway. This was no time to be harking back centuries, and
besides, wasnt it the case that the Freedom of the Seas as Grotius understood it
remained more or less intact?
One contemporary event which might have disturbed this complacent notion
was the fact that the 200 nautical mile exclusive fishing zone was in the process
of evolving from a preoccupation of a handful of countries of comparatively slight
geostrategic importance and into the mainstream of State practice, and hence
customary international law. Even as the arguments of the proponents of these
zones gathered steam, it appeared that the Freedom of the Seas, meaning unrestricted fisheries beyond territorial waters, might come at a hefty ecological price.
If one of the rationales for the doctrine of the continental shelf was the need for
control over resource activities, then who better to exercise this but the adjacent
coastal State, the same argument could be applied to living resource exploitation in the superjacent waters.5 The proposals for the exclusive economic zone
emanating from the Third Conference seemed a logical extension of such ways
of thinking.
One of the most powerful motivating factors that led to the calling of the Third
Conference was the need to place firm limits on the nature and extent of State
jurisdiction over maritime areas. By the same token, marine areas seaward of
those limits, and their resources, could not be claimed by any State. At the same
time, it was understood that despite its all-embracing title, the regime of the EEZ
allocated some rights to coastal States but left others untouched. Such rights were
governed, in other words, by what was left of the Freedom of the Seas. Like its
companion regime governing the continental shelf, with which it overlaps in large
part, the EEZ was seen primarily as one governing resource activities, although it
4 Convention on the Continental Shelf, opened for signature 29 April 1958, entered into
force 10 June 1964, 499 UNTS 311 (Continental Shelf Convention).
5 Mention should be made here of the companion Truman Proclamation issued on the
same day whereby The United States similarly claimed the right to designate fishery
conservation zones beyond its claimed territorial sea. The Proclamation is reprinted in
40 American Journal of International Law, Official Documents: 45.
the territorialisation of the exclusive economic zone
67
is true that the rights to control the generation of energy from the oceans, such
as by wave and tidal power also vests in the coastal State by virtue of Part V,
which also has the right to control marine scientific research, to construct artificial islands or place structures within the zone, while having a broad number of
responsibilities for the preservation and protection of the oceanic environment.
This characterisation is, however, increasingly under attack as some States claim
additional rights, such as that of granting or withholding permission for foreign
naval vessels to enter or carry out exercises in foreign EEZs, and the control of
marine hydrographic surveying.
This has been termed by some the increased territorialisation of the EEZ.6
This chapter examines the forces at play here, and considers whether or not such
rights are either implicit in the regime of the exclusive economic zone, or if they
can be seen as a logical development of existing rights. Alternatively, is an attempt
being made to develop a new rule of customary international law to complement
Part V of the United Nations Convention on the Law of the Sea (LOSC).7
The Burdenor Contributionof History
Professor Kunz inveighed against the emerging doctrine of the continental shelf
invoking history in support. One can perhaps follow his example in considering
the nature and extent of the regime of the EEZ, and that of the continental shelf
also. The term continental shelf was coined by geographer in 1896, and it so happened that the first hydrocarbon well drilled offshore followed two years later,
though not through the agency of the oil industry.8 That said, the oil industry was
not slow to follow this unlikely precedent, and techniques and technology were
refined in the comparatively amicable waters of Lago Maracaibo in Venezuela,
6 The issues arising here have been discussed by, inter alia, by Bernard Oxman, The
Territorial Temptation: A Siren Sea, 100 A.J.I.L., 830. See also, Michael D. Swaine and
M. Taylor Fravel, Chinas Asserted BehaviourPart Two: The Maritime Periphery, China
Leadership Monitor, No. 35, Summer 2011, 11; and, Peter Dutton and John Garofano,
High Sees Freedoms: China Undermines Maritime Law, Far Eastern Economic Review,
3 April 2009.
7 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3(LOSC).
8 The site was the coast of southern California. The well was drilled on a wooden platform built out from the shore by the members of a cult searching for natural gas which
they used first for ceremonial purposes, and then to supply the expanding needs of the
growing city of Santa Barbara close by. The cultists had originally built shrines around
fissure in the rocks from which natural gas seeped, which were then set alight as the
equivalent of holy flames. But as membership of the cult grewnot to mention
the population of Santa Barbaraas is so often the case, the mind started to exceed
supply, and new sources of gas had to be found. In its way, this story is a metaphor for
the development of the oil industry as a whole.
68
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and Lake Pontchartrain in Louisiana, as well as the shallow near-shore waters of
the Gulf of Mexico.
Marine living resources offered a different narrative, however. In the years
before the First World War, governments such as Spain,9 Portugal,10 and, in
1916, Argentina, voiced acute concerns over the depredations of fish stocks
in the waters superjacent to their continental shelves. There were proposals that
coastal States should equip themselves with conservation jurisdiction over such
waters, but these initiatives were rejected out of hand by the major maritime
States. There matters appeared to rest until the Hague codification conferences,
where they were considered by the Committee of Experts charged with preparatory work for the League of Nations Codification Conference, which met at The
Hague in 1930. Prior to the Conference, participating States were asked to consider possible extensions of State jurisdiction beyond the then generally accepted,
if uncodified, limits. Once again, the States which had manifested fishery conservation concerns during the First World War were eager to encourage support for
their vision of expanded jurisdiction. A sub-committee was established to consider rules for the Exploitation of the Resources of the Seas. Its sole member was
Professor Jose Leon Suarez of Argentina. In his Report, Suarez effectively became
the first authority to formulate continental shelf theory in the terms, which would
appear almost two decades later in the Proclamation issued by President Truman
in 1945. Suarez, in his Report, remarked:
there is no stable, permanent and convenient solution (to the problems of jurisdiction over living resources in waters beyond the territorial sea) except to adopt the
rule for the continental shelf with some modifications according to circumstance.11
9 The Spanish proposal was outlined by de Buren, later to become Director General of
Spanish Fisheries. See League of Nations Document C.196.N70.1927v (1927, 63).
10 The significance of the continental shelf was first manifested in connection with a proposal for increased State jurisdiction over the natural resources of offshore areas in 1910.
In that year the government of Portugal introduced legislation for the conservation
of the fishery in waters landward of the 100 fathom isobath adjacent to that country,
by prohibiting fishing from steam-powered vessels within that area: Decree Regulating
Fishing by Steam Vessels, November 9, 1910, reproduced in translation (by the United
Nations Secretariat) in Francesco Durante and Walter Rodino, Western Europe and the
Development of the Law of the Sea, Volume III (Dobbs Ferry: Oceana Publications, 1980).
An examination of a chart of the Portuguese offshore area shows that the 100fathom
isobath rarely exceeds forty statute miles from the coast, but is generally beyond the
three-mile limit. The 100 fathom or 200 metre mark can be taken as marking the edge
of the continental shelf. The isobath markings seaward of 100 fathoms (on a modern
chart marked in metres) are 500, 1,000 and 3,000 metres, showing the much more pronounced shelving typical of the continental slope. The Decree itself refers to activities
in waters superjacent to our continental shelf (emphasis added).
11 Jose Leon Suarez, Report on the Exploitation of the Products of the Sea, December 8,
1925.
the territorialisation of the exclusive economic zone
69
Suarezs concept was, of course, somewhat more limited. In his Report, he discussed the possibility of calling an international conference which would debate
the creation of reserved zones, within which fishing would be regulated in the
interests of conservation. There was no call for an extension of state jurisdiction
per se. The proposed was dropped because its feasibility was questioned.12
In the meantime, the oil and gas industry was perfecting techniques and technology in the offshore, and was ready to move beyond the comparatively shallow
waters of the territorial sea, then set at three nautical miles. There was of course
no reason why they should not have done so, except for the fact that, had a company made a major discovery, it was not possible for any State to guarantee its
exclusive rights with respect to that find. Accordingly, there was absolutely no
incentive for a company to invest in a major exploration effort beyond the limits
of the territorial sea, only to find that other companies would share in the exploitation of the deposit, and there was nothing that the finder could do to prevent
them. As the Second World War came to a close, various commercial and legal
issues came to a head in the United States, now emerging as the worlds leading industrial power, and with energy requirements to match. The oil industry
had long known that there were significant deposits of oil and gas in the subsoil
of the continental shelf beyond the limits of the territorial sea, but it made no
sense to make significant investments in exploration if there was no guarantee
of exclusive rights of production. As illustration, in 1921, the State Department
was approached by an oil company asking for a license to exploit an interesting
deposit in the Gulf of Mexico, outside US territorial waters. Washing regretted
that it was unable to do so: the company didnt require a license, but the point
was, it had no security over the deposit. If other companies chose to establish
installations nearby and drill into and producing from it, nothing could be done
to stop them.
This inability to obtain secure legal titleexclusive rightswas very frustrating to an industry aware of the production potential beyond the 3 nautical mile
limit. It was therefore suggested both to Washington and to the governments of
coastal states of the US that there had to be a jurisdictional shift whereby companies could invest with security, knowing that they would have exclusive rights
to produce when they made a discovery. Knowing that at least one of the states
was interested in extending its jurisdiction beyond the territorial sea, the federal
government of the United States launched what amounted to a jurisdictional preemptive strike in the shape of the Truman Proclamation of September 1945.
This Proclamation is of absorbing interest both for what it did and what it
did not say. It made a rational case for the extension of coastal State jurisdiction with respect to the petroleum resources of the continental shelf. In essence,
the argument was as follows: the resources are there, the world needs access to
12 See, for example the British reply, 11 November 1926 (Records, 146).
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them, and the only way of guaranteeing their proper exploitation is through the
extension of jurisdiction and control on the part of the adjacent coastal State.
It helps, of course, if one regards the continental shelf as the extension of the
landmassland that simply happens to be covered by ocean. The geological connection between the continental shelf and the landmass was emphasised and
used as justification for this extension of jurisdiction which, in 1945, was a radical
departure from the juridical status quo which, as Professor Kunz was to bemoan,
had been in existence for hundreds of years.
Those States which had advocated an extension of maritime jurisdiction
beyond the three nautical mile limit welcomed the Truman Proclamation with
much enthusiasm. The first such declaration was made by Mexico,13 within a
month of the Truman Proclamation. This took the form of a declaration of intent,
paving the way for subsequent legislation or regulations, on the basis of a claim to
the whole of the continental platform or shelf14 (adjacent to the Mexican coast)
and to each and all of the natural resources existing there, and that Mexico is
taking steps to supervise, utilize and control the closed fishing zones necessary
for the conservation of this source of well-being. The instrument recites the
rationale for the two US Proclamations as a justification for the claim now being
made (conservation, the dangers of imprudent utilisation), but it should be noted
that the reference to control of the fishery is ambiguous enough to permit any
number of interpretations, ranging from control to ownership. The United States
was to object to some of the claims, which claimed descent from the Presidential
Proclamations of September 28, 1945. It did not do so in the Mexican case.
The doctrine of the continental shelf was well launched and on its way to
becoming a rule of customary international law when it was codified and developed in the Continental Shelf Convention. The essence of that regime is clarified
and amplified in Part VI of the LOSC. Continental shelf rights have been elevated
to an extraordinary status in international law: they are deemed to be inherent,
and do not depend on proclamation, claim, and the like.15 This is of course our
quasi-territorial point of view, justified on the grounds that the continental shelf
is a natural extension of the landmass, and coastal State rights arise with respect
to it accordingly. It would have been easy, and arguably logical, for the shelf (and
its resources) to be subject to the absolute sovereignty of the adjacent State, but
there were sound reasons for trying to prevent this, as will be seen.
In the current context, however, attention must now shift to claims with
respect to the water column beyond the limits of the territorial sea. The concerns
of countries such as Spain, Portugal and Argentina have not abated since their
13 Presidential Declaration with respect to the Continental Shelf, October 29, 1945, in ST/
LEG/SER.B/1, 13.
14 Defined in an earlier paragraph of the Declaration as the submarine area landward of
the 200 metre isobath.
15 Continental Shelf Convention, article 3; LOSC, article 78.
the territorialisation of the exclusive economic zone
71
abortive efforts to secure jurisdiction in the years before the First World War.
Indeed, other countries now shared these concerns: the Truman Proclamation
prompted a decree from the government of Mexico with respect to the continental shelf, and the superjacent water column, an act which was claimed to follow
where the United States had led. While the US had led, to an extent it had done
so in vain as subsequent claims failed to follow the Truman Proclamation model,
instead claiming expansive rights not restricted to jurisdiction over the seabed
resources of the continental shelf. Washington promptly objected to the water
column claim, as it would with respect to similar declarations on the part of other
States, which followed the Mexican example without much loss of time.
Thus, by the time the First United Nations Conference on the Law of the Sea
was convened in Geneva in March 1958, State practice with respect to claims to
offshore jurisdiction beyond the limits of the territorial sea did not really display
the requisite degree of consistency and uniformity required for the identification
of a rule of customary international lawexcept, perhaps, for the proposition
that coastal States rights, the nature and extent to which were open to debate,
certainly extended seaward of the generally conceived three nautical mile limit,
and included exclusive rights to the natural resources of the seabed and subsoil
of the continental shelf.
Those countries wishing to claim fisheries jurisdiction beyond the territorial
sea came to the First Conference armed with no shortage of evidence that conservation and overfishing were becoming serious issues. As we know, these concerns
were either ignored or given the nearest lip service by countries that did not
wish to see any curtailment of the activities of their fishers. Iceland in particular
was dismayed at the seeming indifference of other countries to what it saw as
a threat to its very survival as a country.16 Deciding that conservation was
more important than any other consideration, it extended its fisheries jurisdiction to 12 nautical miles, subsequently 50, and then to 200. While we tend to
explain the development of the 200-nautical mile fishing zone by reference to the
Icelandic Cod Wars, it should not be forgotten that Central and South American countries which had made similarly extensive claims still maintain them.
Sometimes such claims were expressed in terms of absolute sovereignty, and
others less this, but the decade following the First Conference show that increasing numbers of the international community, whose numbers were swelling due
to de-colonialisation and independence of former colonies, so claims to 200 nautical mile fishing zones as perfectly legitimate. This group became the dominant
faction at the Third United Nations Conference on the Law of the Sea, and it was
16 There is a concise and useful summary of the fishing disputes between Iceland and
the United Kingdom in the British National Archives, which can be accessed at: http://
www.nationalarchives.gov.uk/cabinetpapers/themes/cod-wars.htm
72
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always apparent that they would wish to see a zone of this nature in any draft of
a possible convention.
The result of these efforts was Part V of the LOSC, with the fisheries zone now
translated to an exclusive economic zone. The nature of States rights remains
something less than sovereignty or even ownership: sovereign rights for the purposes of exploration and exploitation of the living and nonliving resources of the
water column, seabed and subsoil. To this are added jurisdiction with respect to
the generation of energy from tidal power, waves, and the like. The coastal State
is also given jurisdiction to control marine scientific research. Nevertheless, none
of this detracts from the characterisation of the Zone as having primarily to do
with the exploration for and exploitation of resources.
The phrase sovereign rights for the purposes of [resource exploration and
exploitation] made its first appearance in international law in Article 2(1) of
the Continental Shelf Convention. It was coined by the International Law Commission, which had been given the task of codified and developing the law of
the sea as one of its first major projects. The Commission chose the sovereign
rights formulation in order to avoid what it saw as the on-going territorialisation
of the continental shelf. The reasoning was that if a State exercises sovereignty
over the shelf, then it would not be long before sovereignty over superjacent
waters would follow. This was seen as highly undesirable, particularly by countries which were resisting the whole notion of extended exclusive fisheries zones.
It should be noted, however, that despite the sovereign rights formulation as it
appeared in the Continental Shelf Convention, and reappeared the LOSC, a number of countries still maintain claims to offshore jurisdiction which are at variance with these more limited formulations. More limited they may be, but they
still invest coastal States with all the rights that are necessary to control resource
development within the exclusive economic zone and on the continental shelf.
The question that now confronts us is as follows: are EEZ rights solely to do
with resource exploration and exploitation, coupled with other specified economic interests, or do theyshould theygo further than this? In the opinion of
some countries, they do, and indeed must. Others contest this adamantly. For the
latter group of States, EEZ rights include control over activities such as marine
hydrographic surveying, a matter which, in this writers view at least, is expressly
omitted from Part V of the LOSC. There are excellent reasons for this. For one
thing, mariners are of the view that everything that can be done to improve the
accuracy of marine charts should be done. Those of us who have been working
on South China Sea issues know that there is some debate as to the precise location of some of the Spratly Islands. Since the primary characteristic of a number
of these features is the danger they profess to navigation, this is arguably somewhat serious. Furthermore, if hydrographic surveying is seen as something that
benefits the ocean community as a whole, why would it be regarded in a quasiproprietorial manner, as a matter that is valued by the adjacent coastal State
more than any other sea user? Problems emerge when the dividing line between
the territorialisation of the exclusive economic zone
73
the activity known as hydrographic surveying, the activity known as marine scientific research, and the activity known as resource exploration becomes blurred,
and this will be touched on below.
Amore pressing issue, however, and one of greater sensitivity than hydrographic
surveying, concerns the conduct of naval exercises by foreign vessels within the
EEZ which have not sought the permission of the coastal State. The wording of
the LOSC is, however, clear: such permission is not required. Accordingly, naval
exercises in the EEZ remain part of high seas freedoms, unless and until the LOSC
is amended, or a rule of customary international law comes into being which
covers the matter. But this proposition raises an immediate question: can the
LOSC be read so as to guarantee what is left of high seas freedoms? For if it
can, then this would seem to argue against the possibility of the emergence of
a rule of customary international law, at least on the part of States party to that
agreement.
Part of the problem here relates, of course, to the nature of these exercises,
and to the myriad other activities warships conduct in the EEZs of other States.
These can include testing or assessing defences and surveillance equipment, a
process often referred to as tickling.17 It is not difficult to conceive that such
activities can cause intense resentments on the part of States subjected to them,
but this does not in and of itself render them unlawful.
This writers reasoning on this matter has been guided by the recollection of
that article in the American Journal of International Law of 1956. This is because
one has often been struck in listening to academic debates concerning the nature
and extent of state rights beyond the limits of the territorial sea by the fact that
some commentators seem to regard the LOSC as being the sole statement of such
rights, and that there is no countervailing opinion regarding the legal basis for
the freedoms pursued by other States in a foreign EEZ. In other words, we have
indeed lost sight of the concept of the freedom of the seas. There seems to be
a lack of appreciation that the concept, much reduced as it is, is still with us. It
remains the source of rights, and should therefore be seen in tandem with, and
not eclipsed by, comprehensive and powerful statements of the law such as the
LOSC.
Towards a More All-Embracing Regime of the EEZ?
It is argued here that when we consider enhancing the rights of coastal States in
their EEZ for purposes such as controlling hydrographic surveying and the utilities
of foreign warships, we should consider what we are losing in doing so. It seems
to this writer at least that the debate to this point, insofar as one has been able to
17 See, for example, Mark J. Valencia, Foreign Military Activities in Asian EEZs: Conflict
Ahead? NBR Special Report no. 27, May 2011 (National Bureau of Asian Research, 2011).
74
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follow it, has been dominated by the voices of coastal States that regard the lack
of such rights and controls as lacunae in their jurisdictional armouries. Would it
not be more principled to conduct an evaluation of the nature of state rights in
the EEZ based on an objective and commonly agreed interpretation of the LOSC?
That agreement was 30 years old in December 2012. Those who argue that there
have been fundamental developments in shifts in, for example, the way in which
marine hydrographic surveying is conducted today, as opposed to 30 years ago,
may indeed have a point. If so, and if the international community agrees to draw
the appropriate conclusions from such developments, then the next logical step
is to consider some process for updatingmeaning amendingthe LOSC. That
would, however, undoubtedly prove to be a monumental task fraught with dangers, for if some States wish to enhance the nature of rights within the EEZ, others
will undoubtedly have items on their national agendas also. For example, Canada
might seek to develop rules whereby its sovereignty over the waters of the Arctic
archipelago would be consolidated, or rights to control the fishery resources of
the nose and tail of the Grand Bank of Newfoundland recognised. Some States
remain unhappy with provisions regarding archipelagic transit passage, all with
respect to seelines of communication generally. Furthermore, as international
lawyers know, in the extremely unlikely event that all State parties agree to an
amendment then everyone moves on, but this is a highly unlikely outcome. It
is abundantly clear that there is at present no international consensus on the
enhancement of state rights within the EEZ.
In the context of a meeting convened for the objective of discussing emerging
rules of the law of the sea, can we not also consider, again as objectively as possible, whether it is ultimately in the interests of the international community as
a whole that EEZ rights are enhanced beyond their current limits? Perhaps a proposal for one benchmark for acceptability could be advanced? (and no claim to
originality is made here). It appears to this writer that most States would oppose
any development which would lead to the 200 nautical mile territorial sea. In
this context, we should remind ourselves of the balance between the rights of
coastal States and the rights of the rest of the world which was struck during the
negotiations at the Third Conference, and which finds its expression in the LOSC.
As Ambassador Arvid Pardo of Malta said in the General Assembly in 1967, it is
simply not acceptable that coastal States, already by and large the most favoured,
allocated to themselves further rights over resources which where once regarded
as the international commons. The question then becomes one of asking in some
detail for a justification of any alteration in the juridical status quo with respect
to the nature of EEZ rights. Is a national security of the coastal State threatened
by the current arrangements? Are countries indeed conducting what amounts
to resource assessment or exploration on the continental shelves and within the
EEZs of other States?
Frankly, some of us have difficulty in understanding the saliency of that final
point. Resource assessment can be conducted in all sorts of ways, including the
the territorialisation of the exclusive economic zone
75
deployment of satellite technology. It is hard to conceive of any means whereby a
State can prevent another from engaging in such activities by such means. Surely
the point here is that the coastal State is armed with the totality of rights to
control all aspects of resource exploration and exploitation. While it is certainly
true that there may be asymmetries of knowledge with respect to resources as
between a coastal State and those seeking to explore and exploit them, the coastal
State, acting alone or through an international organisation, with the assistance
of other States, has the means to work on redressing this imbalance. It should
not be forgotten that when petroleum development of the North Sea began in
the early 1960s, the oil companies knew a great deal more about every aspect
of oil and gas operations than at least some of the governments who granted
licences and permits to them. It is noteworthy that one of the first objectives of
the development of petroleum law and policy in countries such as Norway was
to learn as quickly as possible, and the terms and conditions in oil and gas exploration and production licences, and then the introduction of state participation
through national oil companies, made a huge contribution to this. If governments
wish to hold exclusive rights with respect to resources, then they must learn to
be good resource managers. That does not come about merely by declarations of
independence, or votes in the General Assembly of the United Nations. It takes
work, effort, commitment, and of course resources. That surely cannot be a substitute for this level of dedication of effort and commitment, unless a State allies
itself with others and creates a regional organisation to act on its behalf. The
Forum Fisheries Agency which serves the South Pacific Island States is an excellent example.18
The EEZResource Regime, or Something More?
One could argue that the fundamental question arising here is whether the international community wishes to shift the focus of the regime of the EEZ as it is
codified and developed in the LOSC from one with a primary focus on resources,
and a secondary focus on economic development, into something else, which
does not fit with either of these broad purposes. Again, one can repeat the call
for a detailed explanation of precisely how and why, and in what circumstances,
the current arrangements represent a threat to the interests of coastal States. It
is a truism to reiterate that the development of any legal rule affecting two parties, any readjustment of the interests of the coastal State and the international
community means a gain for the formerand a loss for the latter. If the arguments in favour of such a readjustment are primarily those which bolster control,
then we should remember that the whole tenor of the international law the sea
18 The Agencys website describes its many activities and their importance to the member
states, not to mention the international community at large: see www.ffa.int/.
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from the work of the International Law Commission in the 1950s, through to the
First Conference (which accepted the sovereign rights formulation) and then the
Third Conference,19 and to the present day, opposed this. Unless we understand
the source of the opposition, and the determination that lay behind resistance
to the territorialisation of first continental shelf rights and then those in the EEZ,
we lack an essential tool to conduct an analysis of the pressures to which the latter concept is currently being subjected.
19 The Second Conference, convened primarily to resolve fisheries issues outstanding
from 1958, failed.
PART TWO
DISPUTED LIMITS
chapter THREE
The Role of Islands in the Generation of Boundaries at Sea
John Briscoe and Peter Prows*
This chapter is a primer in the ways the law uses islands in the generation of
maritime boundaries. It considers first the definition of the word island as it
is used in the drawing of international maritime boundaries. Curiously perhaps,
the legal definition of island, which has been generally accepted for 50 years,
is disclosing long-latent ambiguities. Second, it provides a brief treatment of the
ways islands are used in drawing those boundaries. Islands, in brief, with all their
definitional ambiguities, are used in the drawing of all of the currently accepted
maritime zonesthe territorial sea, the contiguous zone, archipelagic waters, the
continental shelf, and the exclusive economic zoneas well as in the division of
such zones between or among States whose coasts are opposite or adjacent to
each other. Third, in its conclusion this chapter takes a fleeting look at emerging
island issues in this time of accelerating sea-level rise.
What is and is not an Island, for the Purposes of Marine Boundaries
The history of the evolution of the definition of an island is long, often dull, and
in any event related elsewhere.1 We will refer to it but occasionally. Let it suffice
to say that an international consensus on a definition of island emerged in 1958,
* Briscoe, Ivester & Bazel LLP (lawyers), San Francisco; Mr Briscoe is a Distinguished
Senior Visiting Scholar, Law of the Sea Institute, University of California, Berkeley. He
has advised or represented in litigation several nations, states of the United States, and
the United Nations Compensation Commission on matters of international law, particularly the law of the sea. In addition to his practice and teaching of law, he is an
author on other subjects, and a poet of no known renown. Mr Prows is Co-Chair, Law
of the Sea Interest Group, American Society of International Law. Mr. Prows has advised
the Republic of Palau on maritime boundaries, the law of the sea, fisheries, and climate
change. He clerked for Judge Abdul G. Koroma of the International Court of Justice and
for the private international arbitration practice of Judge Charles N. Brower, 20 Essex
Street Chambers.
80
john briscoe and peter prows
when the Convention on the Territorial Sea and the Contiguous Zone (Territorial
Sea Convention)2 was concluded. The Convention defined the word island in its
Article 10. The definition is simplicity itself, or so it appears:
1.An island is a naturally formed area of land, surrounded by water, which is
above water at high tide.
The 1958 definition was carried over into the Article 121(1) of the United Nations
Convention on the Law of the Sea (LOSC).3
Notwithstanding the 50-year adherence to a single definition, ambiguities still
surface. This first section considers aspects of the concept of island that one
might have thought would be history by now.
1.An Island Must Be Naturally Formed
The Territorial Sea Convention made plain that artificial islands would not qualify
as legal islands by defining islands to mean only naturally formed features.
The LOSC hammers the point. Although safety zones may be established around
artificial islands,4 Article 60(8) provides that the principal maritime zones are
not to be measured from artificial islands. Article 7 provides one notable exception. Restating a provision of the Territorial Sea Convention, it refers to what are
essentially artificial islands when it permits the drawing of straight baselines to
and from low-tide elevations if lighthouses or similar installations which are permanently above sea level have been built on them.
The LOSC further provides in Article 11, which deals with ports and harbor
works, that off-shore installations and artificial islands shall not be considered
as permanent harbour works. These structures thus are not regarded as forming
part of the coast for delimitation purposes.
1 See, for example, B. Read, Islands, Drying Rocks and Drying Shoals, United States Department of State (unclassified) (September 1957); Aaron Shalowitz and Michael Read, Shore
and Sea Boundaries, Volume 1 (Washington, D.C.: Government Printing Office, 1962),
22529. See, for example, Derek W. Bowett, The Legal Regime of Islands In International
Law (New York: Oceana Publications, 1978), 19; Hiran W. Jayewardene, The Regime of
Islands In International Law (Dordrecht: Martinus Nijhoff Publishers, 1990), 39; Clive
Schofield, The Trouble with Islands: The Definition and Role of Islands and Rocks
in Maritime Boundary Delimitation, in Seoung-Yong Hong and Jon M. van Dyke (eds.),
Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (The Hague:
Martinus Nijhoff Publishers, 2009), 2331.
2 Convention on the Territorial Sea and the Contiguous Zone, opened for signature 29 April
1958, entered into force 10 September 1964 (Territorial Sea Convention) 516 UNTS 205.
3 United Nations Convention On The Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 396 (LOSC).
4 LOSC, article 60(4).
the role of islands in the generation of boundaries at sea
81
With such explicit rules, it may be surprising that entire works have been
devoted to the legal regime of artificial islands.5 In truth, a number of perplexing
problems have arisen. The United States Baseline Committee, which generally
speaking is responsible for delimiting Americas maritime zones, has for years
wrestled with the problem of artificial dredged-spoil deposits. This problem is
encountered principally at the edges of the Mississippi River delta. These spoil
banks, over time, become indistinguishable from other, naturally deposited mud
islands that since 1805 have been heldfirst by an English courtto be American territory from which the territorial sea is measured.6
A second problem has arisen in the Arctic, where the quest for petroleum
has produced an ingenious solution to the need for an offshore installation that
can withstand the rigors of icebound waters nine months of the year. There, oil
companies have built artificial islands of gravel, sand, clays, and silt. The individual grains of these materials are then, as in natural alluvial islands in the
Arctic, cemented together by interstitial ice to depths of many feet, perhaps
several hundred feet. These islands are expected to behave over time much like
natural islands in the areaexperiencing accretion, erosion, and changes in configuration and elevation, and persisting in existence.7
2.An Island is an Area of Land
What could be more fundamentally sensible than to distinguish land from water?
But what of the Arctic, particularly the Canadian Arctic, with its permanent
ice shelves attached not only to the mainland coast, but to islands as well?
Moreover, what of the pack ice that, nine months of the year, converts the interisland waters of the Arctic to one vast plain, more readily negotiated by a D-9
Caterpillar tractor than by any icebreaker?
As early as 1930 the world community hedged its position on the rules of delimitation as they might apply in the Arctic and other icebound areas. At the League of
Nations Conference for the Codification of International Law, the report of the
second Sub-Committee made this Observation: It must be understood that
the provisions of the present [draft] Convention do not prejudge the questions
which arise in regard to coasts which are ordinarily or perpetually ice-bound.8
Like the Territorial Sea Convention, the LOSC contains no special delimitation
5 Nikos Papadakis, The International Legal Regime of Artificial Islands (Leiden: Sijthoff,
1977); and see Alfred H. A. Soons, Artificial Islands and Installations in International Law
(Kingston, RI: Law of the Sea Institute, 1974).
6 The Anna, 5 C. Rob. 373, 165 Eng. Rep. 809 (Adm. 1805).
7 Islands: Normal and Special Circumstances, a research study by the United States Department of State, Bureau of Intelligence and Research (December 10, 1973), 70.
8 Acts of the Conference for the Codification of International Law 3, League of Nations document C.351(b).M.145(b).1930.V.16 (1930), 217.
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provisions for icebound coasts (although a right of coastal States to enact special environmental legislation in ice-covered areas within its exclusive economic
zone is provided for in Article 234).
Two modern writers, Theutenberg9 and Pharand,10 though, have essentially
the view that ice tongues and shelves that affix themselves to land should be
assimilated to land.
A decision of the United States Supreme Court displayed a different corner of
the ice-as-land hat. The case is United States v. Alaska.11 First, though, why did
that domestic court address principles of international-boundary determination?
In 1965, the United States Supreme Court ruled in United States v. California,12
that the coastal States of the United States owned the submerged lands off their
coasts, generally to a distance of three nautical miles, as they would be measured in accordance with the Territorial Sea Convention. As a result of that ruling,
the many subsequent cases between the American federal government and its
coastal States have produced perhaps more delimitation rulings than all of the
international decisions since that time. The issue mentioned in the Alaska case
was whether Dinkum Sands, a feature in the Beaufort Sea off the north Alaskan coast, constitutes an island. The federal government did not want Dinkum
Sands to qualify as an island, for that would diminish its outer continental shelf
holdings. It seized upon the fact that the alluvial formation has within it more
water, in the form of ice, than would a counterpart barrier-island formation in
more temperate climes. The United States contended that the legal elevation of
Dinkum Sands should be what it would be if the excess ice were extracted. The
Special Master recommended that Article 10 [Article 121 of the LOSC] be read
to assimilate all submerged ice to land.13 The Supreme Court itself declined to
address the issue.
3.An Island is a Feature above High Tidebut Permanently?
Many States, the United States among them,14 80 years ago urged that a land
feature be deemed an island if it was bare at low tide. It is now settled that the
9 Bo Johnson Theutenberg, The Evolution of the Law of the Sea: A Study of Resources and
Strategy with Special Regard to the Polar Areas, 1st edition (Dublin: Tycooly International, 1984), 36.
10 Donat Pharand, The Law of the Sea of the Arctic (Ottawa: University of Ottawa Press,
1973), 188, and see 181182.
11 521 U.S. 1 (1997).
12 381 U.S. 139 (1965).
13 United States v. Alaska, 275 (Report of the Special Master).
14 Responses of the United States and Japan to the 1929 questionnaire distributed by the
League of Nations Preparatory Committee, Bases of Discussion for the Conference 2,
Territorial Waters, League of Nations document C.74.M.39(l929).V.(l929), 5253.
the role of islands in the generation of boundaries at sea
83
feature must be above water at high tide.15 High tide is generally taken to be
represented by mean high water over an extended period of time. That is, the
average of all high waters over at least 19 years in order to take into account all
significant astronomical variations. Such a period therefore encompasses the full
cycle of changes in the positions of the key heavenly bodies that exert a direct
influence tidal heights, notably including the sun and the moon, relative to each
other.16 Still there is no international consensus, and there are a number of
scientifically accepted datums of high tide.17
In the American domestic litigation concerning Dinkum Sands, a question of astounding complexity was raised whether the featurewhatever its
compositionexists above high tide. It is an alluvial formation that fluctuates
in elevation seasonally, that lies in waters that are icebound three-fourths of the
year, and whose surrounding waters, while their tidal range is only one-half foot,
experience sea-level variations of many feet from non-tidal forces. The parties
jointly spent more than US$2.5 million trying to ascertain the elevation of high
tide, and the elevation of the feature relative to high tide, in that inhospitable
part of the world. During the summer months, the ice melts and causes Dinkum
Sands to slump below the high tide. The United States contended that implicit
in the definition of island is a requirement that the feature be permanently
above high tide. Alaska contended that there is no such unwritten requirement.
The International Law Commissions draft of what became Article 10 of the
Territorial Sea Convention read: Every island has its own territorial sea. An island
is an area of land, surrounded by water, which in normal circumstances is permanently above high-water mark.18 Article 10, however, was revised by the first
United Nations Conference on the Law of the Sea, at the urging of the United
15 Except, as mentioned above, those artificial islands that qualify as points from which
straight baselines may be drawn. They need only be above sea level.
16 The decree in United States v. California that followed the Supreme Courts 1965 opinion specified that high tide meant mean high water. 382 U.S. 448, 449 (1966). And
see Report of the Special Master, United States v. Alaska, No. 84, Original (March 1996),
23436; cf. Borax, Ltd. v. City of Los Angeles, 296 U.S. 10, 26 (1935); compare United
States v. California 381 U.S. 139, 176 (for purposes of the normal baseline, the lowwater line of article 3 of the Territorial Sea Convention and article 5 of the LOSC is
the line of mean lower-low water, not of mean low water). See also, International
Hydrographic Organization (with the International Oceanographic Commission and
the International Association of Geodesy), A Manual on Technical Aspects of the United
Nations Convention on the Law of the Sea, 1982, Special Publication no. 51, 4th edition,
(Monaco: International Hydrographic Bureau, 2006), at Section 3, 6570.
17 John Robert Victor Prescott & Clive Schofield, The Maritime Political Boundaries of the
World, 2nd edition (Leiden: Martinus Nijhoff Publishers, 2005), 59.
18 Report of the International Law Commission, UN General Assembly, Official Records
supp. (no. 9), UN document A/3159 (1956); reprinted in Year Book of the International
Law Commission 2 (1956): 253, 270, UN document A/Conf.4/Ser.A/1956/Add.l (emphasis added).
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States. The Conference deleted the word permanently (as well as the phrase in
normal circumstances) from the text of Article 10, leaving it to read as it now
does in the LOSC.19
The U.S. Supreme Court ruled that the deletion of the phrases permanently
and in normal circumstances from the definition of an island was not meant to
include features that are only sometimes or occasionally above high tide during abnormal circumstances. Wrote the Court, to qualify as an island, a feature must be above high water except in abnormal circumstances. Because the
feature frequently slumped below the elevation of mean high water, the Court
ruled, it does not meet the standard for an island.20
4.An Island Need not Be Habitable or Capable of Use
During the 1930 Hague Codification Conference, the United States at the Hague
Conference took the position that each separate body of land which is capable of
use shall be regarded as an island in determining the extent of territorial waters.21
The subcommittee that dealt with territorial waters did not accept the concept
and adopted instead a definition similar to that later found in Article 10 of the
Territorial Sea Convention.22
The decades following the adoption of the Territorial Sea Convention saw the
advent of claims of vast continental shelves and 200-mile fisheries and economic zones. The question whether such zones should be measured from mere
rocks that were incapable of userocks which would unquestionably qualify
as islands under the Territorial Sea Conventionwas resurrected at the Third
United Nations Conference on the Law of the Sea. A consensus was reached, and
Article 121, which sets forth the LOSCs definition of island, contains the following exclusion: 3. Rocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or continental shelf.
The Anglo-Irish dispute over Rockall is profoundly affected by this modification. When the dispute arose in the early 1970s, it centered largely on the validity
of the United Kingdoms claim of sovereignty to this tiny, remote rock, approximately 70 feet high and 80 feet in circumference.23 As Ireland saw the futility of
pursuing the sovereignty claim, the focus of the dispute migrated to the question
whether the feature is an island, entitled to a continental shelf and EEZ under
19 UN Conference on the Law of the Sea, Official Records 3, First Committee (Territorial
Sea and the Contiguous Zone), summary records of meetings and annexes, UN document A/Conf.13/39 (1958), 16163, 210, 242.
20 United States v. Alaska, 27.
21 Acts of the Conference for the Codification of International Law 3, League of Nations
document C.351(b).M.145(b).1930.V.16 (1930), 200.
22 Acts of the Conference for the Codification of International Law 3, 219.
23 Clive Symmons, Legal Aspects of the Anglo-Irish Dispute over Rockall, Northern
Ireland Legal Quarterly, 26 (1975): 65.
the role of islands in the generation of boundaries at sea
85
Article 121(2) of the LOSC, or is a mere rock.24 The United Kingdom and Ireland
have settled on the latter, agreeing on a maritime boundary that gives no weight
to the presence of Rockall.25
A similar dispute exists in the Philippine Sea over the strategically located
atoll of Okinotorishima. Japan claims sovereignty over the islets in this atoll, and
has covered them with thick concrete and titanium netting to prevent erosion
and keep them above water. Japan has also used these islets as basepoints for
the drawing of the southernmost boundary of its EEZ, and for the outer limits
of a continental shelf that would extend south to the EEZ of Palau. But China
and South Korea submitted objections to the Commission on the Limits of the
Continental Shelf (CLCS), arguing that these islets are rocks that do not generate a continental shelf. The CLCS has decided to defer making recommendations
about the maritime zones generated by Okinotorishima for the time being.26
The Roles of Islands in Maritime-Boundary Generation
Article 121(2) of LOSC provides that, with one noteworthy exception, the territorial sea, the contiguous zone, the exclusive economic zone and the continental
shelf of the island are determined in accordance with the provisions of the Convention applicable to other land territory.
1.The Use of Islands to Delineate the Territorial Sea
The venerable territorial sea (formerly, marginal sea) is the most long-lived
of the maritime zones in use today. It is the zone over which the coastal State
exercises sovereignty as fully as over its land territory, subject to the rights of
foreign vessels to innocent passage.27
Drawing the outer limit of the territorial sea has three elements: the selection
of coastal features from which it is to be measured (baselines or base points),
the ascertainment of its breadth, and the manner of drawing its outer limit.
To take the elements in reverse order, the manner of drawing is settled. No
longer are nations suggesting a mirror image or shadow of the coastline, projected three or 12 nautical miles to sea. The proper method is the envelope of the
arcs of circles.28 It is codified in Article 6 of the Territorial Sea Convention, and in
Article 4 of the LOSC.
24 Ibid., 76.
25 Ireland and United Kingdom (7 Nov. 1988) Agreement Concerning The Delimitation Of
Areas Of The Continental Shelf Between The Two Countries, Law of the Sea Bulletin, 13
(1989): 48.
26 See UN Doc. CLCS/64 (1 Oct. 2009), paragraph 26.
27 See article 1 of the Territorial Sea Convention and article 2 of the LOSC.
28 For its application, see generally Shalowitz and Read, Shore and Sea Boundaries, Volume 1,
17072.
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As for breadth, the Territorial Sea Convention was silent on the question, and
the 1960 Geneva Conference on the Law of the Sea, which was convened solely
for the purpose of attaining an international consensus on that question, failed
to do so. (The story how that conference failed to attain the Six-plus-Six Compromise is an engaging tale of realpolitik, but beyond the bounds of this chapter,
and of academic sensibilities.)29 The LOSC succeeded in that respect, though
in Article 3 it permits a territorial sea as broad as 12 nautical miles. The United
States in 1983 acknowledged the validity of all the boundary provisions of the
LOSC,30 and in 1988, five years after it claimed an EEZ, proclaimed for itself a 12
nautical miles territorial sea.31
Islands provide basepoints or baselines for the territorial sea in a number of
ways:
(a)Islands Have a Normal Baseline of Their Own
Generally, when neither straight baselines nor archipelagic baselines are employed
by the coastal State, an island has a territorial sea of its own. This provision is
found in Article 10 of the Territorial Sea Convention, and in Article 121 of the
LOSC. This insular territorial sea is measured according to the rules governing
other land territories. The territorial sea of an island in this case is measured
from the low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State (the normal baseline),32 and from the lines or
points marking the seaward limits of rivers, bays, and ports that may be located
on the island.33
(b)From the Mouths of Bays: The Effect of Islands within and at the
Entrances of Bays
(1) Whether straight or archipelagic baselines have been decreed or not, questions may arise how to properly close bays (or features that may arguably
qualify as bays) when islands lie within their mouths. Whether an indentation constitutes a juridical bay, so that it can be enclosed with a straight
closing line, is determined largely by the semicircle test: whether its area is
29 For a sanitized account, see ibid., 275. The 6-plus-6 formula proposed by the United
States and Canada failed to pass by one vote on April 26, 1960.
30 Oceans Policy Statement, Public Papers of the President: Ronald Reagan, 1983, 1:378.
31 Proclamation 5030, Exclusive Economic Zone of the United States of America, 1 Public
Papers of the PresidentRonald Regan, 380, March 10, 1983; Proclamation No. 5928;
54 Fed. Reg. 777 (1989).
32 Article 3 of the Territorial Sea Convention and article 5 of the LOSC.
33 Articles 7, 8 and 13 of the Territorial Sea Convention and articles 9, 10 and 11 of the
LOSC.
the role of islands in the generation of boundaries at sea
87
greater than that of a semicircle drawn on the line that connects the headlands of the indentation.34
(2) What is to be done, in measuring the distance between headlands, with
islands that lie within the mouth? Paragraph 3 of Article 7 of the Territorial Sea Convention and Article 10 of the LOSC provide the answer: Where,
because of the presence of islands, an indentation has more than one mouth,
the semi-circle shall be drawn on a line as long as the sum total of the lengths
of the lines across the different mouths.
(3) When islands lie not at the mouth of the indentation but within it, does
the area of the indentation include or exclude the islands lying within
it? The answer is given in Paragraph 3 of Article 10 of the LOSC (Paragraph 3
of Article 7 of the Territorial Sea Convention): Islands within an indentation
shall be included as if they were part of the water area of the indentation.
(4) When they lie so close to the mainland coast that, for purposes of determining the headlands or natural entrance points of the bay, islands will be
deemed to be part of the mainland, and not as islands in the bays mouth.
In the Louisiana Boundary Case, the United States Supreme Court held that
small islands off the coast of Louisiana in the Mississippi River delta constituted headlands of bays along that coast, because the shoreline there consisted of a number of small deltaic islands. But Article 7 does not encompass
bays formed in part by islands which cannot realistically be considered part
of the mainland.35
(c)Islands as Basepoints in the Construction of Straight Baselines
Islands may be used as the termini of straight baselines, provided they meet the
criteria of the Fisheries Jurisdiction (United Kingdom v Norway) Case36 (Fisheries
Case), of Article 4 of the Territorial Sea Convention, or of Article 7 of the LOSC,
whichever is thought to govern the matter.
34 Paragraph 2 of article 7 of the Territorial Sea Convention, restated in paragraph 2 of article 10 of the LOSC. See also Aaron Shalowitz, The Concept of a Bay as Inland Waters,
Surveying and Mapping, 13 (1953): 43233; and, especially, Sir Gerald Fitzmaurice,
Some Results of the Geneva Conference on the Law of the Sea, International and
Comparative Law Quarterly, 8 (1959): 8284.
35 Louisiana Boundary Case, 394 U.S. 11, 6067 (1969); accord Rhode Island and New York
Boundary Case, 469 U.S. 504 (1985) (Long Island constitutes an extension of the New
York mainland).
36 Fisheries Jurisdiction (United Kingdom v Norway) ( Jurisdiction) (1951) ICJ Reports 116
(Fisheries Case). In the interest of precision, the expression straight baselines should
not be used without such a specification, for the rules laid down in the Fisheries Case
and in the two Conventions are different. Moreover, closing lines constructed across
the mouths of bays and rivers are sometimes referred to as straight baselines.
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Conventional wisdom holds that a modern international tribunal first considered the notion of straight baselines in the Fisheries Case in 1951. There the Court
considered Norwegian decrees of 1935 and 1937 which had established, as Norways baseline along its island-studded and deeply indented coast, not the actual
coastline, but a series of artificial lines constructed from salient points and islands
on the coast. The International Court of Justice (ICJ) held the Norwegian method
of baseline determination valid:
Where a coast is deeply indented and cut into...or where it is bordered by an archipelago such as the skjaergaard along the western sector of the coast here in question, the base-line becomes independent of the low-water mark, and can only be
determined by means of a geometrical construction. In such circumstances, the line
of the low-water mark can no longer be put forward as a rule requiring the coastline
to be followed in all its sinuousities.
The Court expressed three other qualifications to its decision upholding the
Norwegian decrees. For one, the baselines constructed must not depart to any
appreciable extent from the general direction of the coast. Second, the real
question raised in the choice of base-lines is in effect whether certain sea areas
lying within these lines are sufficiently closely linked to the land domain to be
subject to the regime of internal waters. Third, heed should be paid to economic
interests peculiar to a region, the reality and importance of which are clearly
evidenced by a long usage.37
That straight-baselines concept was codified, with refinements, in the Territorial Sea Convention, which contains an ever-so-slight variation on the words of the
ICJ, substituting fringe of islands for archipelago. Article 4(3) adds a requirement that straight baselines may not be drawn to and from low-tide elevations,
unless lighthouses or similar installations, permanently above sea level, have
been built on them. Article 4(6) requires the coastal State employing straight
baselines to depict them on charts to which due publicity must be given.
These rules for straight baselines are reaffirmed in Article 7 of the LOSC. One
notable addition is found in Article 7(2): Where because of the presence of a
delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line
and, notwithstanding subsequent regression of the low-water line, the straight
baselines shall remain effective until changed by the coastal State in accordance
with this Convention.
University of Chicago Professor Norton Ginsburg in 1984 showed that,
of the developed nations of the world having coastlines legally suitable for
straight baselines, only five had not decreed them.38 One was the United States.
37 Fisheries Case, 12829, 133.
38 Those countries are Greece, Japan, The Netherlands, New Zealand, and the United
States. Ginsburgs study, while unpublished, was described by him in testimony in the
Alaska litigation the summer of 1985.
the role of islands in the generation of boundaries at sea
89
The popularity of straight baselines has produced systems that, not surprisingly,
sometimes produce questionable baselines, such as Vietnams.39
(d)One Variation on Straight Baselines: The American Ten-Mile Rule
Conventional wisdom, it was mentioned, ascribes to the Fisheries Case the first
approval of straight baselines by a modern international tribunal, but that is
incorrect. Also incorrect is the assertion of the United States that it has never
employed a system of straight baselines.40 The two errors are linked.
The first international tribunal to have considered straight baselines may
have been the Alaska Boundary Tribunal, which convened in London in 1903 to
resolve the dispute between the United States and Great Britain over the boundary between the British dominion in Canada and the American territory of Alaska.
During the arbitration, the American agent addressed the limits of American territorial waters off Alaskas Alexander Archipelago, and the baselines from which
those waters were measured. He declared that the maritime jurisdiction of the
United States was measured from the seawardmost islands of the Alaskan panhandle, and from straight baselines connecting those islands. Britain conceded
the position, so long as none of the American straight baselines exceeded 10 miles
in length.41
In succeeding years, the United States accepted the 10-mile limitation in
employing this system of straight baselines. In the Fisheries Case, the International Court of Justice received evidence from both the United Kingdom and Norway of the United States employment of this system. In 1985 the United States
Supreme Court took note of Americas straight-baseline practice, and of the fact
it was so well known that both the United Kingdom and Norway had, in their
memorials, cited the American practice.42
Three states of the United States have had their seaward boundaries delineated from straight baselines along the coast. These are Alabama and Mississippi
and Louisiana, in the area of Breton and Chandeleur Sounds.43 As for the islandstudded coast of southeast Alaska, where the United States proclaimed straight
baselines in 1903, the United States recanted its position. The United States
Supreme Court accepted the revised position of the United States, reasoning that
connecting islands with straight baselines is permissible only in exceptional
39 John Robert Victor Prescott, The Maritime Political Boundaries of the World (New York:
Methuen, 1985), 212, 278; and see Arthur J. Hanson, Coastal and Ocean Resource Management: The Vietnam Case, in this volume.
40 This contention has resounded throughout the submerged-lands litigation of the United
States Supreme Court, beginning with the case of United States v. California, 381 U.S. 139
(1965).
41 See, for example, VII Proceedings of the Alaska Boundary Tribunal, 6089 and 611.
42 United States v. Louisiana, 363 US 1, 6667, n. 108; United States v. Louisiana (Alabama
and Mississippi Case), 470 U.S. 93, 84 L.Ed.2d 73, 8384 (1985).
43 Ibid., 84, note 9.
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cases in which an island or group of islands are so integrally related to the mainland that they are realistically parts of the coast, and that these Alaskan islands
do not satisfy that test.44
(e)When Islands are Mid-ocean Archipelagos: The Drawing of Archipelagic
Baselines
The outer islands of mid-ocean archipelagic States may be used, the LOSC provides, for the construction of archipelagic baselines. Article 47(1) of the LOSC
provides: An archipelagic State may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in
which the ratio of the area of the water to the area of the land, including atolls,
is between 1:1 and 9:1.
Article 46 defines archipelagic State and archipelago:
(a) archipelagic State means a State constituted wholly by one or more archipelagos and may include other islands;
(b) archipelago means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such
islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.
From archipelagic baselines, Article 48 provides, the outer limits of the territorial
sea, the contiguous zone, the exclusive economic zone, and the continental shelf
are to be measured.
Unlike the case of straight baselines, the waters enclosed by archipelagic baselines are not deemed inland waters but, rather, archipelagic waters. These waters
are subject to the regime of archipelagic sea-lanes passage provided for in Article 53
of the LOSC; inland waters are not. Along the coasts of individual islands, the
archipelagic State may still construct closing lines pursuant to Articles 9, 10, and
11 (rivers, bays, and ports) of the LOSC. Those closing lines will divide the archipelagic waters from inland waters.
May a State, having proclaimed archipelagic baselines, within those lines and
along the coast of a major island (Mindanao, for example), draw straight baselines?
Article 50 of the LOSC may preclude the construction of such straight baselines by
failing to mention Article 7 when it provides: Within its archipelagic waters, the
archipelagic State may draw closing lines for the delimitation of internal waters,
in accordance with Articles 9, 10 and 11.
44 Alaska v. United States, 545 U.S. 75, 92 (2005) (internal citation, quotations marks, and
ellipses omitted).
the role of islands in the generation of boundaries at sea
91
The Use of Islands in Drawing the Outer Limit of the Contiguous
Zone
The contiguous zone, which lies adjacent to a States territorial sea, is a maritime
zone in which the coastal State may exercise powers necessary to (a) prevent
infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea; (b) punish infringement of the above laws
and regulations committed within its territory or territorial sea.45 The earlier
convention, in Article 24(2), permitted a maximum breadth of 12 nautical miles
for the contiguous zone; Article 33(2) of the LOSC allows 24 nautical miles.
Islands, according to Article 121(2) of the LOSC, are used in delimiting the contiguous zone just as they are for delimiting the territorial sea.
1.Islands as Generating Exclusive Economic Zones
The LOSC provides in Articles 55 and 57 that every coastal State enjoys an exclusive economic zone (EEZ) adjacent to its coast, extending as far as 200 nautical
miles from the territorial sea baselines. As in the case of the continental shelf,
however, not all islands, as defined in Article 121(1), may be used to delimit an
EEZ. Article 121(3) states that [r]ocks which cannot sustain human habitation or
economic life of their own shall have no exclusive economic zone.
2.Islands in the Drawing of the Outer Edge of the Continental Shelf
Article 1 of the Convention on the Continental Shelf,46 which defined the breadth
of the continental shelf according to the exploitability criterion, provided that
it included the seabed and subsoil of similar submarine areas adjacent to the
coasts of islands. Unlike its 1958 counterpart, Article 76 of the LOSC makes no
specific reference to islands, but rather provides, in paragraph 1, for a default 200
nautical miles continental shelf for all States, with the possibility of an extension
beyond that limit to the outer edge of the continental margin. Article 76(3)
defines continental margin as the submerged prolongation of the land mass of
the coastal State, while excluding the deep ocean floor with its oceanic ridges.
These provisions are made applicable to islands by Article 121(2).
Consequently some doubt has arisen as to whether many mid-ocean islands
are entitled to claim a continental shelf beyond 200 nautical miles. George Taft of
the U.S. State Department Legal Advisers office has argued that the fundamental
aspect of the drawing of continental shelf boundaries is that only land masses
45 Article 33(1) of the LOSC; see also article 24(1) of the Territorial Sea Convention.
46 Convention on the Continental Shelf, opened for signature 29 April 1958, entered into
force 10 June 1964, 299 UNTS 311 (Continental Shelf Convention).
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with continental crusts are entitled to claim a continental shelf beyond 200
nautical miles.47 Tafts interpretation would deprive those islands with geologically oceanic crusts (typically mid-ocean islands) of a continental shelf beyond
200 nautical miles.
Others have taken issue with Tafts interpretation.48 They note that Article
76(3) speaks of the continental margin in primarily geomorphologic, rather than
geologic, terms, as compris[ing] the submerged prolongation of the land mass of
the coastal State (emphasis added). Thus, any seafloor feature that is a continuous projection of the land mass would be eligible for a continental shelf claim,
regardless of the geology of its crust.
The CLCS Scientific and Technical Guidelines largely support the latter view, but
not without some complications. The Guidelines conclude that geological crust
types cannot be the sole qualifier in the classification of ridges and elevations of
the sea floor into the legal categories of [Article 76]...49 Yet the Guidelines do
not detail just what qualifiers the CLCS views as most important, favoring instead
examination on a case-by-case basis.50 A prudent island country will thus submit evidence both of an underwater land masss morphology and its geology to
qualify for a continental shelf beyond 200 nautical miles.
3.The Use of Islands in the Delimitation of Boundaries Between States Having
Adjacent Coasts or Opposite Coasts
For the delimitation of maritime boundaries between States having adjacent or
opposite coasts, the 1958 conventions emphasized the principle of equidistance,
qualified by cases of historic title or special circumstances, absent an agreement
between the States concerned.51
47 George Taft, Solving the Ridges Enigma of Article 76 of the United Nations Convention on
the Law of the Sea, paper delivered at 2001 ABLOS Conference, Monaco 1819 October,
2001 http://www.gmat.unsw.edu.au/ablos/ABLOS01Folder/ablos01_papers.htm.
48 See, Harold Brekke and Philip A. Symonds, The Ridge Provisions of Article 76 of the
UN Convention on the Law of the Sea, in Myron H. Nordquist et al. (eds.), Legal
and Scientific Aspects of Continental Shelf Limits (Leiden: Martinus Nijhoff Publishers,
2004), 169, 175; Nuno Marques Antunes and Fernando Maia Pimentel, Reflecting on
the Legal-Technical Interface of Article 76 of the LOSC: Tentative Thoughts on Practical Implementation, paper delivered at ABLOS Conference, Monaco, 2830 October,
2003, 1016 http://www.gmat.unsw.edu.au/ablos/ABLOS03Folder/ablos03_papers.htm.
49 CLCS, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, paragraph 7.2.9, U.N. Doc. CLCS/11 (May 13, 1999).
50 Ibid., paragraph 7.2.11.
51 See article 12 of the Territorial Sea Convention and article 6 of the Continental Shelf
Convention.
the role of islands in the generation of boundaries at sea
93
The LOSC, in Article 15, also emphasises equidistance and the median line, at
least in the territorial sea:
Where the coasts of two States are opposite or adjacent to each other, neither of the
two States is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of each
of the two States is measured.
This rule is also tempered, however, where historic title or special circumstances make it necessary to vary that line.
Article 74 of the LOSC addresses the delimitation of an EEZ boundary between
States with opposite or adjacent coasts, and Article 83 treats the delimitation of
a continental shelf boundary in those circumstances. These provisions are more
general than Article 15, mandating only that parties resolve their disputes by
agreement on the basis of international law...in order to achieve an equitable
solution. No substantive rules are provided for delimitation by litigation.
Islands have played a significant role in several maritime-boundary delimitation decisions, on which this final section will focus. Questions arise as to whether
islands may be used as basepoints in the drawing of provisional equidistance or
median lines, and also whether their presence constitutes a special circumstance
justifying the adjustment of the provisional line. The decisions we will discuss
are the 1977 Anglo-French Arbitration, the Tunisia-Libya Continental Shelf case,
the 1985 Libya-Malta Continental Shelf case before the I.C.J. in 1982, the Qatar
v. Bahrain case in 2001, the Romania v. Ukraine in 2009, and the Bangladesh v.
Myanmar in 2012.
(a)Anglo-French Arbitration (1977)
The subject of the Anglo-French Arbitration52 was the delimitation of the continental shelf boundary from a point in the eastern section of the English Channel
westward to the 1,000-meter isobath, some 200 miles west of the end of the Brittany peninsula. Three island groups figured in the delimitation: Eddystone Rock,
the Channel Islands,53 and the Isles of Scilly (see, Figure 3.1).
The Tribunal found that customary law and the Continental Shelf Convention
(to which Britain and France were parties) both led to the use of the equidistance
method, modified to account for all the relevant circumstances and in accordance with equitable principles. Moreover, the Tribunal declared that the idea
of proportionality was to be used to determine whether, by the application of
pure equidistance, an inequitable distortion resulted.
52 Continental Shelf (UK/France) XVIII RIAA, 271.
53 A group of British dependencies, some within 10 miles of the French coast.
94
john briscoe and peter prows
Figure 3.1The United KingdomFrance Channel Arbitration (Source: The International
Boundaries Research Unit. See, Carleton and Schofield, 2002: 17). From John Robert Victor
Prescott and Clive Schofield, The Maritime Political Boundaries of the World, Second edition,
(Leiden: Martinus Nijhoff Publishers, 2005), 583.
Applying these principles, the Tribunal first gave full weight to Eddystone Rock,
upon an apparent concession on the part of the French government (in Figure
3.1, point F is equidistant from Eddystone Rock and the nearest point on the
French coastline).
It next turned to the British Channel Islands of Alderney, Guernsey, Jersey,
and Sark, which lie very near the French coast. In light of the approximate equality of each partys mainland coasts and of the substantial diminution of French
shelf area which would result if the islands were given full weight, the Tribunal
held that the presence of the islands constituted a special circumstance justifying
their being wholly ignored in constructing the principal delimitation line. The
islands themselves were given 12 nautical miles enclaves on their seaward side;
no delineation was made on their landward side.
In the Atlantic, the Tribunal determined that the Scilly Islands, having a total
area of 7 square miles and being a somewhat attenuated portion of the coast of
the United Kingdom, should be given half weight.
(b)Libya-Tunisia Continental Shelf Case (1982)
The adjacent States of Libya and Tunisia requested a decision from the
International Court of Justice on the rules of law applicable in delimiting
the role of islands in the generation of boundaries at sea
95
Figure 3.2The Maritime Boundary between Libya and Tunisia (Source: The International Boundaries Research Unit. See Carleton and Schofield, 2002: 28). From John Robert
Victor Prescott and Clive Schofield, 589.
the continental shelf between them.54 As Figure 3.2 depicts, the general direction of the coast makes a sharp turn northward at the Gulf of Gabes in Tunisia.
Several coastal islands in the region belong to Tunisia, including Jerba near the
Libyan border and the Isles Kerkenna north of the Gulf of Gabes, and they had
to be considered.
The Court found that an equitable delimitation was not synonymous with
use of the natural prolongation method declared in the North Sea cases. Nor,
wrote the Court, was it necessary to use equidistance unless it would lead to an
equitable result. The Court further held that the area close to the coasts of the
parties should be treated differently from that farther offshore.
As a result, the Court determined that close to the shore the boundary should
be a line that lies approximately perpendicular to the coast at the Libyan-
54 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, (1982) I.C.J. Reports, 18.
See, Nicholas P. Dunning, Editors Introduction to International Court of Justice Judgment of February 24, 1982: Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), in Elisabeth Mann Borgese and Norton Ginsburg (eds.), Ocean Yearbook 4
(Chicago: University of Chicago Press, 1983), 51532.
96
john briscoe and peter prows
Tunisian land border. This line, in the view of the Court, had been informally
observed by both sides as the limits of concessions granted to oil companies.
Following this line to a point parallel to the westernmost point of the Gulf of
Gabes, the next segment of line (which has no terminus) runs perpendicular
to what might be deemed the general direction of the Tunisian coast. Tunisias
Isles Kerkenna were given half weight in determining this line, in a manner similar to that used in the Anglo-French Arbitration concerning the Isles of Scilly
(Figure 3.2).
The decision has been criticised on the groundamong othersthat it took
inadequate consideration of the Isles of Kerkenna and of Jerba.55 Jerba was given
no weight at all, despite having a considerable population, economic significance,
and a large area. The Kerkennas, given only half weight by the Court, have an area
of more than 69 square miles as compared to about seven square miles for the
Scilly Islands; moreover, they are considerably closer to shore, have a larger population and economic importance, and are adjacent to extensive low-tide elevations. The Court did not give a detailed analysis of its decision in these regards.
(c)Libya-Malta Continental Shelf Case
The opposite States of Libya and Malta submitted their boundary dispute to the
ICJ, which decided it in 1985.56 Only a central segment was delimited in this
case, the Court refusing to adjudicate in areas where other States (such as Italy
and Greece) might have interests. Each party advocated a different method of
delimitation. Malta urged the equidistance method, claiming that the sovereign
equality of States required use of this method.57 Furthermore, it claimed that
as an independent island State, the relationship of its coasts to coasts of opposite States was different from that of an island politically linked to a mainland
State; put plainly, Maltas position was that an island State has a stronger claim to
full weight than a dependent island in border delimitation decisions. The Court
rejected the argument.
The Libyan claim was that the shelf areas assigned to each party should be proportional to their coastlines. The Court agreed that proportionality was one rel-
55 See Donna R. Christie, From the Shoals of Ras Kaboudia to the Shores of Tripoli: The
Tunisia-Libya Continental Shelf Delimitation, Georgia Journal of International Comparative Law, 131 (1983): 1, 20; Case Western Reserve Journal of International Law, 16
(1984): 1, 2630. Jonathon Charney has also criticized the case as almost totally result
oriented, and as having pronounced the principle of the nonprinciple. J. Charney,
Developments in Ocean Boundary Law paper delivered at the annual Seminar of the
Center for Oceans Law and Policy, University of Virginia, March 15, 1986, 3.
56 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment (1985) I.C.J. Reports, 13.
57 Ibid. at para. 54.
the role of islands in the generation of boundaries at sea
97
evant factor and that the delimitation should not completely refashion nature.
It refused, however, to make proportionality the sole criterion.
The Court concluded that the initial criterion would be equidistance. Equidistance having no special status in international law, however, adjustments to
the line would have to be made, applying equitable principles. The Court first
excluded the Maltese islet of Filfla from the baseline calculation, because of its
very small size and lack of habitation. The Court next examined the relevant
coasts of the two States. It found a difference58 so great as to justify the adjustment of the median line in Libyas favour. The Court went on to consider the
general geographical context of the area and found that Malta was a minor feature, substantially south of the general direction of the seaboard (that is to say,
Sicily), in a semi-enclosed sea, and further that the distance between the coasts
of the parties provided adequate room for adjustment. To determine the amount
the boundary must be shifted toward Malta, the Court calculated a minimum displacement (that is, pure equidistance), a maximum (the equidistant line between
Libya and Sicily, determined by ignoring Malta altogether), and a splitting of the
difference between the two. The Court finally declared, without explanation, that
shifting the equidistance line between Malta and Libya due north by a distance of
75 per cent of the difference would be equitable (see Figure 3.3).
In calling for a northward shift of such magnitude, the Court seemed to use
proportionality, not for verification of the equitable result, but as the key factor
for adjusting the delimitation line, despite its statement to the contrary.59 What
is worse, this shift of the initial median line results in less than full weight being
given to the mainland coast of one partyin effect Malta itself was taken as
a special circumstance that required discounting. In addition, the Court misunderstood the half-effect theory of the 1977 Anglo-French Arbitration, where
partial effect was given only to a tiny part of one partys territory.
The trend in continental shelf and EEZ delimitation has been to accord less
than full weight to islands in the vicinity of larger States, either by reducing their
weight by a percentage, or by creating enclaves. This trend can be justified in
special circumstances, such as cases where the islands are of small size or close
to the opposing partys coastline. Use of this concept seems less appropriate when
the islands are large or closely connected with the mainland of one of the parties
(as in the Libya-Tunisia dispute). It seems wholly inappropriate when applied to
the entire territory of an island State party, such as Malta.
58 The lengths were 192 miles for Libya, 24 miles for Malta.
59 See dissenting opinion of Judge Oda, (1985) I.C.J. Reports, 163.
98
john briscoe and peter prows
Figure 3.3The MaltaLibya Continental Shelf Boundary (Source: The International
Boundaries Research Unit. See Carleton and Schofield, 2002: 16). From John Robert Victor
Prescott and Clive Schofield, 582.
the role of islands in the generation of boundaries at sea
99
(d)Qatar v. Bahrain Case
The ICJ decided a complex and unusual maritime delimitation between Qatar
and Bahrain in 2001.60 Qatar and Bahrain are both located in the southern part
of the Arabian (or Persian) Gulf and are separated by the Gulf of Bahrain. The
primary land mass of Qatar is a peninsula extending north from Saudi Arabia.
Bahrain is made up of a main island, al-Awal Island, as well as more than 30
other islands and maritime features, situated to the west of the northerly part
of the Qatar peninsula. Several islands and other features whose sovereignty
were in dispute are also situated in the waters between the two countries (see
Figure 3.4).
In delimiting both the overlapping territorial seas in the southern area, and the
exclusive economic zones and continental shelfs in the northern area, the Court
turned to customary international law, and chose as its method the equidistance/
special circumstances rule reflected in Article 15 of the LOSC and Article 12(1)
of the Territorial Sea Convention, which it characterized as the most logical and
widely practiced approach. This method involves, first, drawing a provisional
equidistance line between the baselines of the relevant coasts and then adjusting that line to account for any special circumstances.
Qatar argued that the parties relevant coasts should be the parties respective
mainlands, together with their principal offshore islands, and that some minor
features in the disputed area (over which Bahrain had sovereignty) should not
affect the delimitation. Bahrain contended that it was a de facto archipelago
with archipelagic baselines connecting every maritime feature over which it exercised sovereignty.
The Court rejected Bahrains attempt to characterize itself as an archipelago.
The Court considered that straight baselines should be applied restrictively,
and that Bahrain did not satisfy the conditions of Article 4 of the Territorial Sea
Convention or Article 7 of the LOSC. Seemingly decisive for the Court was that
Bahrain (a party to LOSC) had not formally declared itself to be an archipelagic
State in accordance with the procedures of Part IV of the LOSC. The Court did not
explain why such a formal declaration should be so important in a dispute to be
decided by customary international law.
The Court also rejected attempts by both parties to use the low-water mark of
a low-tide elevation, Fasht ad Dibal, lying within the territorial seas of both States,
in the delimitation. When two States are able to draw baselines around the same
60 Case Concerning Maritime Delimitation And Territorial Questions between Qatar And
Bahrain (Qatar v. Bahrain), Judgment of 16 March 2001 (2001) I.C.J. Reports, 40. Among
the unusual aspects of this case was the submission, and subsequent withdrawal, by
Qatar of 82 documents that Bahrain challenged as forged.
100
john briscoe and peter prows
Figure 3.4The BahrainQatar Maritime Boundary (Source: The International Boundaries Research Unit. See Carleton and Schofield, 2002: 24). From John Robert Victor Prescott
and Clive Schofield, 647.
feature, then that features impact on an equidistance line is neutralize[d]. Thus
the Court ignored this feature in the delimitation.61
61 Ibid. paras. 197209. Bahrain argued that it had acquired title to this low-tide elevation,
and thus that it was the only State able to use it for baselines. The Court, in less than
definite terms, distinguished the rules governing territorial acquisition of islands from
those for low tide elevations, reasoning that the latter do not justify a general assumption that low-tide elevations are territory in the same sense as islands. The Court also
noted that islands and low-tide elevations are treated considerably differently in the
law of the sea. Thus, Bahrain had not established that low-tide elevations can, from
the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or
other land territory.
the role of islands in the generation of boundaries at sea
101
In dicta, the Court also went on to reject the possibility of what it called leapfrogging from one low-tide elevation to another to generate a series of extensions
to a States territorial sea.62 The Territorial Sea Convention and LOSC, in Articles
11(1) and 13(1), respectively, allow a coastal State to draw baselines around a lowtide elevation within the breadth of its territorial sea, and thus extend the area of
its territorial sea. But this can only be done once, said the Court. A State cannot
use a low-tide elevation lying within the territorial waters of another low-tide
elevation to generate a second extension of the territorial sea.
The Court then looked at whether any special circumstances should affect the
provisional equidistance line. Here, the Court completely eliminated any effect
on the line that two very small and relatively remote islands might have had
thus continuing the trend mentioned above of discounting some minor islands.
(e)Romania v. Ukraine Case
The Courts recent decision in Romania v. Ukraine63 continues the trend of discounting the effect of some islands in delimitations. The dispute involved delimiting the maritime boundary between the two countries in the north-western
part of the Black Sea, in the area off the coast of the Danube delta. The Court
emphasized again its method of delimitation, which involves drawing a provisional equidistance line between the parties relevant coasts, adjusting that line
according to any special circumstances, and then assuring that the line drawn
achieves an equitable solution.
The Court dealt with two islands in this case, but treated them very differently.
The first was the Ukranian island of Tsyganka, which is located in the Danube
delta close to the Ukranian mainland. Without analysis or even apparent controversy, the Court considered it appropriate to use Tsyganka as part of the
relevant coast of Ukraine and as a basepoint in the drawing of a provisional equidistance line.
The situation was very different for the Ukrainian Serpents Island. The Court
noted that coastal islands have been used as basepoints, in particular when
a coast is made up of a cluster of fringe islands. Serpents Island, however, lay
alone and some 20 nautical miles away from the mainland, and was thus not
one of a cluster of fringe islands constituting the coast of Ukraine. Since Serpents Island was not part of the coast of Ukraine, the Court did not use it as
a basepoint in the drawing of the provisional equidistance line. The Court did
acknowledge, however, that Serpents Island generated a full 12 nautical mile territorial sea of its own.
62 Ibid. para. 207.
63 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February
2009 (2009) I.C.J. Reports, 61.
102
john briscoe and peter prows
The Court also considered whether Serpents Island might constitute a special circumstance meriting adjustment of the provisional equidistance line. The
Court concluded it did not, primarily because of what seemed to the Court as
the parties implicit agreement that Serpents Island was not relevant to the disputed maritime area. Romania took the position that Serpents Island was a rock
and thus could not generate an EEZ or continental shelf. Ukraine contended that
Serpents Island was an island that could generate those maritime zones, but it
did not place those zones at issue in the delimitation. Instead, Ukraine asked the
Court only to delimit the maritime zones generated by its mainland coast, not
by Serpents Island. The Court seemed to take this as a concession by Ukraine
that Serpents Island should not affect the provisional equidistance line.64
The Court could have arrived at the same result through a more straightforward application of the method it chose. Having chosen to draw a provisional
equidistance line, the Court could have simply done just that: its provisional line
could have been initially constructed to include all coastal features, including
Serpents Island, in the first instance, and then, in the second step, adjusted to
remove the influence of that the island as a special circumstance. Instead, the
Court made the island an issue in two steps. The Court first considered whether
the island should be used as a basepoint in the provisional equidistance line, and
then also whether the island was a special circumstance warranting adjustment
of that line. By considering the effect of the same island twice, the Court added
complexity and uncertainty to the delimitation.
(f)Bangladesh v. Myanmar Bay of Bengal Case
The International Tribunal for the Law of the Sea decided its first maritime
boundary case in 2012, delimiting the maritime boundary between Bangladesh
and Myanmar in the northeastern part of the Bay of Bengal.65 The Tribunal had
occasion to analyse how the same island can affect the delimitation of different
types of maritime zones differently.
The parties and the Tribunal agreed that the Convention provided the applicable law. Absent a boundary agreement, Article 15 provides that an equidistance
line, adjusted by,
historic title or other special circumstances, is to be used for the delimitation of the
territorial sea. Articles 74 and 83 provide that the delimitation is to be effected on
the basis of international law...in order to achieve an equitable solution.
64 Ibid. at paras. 179188.
65 Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012,
Case No. 16.
the role of islands in the generation of boundaries at sea
103
Figure 3.5The Romania/Ukraine Provisional Equidistance Line (Source: Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, (2009) I.C.J. Reports 61, 115).
104
john briscoe and peter prows
The Tribunal, having concluded that no boundary agreement existed, considered the effect of St. Martins Island on the delimitation of the territorial sea.
St. Martins is part of Bangladesh. It has a surface area of approximately 8 square
kilometers and is home to a permanent population of about 7,000 people. It is
located just over 4.5 nautical miles south of Bangladeshs mainland coast, and just
under 4.5 nautical miles west of Myanmars.
Myanmar contended that St. Martins island constituted a special circumstance
whose influence on the equidistance line should be discounted. Myanmar urged
the Tribunal to recognize that the general configuration between Myanmar and
Bangladesh is of adjacent mainland coasts. Myanmar argued that giving full effect
to St. Martins, being situated in front of Myanmar, would unduly distort that
coastal relationship of adjacency.66
Bangladesh contended that St. Martins should be given full effect. Bangladesh
noted that the island is just as close to Bangladesh as it is to Myanmar, and
that it has a large permanent population with a significant economy. Bangladesh argued that that these qualities distinguished the island from others whose
influence on delimitation lines have been discounted by other tribunals or state
practice.67
The Tribunal sided with Bangladesh on the effect of St. Martins on the delimitation of the territorial sea. The Tribunal wrote that the effect given to islands in
delimitation depends on the particular circumstances in each case. In this case,
the Tribunal emphasised that St. Martins is almost as close to Bangladeshs
mainland coast as to Myanmars, that it is within the 12 nautical mile territorial
sea limit from Bangladeshs mainland coast, and that the cases discounting the
effect of islands usually concern the delimitation of the EEZ or continental shelf
(not the territorial sea) or they concern islands that are much smaller and less significant than this one. Thus the Tribunal concluded that there were no compelling reasons why St. Martins Island should be treated as a special circumstance
deserving of anything less than full effect in the equidistance line.68
In the EEZ and continental shelf, however, the Tribunal treated St. Martins
very differently. The Tribunal agreed that the three-step method of delimitation
described in Romania v. Ukraine was appropriate. In the first stepconstruction
of the provisional equidistance linethe parties disagreed on whether St. Martins should be used as a basepoint on Bangladeshs coast. Myanmar again urged
that Tribunal to recognize that the dominant geographic realities in the area
were of adjacent coasts, and that using St. Martins as a basepoint would distort
that relationship. Bangladesh responded that St. Martins is a significant coastal
66 Ibid. paras. 131137.
67 Ibid. paras. 138145.
68 Ibid. paras. 146152.
the role of islands in the generation of boundaries at sea
105
Figure 3.6The Bangladesh/Myanmar Territorial Sea Delimitation (Source: Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the
Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, Case No. 16, at p. 57).
106
john briscoe and peter prows
feature and that all coastal features should be included in the provisional equidistance line.69
The Tribunal sided with Myanmar. The Tribunal, like the Court in Romania
v. Ukraine, emphasized the parties mainland coasts in the drawing of the provisional equidistance line:
[B]ecause it is located immediately in front of the mainland on Myanmars side of
the Parties land boundary terminus in the Naaf River, the selection of a base point
on St. Martins Island would result in a line that blocks the seaward projection from
Myanmars coast. In the view of the Tribunal, this would result in an unwarranted
distortion of the delimitation line, and amount to a judicial refashioning of geography. For this reason, the Tribunal excludes St. Martins Island as the source of any
base point.70
Nor did the Tribunal consider St. Martins to be a special circumstance warranting adjustment of that provisional line. The Tribunal emphasized that there is no
general rule about the effect to be given to islands in boundary delimitations,
other than that the ultimate goal is to achieve an equitable solution. The Tribunal agreed that St. Martins is an important feature, but concluded that it should
have no effect on the line. To hold otherwise, reasoned the tribunal, would result
in a line blocking the seaward projection from Myanmars coast in a manner
that would cause an unwarranted distortion of the delimitation line, which may
increase substantially the farther the line is drawn from the mainland.71
The Tribunals treatment of St. Martins Island closely resembles the Courts
treatment of Serpents Island. In both cases, the islands were given full effect
on the territorial sea. But the islands were not used at all in the drawing of the
provisional equidistance line for the EEZ and continental shelf and in the adjustment of that line. Instead, the projection of the mainland coasts were used for
the delimitation.
Conclusion
Many maritime boundaries that must account for the presence of islandsin
the view of one party, at leastremain to be decided. To appreciate the number of such unresolved boundaries worldwide, consider first just the number of
unresolved disputes over sovereignty over islands. Prescott and Schofield have
compiled a convenient table at pages 265284 of their 2005 work.72 Unresolved
69 Ibid. paras. 250258.
70 Ibid. para. 265 (quoting Romania v. Ukraine para. 149).
71 Ibid. para. 318.
72 Prescott and Schofield, The Maritime Political Boundaries of the World.
the role of islands in the generation of boundaries at sea
107
Figure 3.7The Bangladesh/Myanmar Adjusted Equidistance Line (Source: Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the
Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, Case No. 16, at p. 102).
108
john briscoe and peter prows
maritime boundaries in the Arctic and associated seas in which islands play roles
are identified in Prescott and Schofield at pages 523528.73
Still any list of yet-unsettled ocean boundaries that turn on the effects of
islands is compiled on the presumption that todays rules of delimitation will
resist mutating. But is there any ground to say that new forms of baselines and
maritime zones will not emerge over say the next 100 years? Will the definition of
island stay static? If the century just past is prelude, the answers are no.
Consider accelerating sea-level rise. In the United States, at least, consensus
is coalescing around the figure 55 inches, or about 1.4 meters, as the expected
global rise in sea level over the next 100 years.74 Never mind the worldwide environmental effects of such sea level rise, and never mind too its effects on the
maritime boundaries of coastal land States, such as Bangladesh. If the 1.4-meter
figure is anywhere near correct, it means that large parts of some islands, other
entire islands, indeed even entire island nations may be beneath the sea in a
hundred years time. Antigua, Nevis, the Maldives, the Marshalls, Kiribati and
Tuvalu are most at risk.
The LOSC, put simply if inelegantly, is ill equipped to address these eventualities. Its boundary provisions might be read as incorporating the principle, common to many legal systems, that coastal boundaries are ambulatorythat they
advance and retreat with accretion and erosion, or with reliction (a lowering of
the water) and submergence. The normal baseline provision of Article 5 might
seem to be an example. The normal baseline is defined as the low-water line
as shown on large-scale charts officially recognised by the coastal state. Sailing
charts historically have been revised to show coastline changes such as accretion
and erosion, but there is no requirement that the State revise its charts, and little
risk to mariner safety in not showing the retreat of a low-water line.
What occurs when an island no longer protrudes above the high-water mark?
Is it no longer an island, and thus not entitled to maritime zones of its own?
(Never mind the issue, whether it is still land, and so subject to the sovereignty
of some State).
73 Ibid.
74 For example, two coastal regulatory agencies in California, the California Coastal Commission and the San Francisco Bay Conservation and Development Commission, have
accepted that figure for their planning purposes. San Francisco Bay Conservation and
Development Commission, Living with a Rising Bay: Vulnerability and Adaptation in
San Francisco Bay and on its Shoreline (draft staff report, California, 2011), 2, passim;
Sea-Level Rise Task Force of the Coastal and Ocean Working Group of the California
Climate Action Team, State of California Sea-Level Rise Interim Guidance Document
(guidance document, California, 2010), 4. The United States Army Corps of Engineers
thinks the figure may be higher http://140.194.76.129/publications/eng-circulars/ec11652-211/entire.pdf.
the role of islands in the generation of boundaries at sea
109
Provision was made in the LOSC, in the article providing for straight baselines
(Article 7), for the recession of deltas. The framers had in mind such things as the
sediment starvation of the Nile, caused by the High Aswan Dam, that had begun
the retreat of the outer banks of the Nile Delta. But they did not have in mind the
rapid acceleration in the rise of global sea level that most coastal scientists now
recognize. And so no provision comparable to that for deltaic baselines exists
for the recession of an islands high- and low-water marks, and its disappearance
as an island when it drops wholly below the elevation of high water because of
sea-level rise.
Should the Convention be amended to address these issues? Is customary
international law up to the task? These are among the island issues that will be
faced in the next 100 years.
For the time being, these island issues will be faced without the United States,
which remains outside the Convention. A long forgotten poem by the American
poet Edna St. Vincent Millay, was published in the New York Times in 1940. In it
Ms. Millay implored her country to cease playing the isolationist, the islander,
as Europe and its people burned. The poem is too long to set out in full, but bits
of it seem appropriate here.
Lines Written in Passion and in Deep Concern for England, France
and My Own Country
Dear Isolationist, you are
So very, very insular!
Surely you do not take offense?
The words well used in such a sense.
Tis you, not I, sir, who insist
You are an Isolationist.
And oh, how sweet a thing to be
Safe on an island, not a sea!
(Though some one said, some months ago
I heard him, and he seemed to know;
Was it the German Chancellor?
There are no islands anymore.)
(The tidal wave devours the shore:
There are no islands any more.)
And yet, there was a Danish king
So sure he governed everything
He bade the ocean not to rise.
It did. And great was his surprise.
(There are no islands any more.
The tide that mounts our drowsy shore
Is boats and menthere is no place
For waves in such a crowded space....)
***
chapter FOUR
The El Dorado Effect: Reappraising the Oil Factor
in Maritime Boundary Disputes
Clive Schofield*
Introduction
Where overlapping claims to maritime jurisdiction exist, suggestions that the
disputed zone is oil rich frequently follow. Accordingly, the potential existence
of seabed energy resources underlying ocean spaces subject to overlapping claims
to maritime jurisdiction often plays an important role in maritime boundary disputes. Of course other valuable marine resources, most obviously fisheries, are
often also at stake. However, the possible presence of oil seems to provide a particularly compelling lure. The perception that such resources exist and that a
States vital national interests are therefore engaged, can serve as a powerful factor motivating policy-makers to robustly defend territorial and maritime claims.1
While it can be argued that the suspected presence of valuable seabed hydrocarbons resources can act as a spur to dispute settlement such that the interested
parties can gain access to such resources as soon as possible, all too frequently
the opposite effect can be observed. That is, the essential willingness to compromise in order to reach an agreed solution tends to be undermined by concerns
that to do so will leave crucial seabed energy resources on the wrong side of the
line as it were.2
* Director of Research, Australian National Centre for Ocean Resources and Security
(ANCORS), University of Wollongong, Wollongong, NSW 2522, Australia. E-mail: clives@
uow.edu.au. Professor Schofield is the recipient of an Australian Research Council Future
Fellowship (FT100100990).
1 John Robert Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the
World, 2nd Edition (Leiden/Boston: Martinus Nijhoff Publishers, 2005), 249.
2 Clive H. Schofield, Unlocking the Seabed Resources of the Gulf of Thailand, Contemporary Southeast Asia, 29/2 (2007): 286308, 289290.
112
clive schofield
This chapter seeks to reappraise the oil factor in the context of maritime
boundary disputes. The substantial expansion in national claims to maritime jurisdiction seawards is outlined together with the associated proliferation in overlapping maritime claims, potential maritime boundaries and, almost inevitably,
maritime boundary disputes. It is suggested that the importance of the oil factor in such disputes tends to be enhanced, and often overplayed, as a result of
increasing global energy security concerns, coupled with significant advances in
offshore hydrocarbons exploration technology, allowing for oil exploration activities in deeper waters, further offshore and in more hostile environments. Particular reference is made to two maritime areas where hydrocarbons are often viewed
as playing a significant underlying, if not central, role: the South China Sea and
the Arctic Ocean. It is concluded that the frequently highly speculative estimates
as to the oil and gas resource potential of disputed waters are often misleading
and unhelpful from a dispute resolution perspective, suggesting that the apparently crucial role of seabed energy resources in many maritime disputes should
be radically reappraised.
Expanding and Overlapping Maritime Claims
Coastal State claims to maritime jurisdiction have advanced increasingly far
offshore over time through a process that has commonly been termed creeping coastal State jurisdiction. Whereas in the past coastal State maritime claims
were restricted to a relatively narrow band of territorial waters, generally out to
3 nautical miles from the coast, now of 200 nautical miles breadth and beyond
are commonplace. A particular achievement of the United Nations Convention
on the Law of the Sea (LOSC) was the definition of clear spatial limits to national
claims to maritime jurisdiction, something which had eluded earlier codification efforts.3 Under LOSC agreement was reached on 12 nautical miles as the
maximum breadth of the territorial sea.4 LOSC also provides for a contiguous
zone out to 24 nautical miles from relevant baselines.5 Additionally, and significantly, the concept of the exclusive economic zone (EEZ) gained general international acceptance at the Third United Nations Conference on the Law of the Sea
3 United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 3. Also available at: <http://
www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm>
(LOSC).
4 LOSC, article 3 provides that every State has the right to establish the breadth of the
territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines
determined in accordance with the Convention. Article 4 further states that the outer
limit of the territorial sea is the line every point of which is at a distance from the nearest
point of the baseline equal to the breadth of the territorial sea.
5 LOSC, article 33.
the el dorado effect
113
(UNCLOS III) and agreement was reached on the maximum breadth of the EEZ of
200 nautical miles measured from baselines.6 Concerning the continental shelf,
complex criteria were laid down in article 76 of LOSC whereby the outer limits
of the continental shelf may be determined, in partnership with a scientific and
technical body established through the Conventionthe United Nations Commission on the Limits of the Continental Shelf (CLCS).7
The vast majority of coastal States have proved to be enthusiastic claimants
in terms of maritime jurisdictional zones.8 These claims are predominantly in
accordance with the terms of LOSC which has gained widespread international
recognition and acceptance.9 At the time of writing there were 166 parties to it.10
Indeed, those parts of the Convention dealing with maritime claims and maritime boundary delimitation can be considered declaratory of customary international law.11
The introduction of 200 nautical miles-breadth EEZs in particular has had a
dramatic impact on the scope of ocean spaces becoming subject to the maritime
claims of coastal States. It has been estimated that, should every coastal State
make national maritime jurisdictional claims out to 200 nautical miles (as is the
case), these claims would encompass 43 million square nautical miles (147 million square kilometres) of maritime space. This amounts to approximately 41 per
cent of the area of the oceans or 29 per cent of the Earths surface. The extent of
6 LOSC, Article 57 states that: The exclusive economic zone shall not extend beyond
200 nautical miles from the baselines from which the breadth of the territorial sea
is measured. As most coastal States claim 12 nautical mile territorial seas, the actual
breadth of the EEZ is usually 188 nautical miles seaward of territorial sea limits.
7 See, the Commissions website at: http://www.un.org/Depts/los/clcs_new/clcs_home
.htm.
8 See, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United
Nations, Table of Claims to Maritime Jurisdiction (2008) available at <http://www
.un.org/Depts/los/LEGISLATIONAND TREATIES/PDFFILES/table_summary_of_claims
.pdf>.
9 Indeed, many excessive claims, particularly with respect to the breath of claimed
maritime zones have been rolled back. However, it should be noted that a number
of coastal States retain claims to 200nm territorial seas (Benin, Congo (Brazzaville),
Ecuador and Peru). See, J. Ashley Roach and Robert W. Smith, United States Responses
to Excessive Maritime Claims, 3rd edition (Leiden: Martinus Nijhoff Publishers, 2012).
10 Comprising 165 States plus the European Community. See, United Nations, Division for
Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Chronological List of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as
at 7 August 2013 (United Nations, Division for Ocean Affairs and the Law of the Sea,
Office of Legal Affairs, 2013), http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm# The United Nations Convention on the Law of the Sea.
11 See, for example, J. Ashley Roach and Robert W. Smith, United States Responses
to Excessive Maritime Claims, 3rd edition (The Hague: Martinus Nijhoff Publishers,
2012), 45.
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the area subject to jurisdictional claims out to 200 nautical miles is thus approximately equivalent to the area of land territory on the surface of the Earth.12
Overlapping Claims and Maritime Boundary Disputes
The inevitable consequence of the enormous expansion in national claims to
maritime space seawards has been a major proliferation in overlapping claims
to maritime jurisdiction and thus potential international maritime boundaries.
Whereas the limited scope of the maritime claims of coastal States in the past
meant that the need for maritime boundaries was similarly restricted, this is very
much no longer the case. Instead, the expanded spatial scope of maritime claims
means that States far separated from one another now potentially may have overlapping maritime claims and therefore the need to delimit a maritime boundary
between them.
Indeed, as EEZ claims are now commonplace, for example, this means that
States with coasts up to 400 nautical miles distant from one another may share
a potential maritime boundary. Moreover, as continental shelf rights are in many
instances known to extend well beyond 200 nautical miles from baselines, States
even further removed from one another may require a seabed boundary to be
delimited. Although significant progress has been made in terms of the delimitation of maritime boundaries worldwide,13 there remains a long way to go before
a comprehensive network of agreed maritime boundaries and limits is achieved.
Indeed, less than half of the potential maritime boundaries around the world
have been delimited.14 Moreover, many of the maritime boundary agreements
that have been concluded are partial or incomplete in characterfor example
only covering part of the length of the potential maritime boundary or dealing
with only continental shelf rights rather than the EEZ.
12 Philip A. Symonds, Senior AdviserLaw of the Sea at Geoscience Australia (personal
communication, July 2011); and Prescott and Schofield, The Maritime Political Boundaries of the World, 9.
13 See, Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries, Volumes I and II (Dordrecht: Martinus Nijhoff Publishers 1993); Jonathan I.
Charney and Lewis M. Alexander (eds.), International Maritime Boundaries, Volume III
(Dordrecht: Martinus Nijhoff Publishers 1998); Jonathan I. Charney and Robert W. Smith
(eds.), International Maritime Boundaries, Volume IV (Dordrecht: Martinus Nijhoff Publishers, 2002); Robert W. Smith and David Colson (eds.), International Maritime Boundaries, Volume V (The Hague: Martinus Nijhoff Publishers, 2005); and Robert W. Smith
and David Colson (eds.), International Maritime Boundaries, Volume VI (The Hague:
Martinus Nijhoff Publishers, 2011).
14 Clive Schofield, The Delimitation of Maritime Boundaries: An Incomplete Mosaic, in
Doris Wastl-Walter (ed.), The Ashgate research companion to Border Studies (Farnham:
Ashgate, 2011), 665681.
the el dorado effect
115
In the absence of the delimitation of a maritime boundary, the claimant States
may become engaged in a maritime boundary dispute. Just as overlapping maritime claims, and thus potential maritime boundaries, have multiplied, so too have
maritime jurisdictional and boundary disputes. Again, this is perhaps inevitable
given the tendency for States try to maximise their own maritime entitlements. In
this context it is worth noting that the precise extent of many overlapping claims
is indeterminate. This stems from the manner in which coastal States frequently
merely make ambit claims based on the breadth of the zone in question, such
as a 200 nautical miles EEZ, rather than specifying that States exact claim line.
Thus, where two coastal States, both of which claim 200 nautical miles EEZs are
within 400 nautical miles of one another, an overlap can be said to exist but its
precise area remains unclear unless and until the coastal States in question clarify
their claims.
Additionally, it can be observed that the definition of maritime jurisdictional
claims is still an ongoing process, especially as coastal States seek to define their
outer continental shelf limits beyond 200 nautical miles from their coasts. This is
achieved in accordance with Article 76 of LOSC, which lays down complex criteria
for the definition of outer continental shelf limits. Moreover, such limits can only
be finalised following a submission of information to the CLCS.15 This ongoing
process has also led to a proliferation in potential maritime boundaries, overlaps
and disputes. Indeed, of the estimated 29.4 million square kilometres of potential
extended continental shelf areas subject to submissions to the CLCS mentioned
above, over 3.2 million square kilometres of continental shelf areas beyond 200
nautical miles from the coast are subject to overlapping submissions.16
The Resource Dimension
A key driver for expanding coastal State claims to maritime jurisdiction was (and
remains) the desire to gain access to valuable offshore resources. For example,
United States Presidential Proclamation No. 2667 on the Policy of the United States
With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental
Shelf of 28 September 1945, otherwise known as the Truman Proclamation, was
explicitly resource-oriented, asserting that the:
15 See, the Commissions website, available at, <http://www.un.org/Depts/los/clcs_new/
clcs_home.htm>.
16 Robert van de Poll and Clive Schofield, Exploring to the Outer Limits: Securing the
Resources of the Extended Continental Shelf in the Asia-Pacific, paper delivered at
international conference on UNCLOS in a Changing World, organised by the Advisory
Board on the Law of the Sea (ABLOS), International Hydrographic Bureau, Monaco,
35 October 2012.
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natural resources of the subsoil and sea bed of the continental shelf beneath the high
seas but contiguous to the coasts of the United States as appertaining to the United
States, subject to its jurisdiction and control.17
This was justified on the basis that the long range world-wide need for new
sources of petroleum and other minerals and their probably presence underlying
many parts of the continental shelf off the coasts of the United States, together
with the technological developments to make their recovery practicable either at
the time or in the near future.18 According to the Truman Proclamation, jurisdiction over the continental shelf was further claimed in order to ensure the conservation and prudent utilization of such resources as development took place
and on security grounds, with self-preservation compelling the coastal nation to
keep close watch over activities off its shores.19 A further Proclamation was also
made with respect to fisheries resources beyond the United States then 3 nautical
miles territorial sea limit.20
While the Truman Proclamation was not the first assertion of jurisdiction over
seabed rights beyond the limits of the territorial sea,21 it is widely regarded as a
key catalyst for the expansion of coastal State claims to continental shelf rights.
Indeed, the fact that it was the United States that was extending its jurisdiction
beyond the then generally accepted, but uncodified, 3 nautical miles territorial
sea limit, proved to be an especially powerful precedent such that many coastal
States essentially followed suit and advancing broad claims to maritime jurisdiction well beyond the limits of their territorial seas.
17 See Presidential Proclamation No. 2667 Policy of the United States With Respect to the
Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 28 September
1945, Federal Register 12303; 59 US Stat. 884; 3 C.F.R. 19431948 Comp., p. 67; XIII
Bulletin, Department of State, No. 327, September 30, 1945, p. 485. Copy included in
Edward Duncan Brown, The International Law of the Sea, Volume II (Aldershot: Dartmouth, 1994), 113.
18 Ibid.
19 Ibid.
20 It is notable, however, that the fisheries proclamation refers to the regulation and control of fishing and offers to enter into agreements with other States as opposed to the
continental shelf proclamation which claims jurisdiction and control. Copy reprinted
in American Journal of International Law, Official Documents, 40 (1946): 45.
21 Notable prior developments in this regard include the division and subsequent annexation of the seabed of the Gulf of Paria between the United Kingdom (on behalf of
Trinidad and Tobago) and Venezuela in 1942 and Argentinas continental shelf Decree
of 1944. See Charney and Alexander, International Maritime Boundaries, Volume I,
639654; and Decree No. 1, 385 Concerning Mineral Reserves, January 24, 1944, Boletin
Oficial de la Republica Argentina, Volume. 52, no. 14, 853 (17 March 1944) in United
Nations, Laws and Regulations on the Regime of the High Seas, United Nations Document St/LEG/SER.B/1, (New York: United Nations, 1951).
the el dorado effect
117
These developments reflected increasing global reliance on oil as a source
of energy, coupled with the development of technologies allowing for offshore
exploration for and exploitation of seabed oil reserves. The presence of, as well
as increasingly feasible access to, seabed oil reserves therefore arguably played
a critical role in driving the extension of maritime claims further and further
offshore.
These considerations also strongly informed negotiations at the Third United
Nations Conference on the Law of the Sea (UNCLOS III) and thus the drafting of
the relevant provisions of LOSC. In particular, the introduction of the EEZ out to
200 nautical miles was designed to address the marine resource-related concerns
of coastal States. Indeed, immediately after the codification of the EEZ concept it
was estimated that the vast extension in maritime areas subject to coastal State
sovereign rights that EEZ claims would entail would capture the vast majority
of them exploited marine resources. For example, 1984 the United Nations (UN)
Food and Agriculture Organisation (FAO) estimated that 90 per cent of marine
fish and shellfish were caught within 200 nautical miles of the coast.22 Similarly,
it was estimated that 87 per cent of the worlds known submarine oil deposits
would fall within 200 nautical miles-breadth zones of jurisdiction.23 Consequently, the drafting of LOSC and widespread claiming of 200 nautical miles
EEZs therefore represents a significant reallocation of resource rights from international to national jurisdiction.24
Escalating Energy Security Concerns
Global demand for energy from hydrocarbons, and in particular oil, continues to
escalate. Indeed, there is precious little sign that on a global scale of a move away
from reliance on oil as a key liquid fuel energy carrier in any meaningful way. This
is despite rising concerns over the availability of such resources, especially oil,
leading to increasing energy security concerns for many States. The concept of
energy security is itself has not been unambiguously defined but key components
22 Quoted in Rachel Schurman, Tuna Dreams: Resource Nationalism and the Pacific
Islands Tuna Industry, Development and Change, 29 (1998): 107136, 107.
23 Robin R. Churchill and A. Vaughan Lowe, The Law of the Sea, 3rd edition (Manchester:
Manchester University Press, 1999), 162.
24 Quentin Hanich, Clive Schofield and Peter Cozens, Oceans of Opportunity? The Limits of Maritime Claims in the Western and Central Pacific region, in Quentin Hanich
and Martin Tsamenyi (eds.), Navigating Pacific Fisheries: Legal and Policy Trends in the
Implementation of International Fisheries Instruments in the Western and Central Pacific
Region (Wollongong: Oceans Publications, 2009): 2150, 25.
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clive schofield
or indicators of energy security that are commonly identified include availability,
accessibility, affordability and acceptability.25
In the present context the term oil is taken to refer to conventional crude
oil that flows from the ground and remains liquid at surface temperature and
pressure.26 Also of note is that natural gas should not be readily conflated with
oil, though this all too frequently occurs in media coverage as well as scholarly
literature on this topic. This is primarily because of the significant limitations
that exist with respect to the capacity of gas to substitute for petroleum-derived
fuels. For example, while gas can be used as a transport fuel, the global economy
is to an extent locked in to technologies that demand oil-derived fuels.27 This is
especially the case given the long vehicle fleet turnover times of approximately
15 years for cars, 25 years for buses, and 40 years for aircraft.28
Of particular note here is the suggestion that the availability of oil resources
will be imminently constrained by the advent of peak oil. While the idea of peak
oil has provoked considerable controversy and to extent remains contentious,
especially with regard to the precise date that it may become a reality, peak oil
has gained considerable mainstream credibility.29 It should be stressed, however,
that the term peak oil does not denote the point when oil will run out but rather
the point in time when world production reaches a maximum.30 A review of peer
reviewed literature suggests that peak oil suggests a possible peaking date of
around 2015. Should this occur, as seems a realistic possibility if not inevitability,
this will lead to transition from an oil demand-led to supply-constrained economy.31
Further, while recent developments with respect to the development of shale gas
and oil might conceivably have an impact in this context, potentially pushing
the peaking date back, as yet this is uncertain. In large measure this is because
of the serious environmental concerns that have been raised in relation to
25 J. C. Jansen, W. G. van Arkel, M. G. Boots, Designing indicators of long-term energy
supply security, (Energy Research Centre of the Netherlands, 2004). See also, Nick A.
Owen and Clive H. Schofield, Disputed South China Sea hydrocarbons in perspective,
Marine Policy, 36 (2012): 809822, 811.
26 This definition therefore includes lease condensate (a mixture of heavy hydrocarbons
which condenses to form liquid under surface conditions) and liquefied petroleum gas
(LPG) (a mixture of light hydrocarbons that is gaseous under surface conditions). Ibid.,
812.
27 Ibid., 811.
28 Nick A. Owen and Clive H. Schofield, Further and Deeper: The Future of Deepwater
Drilling in the Aftermath of Deepwater Horizon Disaster, International Zeitschrift, 6/3
(December 2010), <http://www.zeitschrift.co.uk/>.
29 Ibid. See also, Owen and Schofield, Disputed South China Sea hydrocarbons in perspective, 811.
30 Owen and Schofield, Further and Deeper.
31 Owen and Schofield, Disputed South China Sea hydrocarbons in perspective, 811.
the el dorado effect
119
the development of these resourcesconcerns that are likely to limit or slow
their development in many jurisdictions.
Ongoing rises in demand for oil coupled with constraints on supply have the
potential to have major economic consequences for many States and are also
likely to drive oil prices upwards. Indeed, such energy security concerns are
already a reality for many parts of the world. For example, in East and Southeast
Asia numerous economies are characterised by high oil intensity measures and
heavy reliance on imported oil.32 Such challenges are only likely to become more
pressing as and when peak oil becomes a reality.
When set against this backdrop, the potential availability of relatively close
to home, domestic sources of hydrocarbons contained within maritime spaces
subject to overlapping claims to maritime jurisdiction provides a potent driver in
maritime boundary disputes, providing an apparently powerful justification for
robustly safeguarded national claims to maritime space. This scenario, in turn,
has led to and to an extent is sustained by significant advances in seabed resource
exploration and exploitation technologies in recent years.
Going Further and Deeper
Offshore areas are an established and increasingly important source of nonliving resources such as hydrocarbons, especially in the context of dwindling near
and on-shore reserves, growing populations and generally, therefore, resource
demands. Indeed, offshore oil has been of increasing importance in recent years
with some estimates we already depend on offshore sources for over 60 per cent
of global oil supplies (though not, it should be emphasised, reserves).33 This
trend is likely to be reinforced in the foreseeable future as oil prices rebound in
response to plateauing and declining production (especially but not exclusively
from terrestrial oil fields) coupled with increasing demand.
Improved technology is increasingly allowing economically viable exploration and exploitation of offshore oil and gas resources in more hostile conditions
including deeper waters further offshore. Dramatic technological advances in
the oil and gas industry in recent years, particularly in respect of exploration
in deep (that is, water depths in excess of 1,000 feet or 300m) and ultradeep (over
5,000 feet or at least 1,000m) water offshore areas.34 This has involved the drilling of deeper and deeper wells, as well as significant innovations in the design of
32 Ibid., 811. See also, F. Birol, Analysis of the impact of high oil prices on the global
economy, (Paris, IEA/OECD, 2004).
33 See, Offshore oil and gas around the World, Ministry of Energy, Mines and Petroleum
Resources, Government of British Columbia, available at <http://www.empr.gov.bc.ca/
OG/offshoreoilandgas/Pages/OffshoreOilandGasAroundtheWorld.aspx>.
34 Owen and Schofield, Further and Deeper.
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production platforms and in terms of geophysical exploration technologies have
significantly enhanced the chances of success in deep seabed exploration and
exploitation.35
These developments, coupled with high oil prices prior to the onset of the
global financial crisis (GFC) (which precipitated an abrupt decline in oil prices
from a peak of US$147/barrel to around US$35/barrel) led to substantial growth
in deep and ultradeep water drilling such that global deepwater production tripled from approximately 1.5 million barrels per day (b/d) to around 5 million b/d
in the period 2000 to 2009.36 At the time of writing the oil price had rebounded
to around US$100 per barrel, rebuilding the business case for deepwater exploration activities.
Notwithstanding the Deepwater Horizon disaster and the various moratoriums
on offshore drilling that the accident has inspired deep and ultra deepwater drilling for seabed hydrocarbons, deepwater drilling is therefore highly likely to be
here to stay and, indeed, is likely to increase significantly in the future. The key
reason that deepwater drilling is likely to increase in the future is that, as noted
above, there is scant indication of a sustained shift away from global reliance
on oil as the primary energy source driving the world economy. As oil supplies
become increasingly constrained yet demand continues to spiral upwards, there
is a high likelihood of increasing oil prices which, in turn, will reinforce the case
for the exploration for and exploitation of unconventional oil reserves such as
deep and ultra deepwater oil reserves.37
Oil Under Troubled Waters?
As noted above, where overlapping claims to maritime jurisdiction exist, it is
frequently asserted that the disputed maritime spaces are oil rich. The perception that significant sub-seabed resources exist in disputed areas is often a strong
one and makes for a critical factor in the longevity of such disputes as it makes
disputants highly reluctant to compromise, essentially for fear of missing out on
valuable and increasingly urgently required seabed energy resources. However,
such suggestions of an oily El Dorado beneath disputed waters are also arguably
liable to be highly misleading.
Several factors underpin this perspective. First, the existence of broad areas of
overlapping maritime claims and active jurisdictional disputes over these spaces
tends to forestall concerted exploration effortsincluding seismic surveys, let
35 Paul L. Kelly, Deepwater Oil Resources: The Expanding Frontier, in Myron H. Nordquist,
John H. More, and Tomas H. Heidar (eds.), Legal and Scientific Aspects of Continental
Shelf Limits (Leiden: Martinus Nijhoff Publishers, 2004), 414416.
36 Owen and Schofield, Further and Deeper.
37 Ibid.
the el dorado effect
121
alone exploratory drilling. Consequently, estimates regarding resource potential
of disputed areas predominantly speculative and therefore highly unreliable. In
this context it is worth noting that three key geological factors, or play elements,
are required for hydrocarbons to potentially be present. These are a highly porous
and permeable sedimentary reservoir, organic rich source rock and a low permeability seal or capping rock.38 Where these elements are absent, the presence of
hydrocarbons is extremely unlikely. In fact this situation applies for much of the
central part of the South China Sea which comprises oceanic crust.39 However,
even where surveys suggest that the key geological play elements are present, this
does not guarantee the presence of hydrocarbon resourcesexploratory drilling
is required for discoveries to be made, something that is nigh on impossible in
the context of highly contested waters such as those of the South China Sea or
environmentally extremely hostile ones such as those of the Arctic.
Second, there is persistent confusion in both the media and academic literature with respect to oil reporting terminology. In particular resource and reserve
estimates are often used interchangeably. The former term refers to oil resources
in situ while the latter relates to that fraction of the resources that may be recovered at current market price and present technical capabilities.40 While it is well
to recognise that the reserve estimate is likely to change over time, particularly as
the price of oil fluctuatesgenerally termed the price-reserve relationship
as well as with progress in oil exploration and extraction technologies, the fact
remains that only a relatively fraction of oil in the ground is recoverable due to
price and technological constraints. For example, for an underexplored frontier
province such as the South China Sea, the oil field recovery factor may be as low
as 10 per cent of the resource volume (though recovery factors of the order of
35 percent may be anticipated for better explored provinces). Such recovery factors stand in distinct contrast to those for gas fields which are generally around
75 per cent.41
The frequent confusion between resource and reserve estimates, whether from
misunderstanding, a degree of journalistic licence or an overt desire to inflate
figures with a view to emphasising the potential importance of the disputed
maritime spaces, all leads to highly misleading statements regarding the seabed
energy resource potential of disputed waters. To a large extent the lack of use
of best practice oil reporting in the literature on the potential resources contained in (or under) disputed maritime spaces, helps to explain the often wild
variations in estimates as to the resource potential of these spaces.
38 Owen and Schofield, Disputed South China Sea hydrocarbons in perspective, 813.
39 Ibid.
40 Ibid.
41 Ibid.
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For example, in the South China Sea resource estimates regarding hydrocarbons vary hugely. In 1993/94 a report published by the United States Geological Survey (USGS) provided a figure of 28,000 million barrels (Mb) of oil which,
once reserves already included in national inventories are subtracted, leads to
an estimate of undiscovered South China Sea resources of 21,500 Mb.42 In stark
contrast, characteristically optimistic Chinese resource estimates for the region
range between 105,000213,000 Mb.43 Similarly, in the Arctic context, there has
been a sustained narrative concerning a resource race or gold rush with suspected seabed energy resources a key prize.44 Such views have been sustained
by assessments such as those provided by the USGS. For instance, a 2001 USGS
survey claimed the Arctic could hold 25 per cent of the world undiscovered oil
resources.45 Subsequently, the USGSs 2008 Circum-Arctic Resource Appraisal
strongly reinforced the view that the Arctic holds great promise in terms of seabed energy resources. This assessment pointed to the existence of over seven
million km2 of Arctic continental shelf areas under less than 500 meters of
water.46 Furthermore, it posited that these shallow continental shelf areas may
constitute the geographically largest unexplored prospective area for petroleum
remaining on Earth.47 The USGS report went on to conclude that, overall, the
Arctic may hold around 22 per cent of undiscovered, technically recoverable
resources globally,48 potentially consisting of 90 billion barrels of oil (13 per cent
of global undiscovered oil); 1,669 trillion cubic feet of natural gas (30 per cent of
undiscovered gas); and 44 billion barrels of natural gas liquids (20 per cent
of undiscovered liquids).49 It is, however, important to note that, as a result of the
difficulties of gathering data in the Arctics harsh conditions, the USGS findings
42 Ibid., 815. See also, United States Energy Information Administration (EIA), Energy profile of the South China Sea (Washington: EIA, 2008), available at <http://www.eia.doe
.gov/emeu/cabs/schina.html>.
43 Ibid.
44 See,for example, Paul Reynolds, Russia Ahead in Arctic Gold Rush, BBC News, Aug. 1,
2007, http://news.bbc.co.uk/2/hi/in_depth/6925853.stm; and, Paul Reynolds, The
Arctics New Gold Rush, BBC News, Oct. 25, 2005, http://news.bbc.co.uk/2/hi/business/
4354036.stm.
45 It is notable that the USGS findings relate to undiscovered oil and that a summary of
the report does not, in fact, even make mention of the Arctic specifically. See, <http://
pubs.usgs.gov/fs/fs-062-03/FS-062-03.pdf>.
46 Circum-Arctic Resource Appraisal Assessment Team, USGS; Peter H. Shauffer
(ed.), Circum-Arctic Resource Appraisal: Estimates of Undiscovered oil and Gas North
of the Arctic Circle (USGS, 2008), paragraph 3 available at <http://pubs.usgs.gov/
fs/2008/3049/fs2008-3049.pdf>.
47 Ibid.
48 Press Release, USGS, 90 Billion Barrels of Oil and 1,670 Trillion Cubic Feet of Natural
Gas Assessed in the Arctic, July 23, 2008, <http://www.usgs.gov/newsroom/article.asp?
ID=1980&from=rss_home>.
49 Circum-Arctic Resource Appraisal Assessment Team, USGS, 7.
the el dorado effect
123
were based on a probabilistic analytical methodology.50 Other surveys, including ones founded on detailed geoscientific analysis of individual Arctic basins,
ground-truthed by oil industry data on exploration wells and existing discoveries,
offers a significantly less optimistic picture.51
A further critical consideration here is that the oil and gas assessments for the
South China Sea and Arctic Ocean mentioned above are all resource rather than
reserve estimates. Thus, to take the 2008 USGS figures for the Arctic as an example, even applying a relatively optimistic estimated recovery rate of 35 per cent
of oil reserves translating to proven reserves (rather than the aforementioned
industry rule of thumb of 10 per cent for frontier provinces), the USGSs figure
of 90 billion barrels of oil rapidly scales down to potential reserves of 31.5 billion
barrels. When it is considered that global consumption of conventional oil (that
is, crude oil and condensates) totaled approximately 26.9 billion barrels in 2010
alone,52 it becomes clear that Arctic oil, even if it was immediately and readily
available, will not resolve global energy security dilemmas alone.
It is also notable that in the cases of the Arctic and South China Sea, these
areas have both been reported to be predominantly gas-prone. As previously
noted, there exist considerable limitations on the potential for gas to be used as
a substitute for oil. Further, the likely presence of gas rather than oil resources
necessarily has implications for their development because remote gas presents considerable transportation challenges.53 Moreover, many estimates of
gas resources tend to be inflated through the inclusion of unconventional gas
hydrate resources. While technically not incorrect such estimates are misleading because although gas hydrates are abundant there exist significant and as
yet unresolved technical barriers to their commercial production. Indeed, gas
hydrates have generally considered as the most expensive and technically challenging of all unconventional gas resources.54 Although there have been recent
50 Ibid., 4.
51 The joint Wood MacKenzie and Fugro Robertson study, Future of the Arctic, released
on 1 November 2006, provided estimates of three million barrels of oil per day and
five million barrels of gas equivalent per day at peak production. Press Release, Wood
Mackenzie & Fugro Robertson, Future of the Arctic (1 November, 2006) as reprinted in
Dave Cohen, Arctic Dreams, Energy Bulletin, 25 April, 2007, <http://www.energybulletin.net/node/29151>. Overall, the November 2007 report concluded that its findings
were disappointing from a world oil resource base perspective and calls into question the long-considered view that the Arctic represents one of the last great oil and
gas frontiers and a strategic energy supply cache for the US. Wood Mackenzie & Fugro
Robertson, Arctic role Diminished in World Oil Supply, Pipeline & Gas Journal, 234/2
(February 2007), available at <http://www.epmag.com/archives/newsAnalysis/102.htm>.
52 U.S. Energy Information Administration (EIA) 2011, available at <http://www.eia.doe
.gov/>.
53 Owen and Schofield, Further and Deeper.
54 Owen and Schofield, Disputed South China Sea hydrocarbons in perspective, 813.
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clive schofield
reports of significant progress in the development of gas hydrates, the technologies concerned remain in their infancy at the time of writing.55 Further, the
exploitation of gas from shale deposits on land also potentially undermines the
case for the development of hydrates offshore, at least in the immediate future.
As noted above, the term conventional oil includes crude oil that flows at
surface temperature and pressure. Conversely, unconventional crude oil includes
resources such as those derived from tar sands and oil shales that do not do so.
However, many unconventional oil classifications also include resources located
in extreme or highly sensitive environments that are likely to be extremely challenging to access and develop, such as those located in the Arctic.
Finally, it is worth noting key requirements and restrictions of the oil and gas
industry. In particular, exploration for and development of oil and gas resources
necessarily presupposes that jurisdictional disputes will necessarily need to be
resolved before such activities can commence in earnest. International oil and
gas companies tend to be extremely reluctant to invest the enormous sums necessary to conduct offshore exploration, let alone exploitation, operations in the
absence of fiscal and legal certainty and continuity. Seabed energy resources
located in disputed areas, which could potentially have a crucial role to play
in the economic well-being and political stability of the coastal states involved,
therefore tend to remain untapped in the absence of maritime boundary delimitation or, alternatively, agreement on joint development. Additionally, substantial lead time is required for oil and gas projects to reach fruition. In a frontier
province a lead-time of a decade from discovery to the production of first oil
can be regarded as realistic.56 This, in turn, has implications for the potential role
of disputed oil and gas resources to address looming, if not immediate, energy
security concerns.
Reappraising the Oil Factor
Significant creeping coastal State jurisdiction, in large part culminating in the
drafting of LOSC in spatial terms at least, has led to significant extensions in
national claims to maritime jurisdiction offshore. As a result, broad areas of
overlapping claims to maritime jurisdiction have come into existence. This trend
has been reinforced by recent assertions by coastal States concerning rights over
overlapping areas of continental shelf located seawards of their 200 nautical mile
55 See, United States Department of Energy, U.S. and Japan Complete Successful Field
Trial of Methane Hydrate Production Technologies, 2 May 2012, http://energy.gov/
articles/us-and-japan-complete-successful-field-trial-methane-hydrate-productiontechnologies; and, BBC, Japan extracts gas from methane hydrate in world first,
12 March 2013, http://www.bbc.co.uk/news/business-21752441.
56 Ibid., 815.
the el dorado effect
125
limits. Moreover, the exact dimensions of such overlapping claims areas is often
somewhat uncertain. What is clear, though, is that valuable marine resources,
including seabed energy resource may well lie within these marine spaces subject
to multiple jurisdictional claims. What is also usually unknown, however, is the
scale of the resources concerned and, with respect to reserves of oil and gas for
instance, their location within the disputed zone. In this context, joint development may offer an attractive option to overcome the deadlock.57
Additional relevant factors in the equation include significant advances and
innovations in exploration and exploitation technologies, allowing for the development of seabed resources in deeper waters and more hostile conditions, further from shore, coupled with heightened energy security concerns.
It is suggested that the considerations outlined above should lead to some substantial reappraising of the oil factor in maritime boundary disputes. Reports of
the seabed resources contained within areas of overlapping maritime claims are
often highly speculative, poorly supported if not wholly ill-founded and therefore
highly misleading. Consequently, there are substantial reasons to suggest that
even should such resources exist, they may well not be of the scale required or
available to be developed swiftly enough to realistically impact on current and
escalating global and regional or even national energy security concerns.58
Accordingly, characterisations of regions featuring multiple overlapping maritime claims and disputes such as the South China Sea as Chinas Persian Gulf 59
or perceptions that regions featuring hostile as well as sensitive environments
such as the Arctic hold a substantial portion of global undiscovered energy
resources and as a result will play an important role in meeting growing global
energy demand60 are often far-fetched, unhelpful from a dispute resolution perspective and offer a misleading impression that should the suspect resources of
these regions be accessed, current energy security concerns will be meaningfully
addressed.
This is not to argue that substantial seabed hydrocarbon resources do not, in
fact, exist in these areas, just that they are highly unlikely to offer some kind
57 For a review of joint development arrangements see, Clive Schofield, Blurring the
Lines: Maritime Joint Development and the Cooperative Management of Ocean
Resources, Issues in Legal Scholarship, Berkeley Electronic Press, Vol. 8, no. 1 (2009)
(Frontier Issues in Ocean Law: Marine Resources, Maritime Boundaries, and the Law
of the Sea), Article 3.
58 Ibid., 815817.
59 See, for example, Chen, Xiao, Naihai de ziyuan shijie [The world of resources in
the South China Sea], Sanlian shenghuo zhoukan [Sanlian life weekly], no. 46 (2010),
15 November 2010, 6267, 64.
60 United States, Memorandum from The White House Office of the Press Secretary, Presidential Directive on Arctic Region Policy, III(B)(5) (9 January 2009), <http://www.nsf
.gov/od/opp/opp_advisory/briefings/may2009/nspd66_hspd25.pdf>.
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of silver bullet for increasingly urgent contemporary energy security worries.61
Consequently, the potential seabed energy resources of disputed areas should be
reappraised such that the oil factor is kept in perspective and not overplayed.
Nonetheless, the lure of offshore El Dorados remain compelling and are therefore
likely to prove to be hard to erase.
61 Owen and Schofield, Disputed South China Sea hydrocarbons in perspective, 820.
chapter five
Oil and Water: Assessing the Link between Maritime Boundary
Delimitation and Hydrocarbon Resources
John W. Donaldson*
Introduction
Over a third of maritime space around the world falls under the claim or jurisdiction of coastal and island States under the provisions of the United Nations
Convention on the Law of the Sea, 1982 (LOSC). Yet less than 50 per cent of
possible maritime boundaries have been agreed by neighbouring States. After
peaking in the late 1970s just prior to the conclusion of LOSC, the number of
maritime boundary agreements concluded per year has dwindled to just a handful. This has been accompanied by a concurrent rise in the number of maritime
boundaries delimited through third-party adjudication and arbitration.
Off shore hydrocarbon interests have played a key role in the development of
modern law of the sea, but they have appeared in recent years to become almost
inextricably linked to the delimitation of maritime boundaries. Ranking the relative impact of oil and gas interests on maritime boundary agreements concluded
in the last 30 years, this chapter will critically examine the relationship between
the definition of a maritime boundary and the presence of offshore hydrocarbon
resources. While certainly paving the way for efficient exploitation, it is hoped
that the presence of hydrocarbons should not be the sole prerequisite for States
to clearly define the limits of their maritime jurisdiction. If this link is shown to
have grown stronger in recent years, it raises potential questions about the relative balance between States rights to the resources of their maritime space, and
the responsibilities of marine management.
* From 2003 to 2012, John Donaldson was the senior research associate at the International Boundaries Research Unit (IBRU) in the Geography Department at Durham University (UK). A Fellow of the Royal Geographical Society, Dr Donaldson holds an MA in
international boundaries from the Law Department at Durham University and a PhD
from Durhams Geography Department. He now lives in Auckland and currently serves
as the Deputy Head GEOINT for National Policy, Plans and Partnerships at GEOINT New
Zealand (GNZ) part of the New Zealand Defence Force. This chapter was written during
the authors tenure at IBRU and opinions in the chapter are the authors alone.
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Maritime Delimitation: A Specific Spatial Perspective
International maritime boundary delimitation has generated substantial literature, especially in the decades that have followed the conclusion of United
Nations Convention on the Law of the Sea (LOSC)1 in 1982, from the reviews of specific delimitations best evidenced by the International Maritime Boundary series
through to insights from individual scholars and practitioners.2 With a number
of notable exceptions from the geographic perspective provided, for example,
by Prescott and Schofield,3 and technical considerations such as by Pratt and
Schofield and Carleton,4 much of this literature has originated within the field
of the international law of the sea. Since maritime boundary delimitation
requires the direct or indirect consent of neighbouring coastal and island States,
it is unsurprising that the international law of the sea engages so closely with
these practices, being both developed by, as well as directive of, the interactions
of State actors. Drawing out unique characteristics of delimitation in specific
contexts, this literature has provided valuable insights into the methodologies
and techniques for delimiting maritime boundaries based on State practice and
international jurisprudence.
Almost by necessity much of this literature is retrospective to the actual
delimitation processes that have often gone on behind closed doors, either within
bilateral negotiations between government officials or within the deliberations of
1 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
2 Jonathan Charney and Lewis Alexander (eds.), International Maritime Boundaries, Volumes I and II (Dordrecht: Martinus Nijhoff Publishers,1993); Jonathan Charney and
Lewis Alexander (eds.), International Maritime Boundaries, Volume III (Dordrecht:
Martinus Nijhoff Publishers, 1998); Jonathan Charney and Robert Smith (eds.), International Maritime Boundaries, Volume IV (Dordrecht: Martinus Nijhoff Publishers, 2002);
David Colson and Robert Smith (eds.), International Maritime Boundaries, Volume V
(Leiden: Martinus Nijhoff Publishers, 2005); Nuno Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process (Leiden:
Martinus Nijhoff Publishers, 2003); Gerard J. Tanja, The Legal Determination of International Maritime Boundaries (Deventer: Kluwer Law and Taxation, 1990); Prosper
Weil, The Law of Maritime DelimitationReflections (Cambridge: Grotius, 1989); Gerald
Blake (ed.), Maritime Boundaries and Ocean Resources (London: Croom Helm, 1987);
S. P. Jagota, Maritime Boundary (Dordecht: Martinus Nijhoff Publishers, 1985).
3 Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, 2nd
Edition (Leiden: Martinus Nijhoff Publishers, 2005).
4 Martin Pratt, The role of the technical expert in maritime delimitation cases, in Rainer
Lagoni and Daniel Vignes (eds.), Maritime Delimitation (Leiden: Martinus Nijhoff Publishers, 2006), 7994; Clive Schofield and Chris Carleton, Technical consideration in the
Law of the Sea dispute resolution, in Alex Oude-Elferink and Donald Rothwell (eds.),
Oceans Management in the 21st Century: Institutional Frameworks and Responses (Leiden:
Martinus Nijhoff Publishers, 2004), 231254.
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tribunals. The qualitative analysis of individual contexts and possible delimitation trends has helped clarify the ambiguous provisions for delimitation methodology in articles 15, 73 and 84 of LOSC, largely in pursuit of the nebulous goal
of achieving an equitable solution. However, by concentrating on the analysis of
individual delimitations, focusing on the specific geographic and political contexts, have the existing discourses lost sight of some of the fundamental questions about the division of maritime space that may be posed by looking across
individual scenarios?
This chapter aims to take a slightly different tack towards maritime delimitation by using a more quantitative analytical approach and see if this can be
useful in posing different questions about the role of maritime boundaries in the
greater context of marine management. The objective here is to look broadly
across thirty years of maritime boundary agreements and concentrate on the relative influence that the presence of offshore hydrocarbon resources has had on
maritime delimitation since 1980. Unlike previous analyses of specific state practice and jurisprudence, the focus is not on understanding how offshore hydrocarbon activity (such as the designation of concession areas) has influenced the
actual course of specific maritime boundaries.5 Instead, this examination seeks
to measure the relative influence that offshore hydrocarbon activity has had as a
motivating factor in the actual conclusion of maritime delimitation agreements.
While the link between hydrocarbon activities and the delimitation of maritime
boundaries may seem self-evident, there has been no attempt to measure the link
quantitatively and make it explicit.
The presence of mineral resources in border areas on land continues to influence methodologies used by neighbouring governments in the physical marking
boundaries on the ground, whereby areas rich in resources have prompted more
rigorous demarcation.6 Such an influence may again seem self-evident but exposing that connection explicitly provided a rich avenue of critique into the relationship between state and territory.7 This chapter takes a similar line of inquiry
offshore, to see if the presence of hydrocarbon resources in particular has drawn
coastal and island States attention to the definition of maritime space under
their jurisdiction, bringing with it a very specific spatial perspective. It will begin
5 The International Court of Justice has indicated that offshore concession areas may
constitute a legally relevant circumstance in maritime delimitation (see Judgment Continental Shelf case (Tunisia/Libyan Arab Jamahiriya) (1982) ICJ Reports 18) but only if it
represents an express or tacit agreement by the two states (Judgment of 10 October
2002, Land and Maritime Boundary case (Cameroon v. Nigeria, Equatorial Guinea intervening) (2002) ICJ Reports paragraph 304).
6 John Donaldson, Pillars and perspective: demarcation of the Belgian Congo-Northern
Rhodesia boundary, Journal of Historical Geography, 34/3 (2008): 471493.
7 John Donaldson, Marking Territory: Demarcation of the DRC-Zambia boundary 1894 to
the present (PhD thesis, University of Durham, 2010).
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by explaining the methodology used in the quantitative research before exposing
two concurrent trends that have emerged in maritime boundary agreements since
1980: the steady decline in the number of delimitation agreements concluded per
year, and the discernible increase in the influence of hydrocarbon interests as a
motivation for concluding agreements. The chapter does not purport to explain
conclusively why these trends have emerged, as there are serious limitations to
quantitative analysis, although some hypothetical causes will be noted. Instead,
through examining the inter-relationship between the two trends the chapter will
raise questions about the dominance of a particular spatial methodology.
As with land boundaries, the core concept of delimiting maritime boundaries
is to prevent disputes between neighbouring States (and their actors) that might
arise as a result of having overlapping claims to the same maritime space. However, as Hance Smith warns the pre-occupation with political and jurisdictional
boundaries is really only suitable for allocation problems which involved fixed
location activities.8 Other scholars have emphasised the multi-dimensionality
of maritime space both in terms of the rights to resources and responsibilities
for managing nationally-claimed maritime space under LOSC9 and as a multidimensional, socially constructed space.10 While the relationship between
maritime delimitation and resources is certainly not new,11 the increasing (or
continuing) influence of one type of resource (hydrocarbons) raises concerns that
the particular spatial technique for managing fixed resources may be overshadowing other aspects of marine stewardship in maritime border areas. With its
emphasis on exclusivity and focus on rights, this spatial perspective contributes
to the contested nature of maritime space and could be dissuading neighbouring States from finding alternative ways of dividing their maritime jurisdictions.
In other words, the pursuit of an equitable solution in maritime delimitation
should not inevitably lead to a single two-dimensional line through multidimensional maritime space.
8 Hance Smith, Maritime boundaries and the emerging regional bases of world ocean
management, in Blake, Maritime Boundaries and Ocean Resources, 88.
9 Jon Van Dyke, Giving teeth to the environmental obligations in the LOS Convention,
in Oude Elferink and Rothwell, Oceans Management in the 21st Century, 167186; Ivan
Shearer, Oceans management challenges for the Law of the Sea in the first decade
of the 21st century, in Oude Elferink and Rothwell, Oceans Management in the 21st
Century, 118; Hance Smith (ed.), The Oceans: Key Issues in Marine Affairs (Dordecht:
Kluwer Academic, 2004); Martin Tsamenyi and Max Herriman, Ocean energy and the
Law of the Sea: The need for a protocol, Ocean Development and International Law,
29/1 (1998): 319.
10 Philip Steinberg, The Social Construction of the Ocean (Cambridge: Cambridge University Press, 2001).
11 See especially the historical development of the concept of maritime delimitation in
Weil, The Law of Maritime Delimitation, 2145.
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Research Methodology and Trends
Chronology of Maritime Boundary Agreements
Using quantitative data in any analysis is inherently problematic, and regarding maritime boundaries even establishing an accurate set of potential intersovereign state boundaries is more art than science. Based on the current
geopolitical situation, there are 368 potential bilateral maritime boundaries around the world, composed of a total of 431 possible non-contiguous sections; with, for example, Canada-USA being measured as one bilateral maritime
boundary with 4 non-contiguous sections.12 Non-agreed potential boundaries are
measured in accordance with strict equidistance which could vary if alternative
arrangements are delimited, usually under specific geographic conditions. This is
particularly the case in concave coastline configurations where a possible maritime corridor for one State with a comparatively short coastline could generate
additional new boundaries that would not be counted under strict equidistance
(such as possible Democratic Republic of Congo maritime boundaries with Congo
or Gabon). Therefore, even the total number of potential bilateral boundary lines
is difficult to fix precisely and can be affected by specific contexts.
Similarly, when looking across thirty years of maritime boundary agreements
there exists a constellation of different geographical, political, economic and
social contexts making it difficult to draw definitive conclusions. Beyond the
contextual variations, the main limitation of the methodology for this particular
research relates to the implied homogeneity of maritime boundary agreements.
It is acknowledged that the conclusion of a maritime boundary agreement does
not necessarily indicate definition of the full length of a single maritime boundary between neighbouring States. Many agreements define only partial sections
of possible boundaries, some agreements define only single tripoints, some define
joint development zones rather than lines and others may simply define the
methodology (such as equidistance) by which a future boundary is to be defined.13
Despite the variations in content of the agreements, the spatial perspective is
largely consistent, using specified geographic points to delimit lines which clearly
define the limits of abutting maritime jurisdictions, either in the form of a boundary or in the definition of distinct areas (joint development, shared fishing or
unitization area).14
12 Sections are considered non-contiguous if they are within 400 nm of the respective
baselines, excluding situations where the sections may be joined across a potential area
of extended continental shelf. For example, Mexico and the USA are considered to have
two non-contiguous sections in the Gulf of Mexico.
13 Also highlighted in Clive Schofield, An incomplete mosaic, in Doris Wastl-Walter
(ed.), The Ashgate Companion to Border Studies (Farham: Ashgate, 2011), 670.
14 See for example Yoshifumi Tanakas five principal systems of maritime delimitation in
Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation
(Oxford: Hart Publishing, 2006), 2032.
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john w. donaldson
Figure 5.1Maritime Delimitation Agreements from pre-1950 per five year periods.
In the course of this research, the data collected on each agreement from 1980
through to the present identified: the signatory States, the type of boundary
arrangement (including: territorial sea, continental shelf, EEZ, multi-zone, joint
development zone, tripoint or combinations) and the year of signature. The year
of signature was taken to best represent the moment when the States involved
felt politically compelled to define that particular section of their maritime space.
Other dates may have been chosen such as: the dates of domestic ratification,
date the agreement was brought into force, and/or the date of deposit with the
United Nations. However, the act of signing an agreement at the very least commits the parties not to act in ways which would defeat the intent and purpose
of a signed treaty.15
The first and most overriding trend identified in the data is the gradual decline
in the number of maritime delimitation agreements being concluded per annum.
Although this study focused on agreements signed since 1980, it is worth noting that previous data collected by the International Boundaries Research Unit
(IBRU) dating back to pre-1950 shows a dramatic increase in the number of maritime delimitation agreements concluded in the late 1970s (see Figure 5.1). This
likely coincided with the imminent conclusion of LOSC in 1982, as States sought
15 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, entered
into force 27 January 1980, 1155 UNTS 331, article 18,
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Figure 5.2Maritime Delimitation Agreements signed/agreed per annum, 19802012.
to define boundaries before the changes in jurisdictional definitions.16 However,
since 1980, the main discernible trend is the gradual decrease in maritime boundary agreements being signed per year.
Figure 5.2 charts the number of agreements signed/agreed per year since
1980. The spikes in 1997, 2001 and 2011 in particular can partly be attributed to
two tripoint agreements which appear in the data as two individual agreements
(1997 Estonia-Latvia-Sweden, 2001 Estonia-Finland-Sweden and 2011 ComorosMozambique-Tanzania). The spike in 2012 can be attributed to the unprecedented series of seven bilateral and one trilateral maritime boundary agreements
that were signed by seven South Pacific island nations in a single day at the
2012 Pacific Islands Forum.17 Few details about these signed agreements have
been made public, as is the situation with the four agreements signed between
Comoros, Mozambique and Tanzania during a similar regional initiative on
5 December 2011, all of which are pending domestic ratification.18 Alongside the
16 Chris Carleton, Maritime delimitation in complex island situations: a case study on the
Caribbean Sea, in Lagoni and Vignes, Maritime Delimitation, 171.
17 Pacific Islands Forum Secretariat, Pacific leaders settle areas of National Maritime
Jurisdiction, Press Release 107/12, 17 August 2012. The Pacific nations involved included:
Cook Islands, Kiribati, Marshall Islands, Nauru, Tokelau and Tuvalu.
18 Pending the release of further details following ratification, it is assumed that all of
these agreements delimit single multi-purpose boundaries for all relevant claimed
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john w. donaldson
historic eight agreements in the South West Pacific, two maritime boundary cases
were also concluded in 2012. This included the long-running Colombia-Nicaragua
maritime boundary determined by the International Court of Justice (ICJ), and
the Bangladesh-Myanmar maritime boundary adjudged by the International Tribunal for the Law of the Sea (ITLOS) in its debut delimitation case. Even taking
into account these periodic anomalies, the trend line over the thirty year period
shows a slight decrease from an average of around six agreements per year in
1980, to around five agreements per year in 2012.
The gradual decline in the number of maritime boundary agreements reached
per year may be the result of numerous contextual factors that are well beyond
the quantitative limitations of this study. Overall, it can be suggested that States
have reached agreement on those less contentious boundaries, such as situations
where there is much less disparity in overlapping claims, or without inter-related
land sovereignty disputes. For example, the historic eight agreements signed in
2012 by South West Pacific island presented relatively few contentious issues
given their respective geographic contexts.19 Perhaps the possible maritime
boundaries that remain undefined or not subject to some form of agreement are
more contentious, or more geographically complex, resulting in a greater degree
of variation in delimitation claims, such as potential delimitation scenarios in the
South China Sea and the Arctic. Whatever the varied reasons behind the overall
decline since 1980, the current rate in 2012 stands at around 5 agreements signed
per year.
Currently there are 181 potential maritime boundaries (199 non-contiguous
sections) without any form of formal agreement related to them. Based on the
current rate it will be approximately 36 years before all of the potential maritime
boundaries around the world have some form of agreement. In addition, there
may be an increase in the overall number of potential boundaries, for example
as overlapping submissions to areas of extended continental shelf become clear
and potentially as new coastal and island States gain independence, as well as a
consequence of future delimitation scenarios that dont necessarily follow strict
equidistance. Of course this makes the serious problematic assumption that all
potential boundaries currently with an agreement are fully delimited and that
each future agreement defines the respective boundary in its entirety. In reality, there are significantly more than 181 agreements required to define all the
potential boundaries in their entirety. To contrast this with the pace of maritime
maritime zones. These two regional initiatives whereby a number of neighbouring
states negotiate and coordinate their delimitation agreements cooperatively present
an fascinating and positive development worthy of further reflection.
19 Although details of the agreements have not been released, it is unlikely that any of the
seven bilateral boundaries will deviate substantially from the equidistance lines since
the geographic situations are relatively similar, between widely separated and relatively
similar sized islands.
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boundary delimitation in the 1970s leading up to the signing of LOSC in 1982
when over eight agreements were signed on average every year, it is clear that
the pace of delimitation is slowing and seems to have passed its notional high
point.
The LOSC negotiations in the 1970s certainly brought maritime issues to the
forefront of many coastal and island States policies, and this is reflected in the substantial number of agreements reached during this period.20 In the three decades
since 1980, there is no single and clearly apparent reason for the gradual decline
in delimitation agreements reached per year. Beyond existing disputes and possible political tensions within specific contexts, it may be that many neighbouring
coastal and island States around the world do not have the capacity or interest
in defining the limits of their maritime jurisdictions through bilateral or multilateral delimitation. Thinking about what does and does not motivate neighbouring
States to define their maritime jurisdictional limits led to this investigation into
the relative influence of one aspect of maritime activity that seems to be perennially associated with delimitation: offshore hydrocarbon exploration.
Assessing Hydrocarbon Motivation
In ranking the relative influence of hydrocarbon resources that may have
encouraged the conclusion of maritime boundary agreements, this research
relied heavily on the highly-respected International Maritime Boundaries (IMB)
series.21 As most scholars of maritime boundaries will recognise, the IMB series
provides the most comprehensive analysis of individual maritime boundary
agreements and adjudicated decisions. Each analysis includes sections on various issues (largely geographic) that may have influenced the actual course of
the delimited boundary, as well as the political and economic conditions under
which the agreement was concluded. This provides insight into the economic
considerations that may have motivated the States to reach an agreement, such
as the presence of known or prospective hydrocarbon resources.
The IMB series was the main source of empirical information, but this was
further supplemented from media sources related to specific agreements. For
those agreements reached since 2005,22 research relied on news reports and
press releases to measure the relative influence of hydrocarbon interests. In some
cases, the States themselves admit that the conclusion of a maritime boundary
agreement was intended to pave the way for hydrocarbon exploration, as Norway
and Russia indicated in the press releases announcing the ratification of their
20 Carleton, Maritime delimitation in complex island situations, 171.
21 Charney and Alexander, International Maritime Boundaries Volumes IIII; Charney and
Smith, International Maritime Boundaries Volume IV; Colson and Smith, International
Maritime Boundaries, Volume V.
22 The recently released Volume VI was unavailable at the time of research.
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john w. donaldson
2010 maritime boundary agreement in the Barents Sea.23 While in other cases,
activities such as the auctioning of concession areas and exploratory surveys may
have prompted a dispute that in turn may have been resolved through third-party
arbitration, as was the situation that pre-empted the 2007 Guyana-Suriname
maritime boundary arbitration.24
Based on the information from the IMB, news reports and other relevant
sources, every boundary agreement from 19802011 was given a simple numeric
code (03) reflecting the relative influence of hydrocarbon activity on the conclusion of that agreement. The scale was calibrated as follows:
3 = Indicates that there was significant offshore hydrocarbon activity in the
maritime area that was delimited. This would include: known or proven
hydrocarbon fields in the maritime area to be delimited; active exploration in the areas to be delimited; and/or overlapping claims that may have
been restricting exploration activity. In these situations, no other economic
resource issue (for example, commercial fishing, seabed mining) that had a
comparable influence in motivating the parties to delimit.
2 = Indicates that offshore concession areas may or may not have been already
designated by the neighbouring States in the area delimited. While there may
by little exploration activity, there were highly rated hydrocarbon prospects
in the area to be delimited and this was a main consideration of the States
party to the agreement.
1 = Indicates that while there may have been prospective hydrocarbon resources
in the maritime areas to be delimited, this was just one of several other economic or other issues (such as fishing resources, navigation issues) that motivated the States to reach an agreement.
0 = Indicates that prospective or proven hydrocarbon resources were not present
in the maritime areas to be delimited and/or hydrocarbon activity had no
influence on the conclusion of the maritime boundary agreement. In many
of these cases, other resources such as fishing rights (especially) were influential but hydrocarbon resources were not a relevant issue that motivated
the delimitation agreement.
Figure 5.3 charts the coding of hydrocarbon influence for each maritime boundary agreement since 1980, based on the 03 scale outlined above. Based on five
23 Norwegian Ministry of Foreign Affairs Norway and Russia ratify treaty on maritime
delimitation, Press Release, June 7, 2011.
24 See, especially the Award of the Arbitral Tribunal in the Matter of an Arbitration between
Guyana and Suriname, September 17, 2007 (Permanent Court of Arbitration), paragraphs 148152 http://www.pca-cpa.org/showfile.asp?fil_id=664.
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Figure 5.3Hydrocarbon Influence per Delimitation Agreement, 19802012.
year blocks, the average rank of hydrocarbon influence on the conclusion of individual maritime boundary agreements is as follows:
201120120.64 (14 agreements)
200520101.95 (22 agreements)
200020041.71 (31 agreements)
199519990.67 (27 agreements)
199019940.53 (30 agreements)
198519890.69 (32 agreements)
198019840.22 (23 agreements)
The dramatic increase25 in the influence of hydrocarbon interests as a motivating
factor in the delimitation of maritime boundaries could be explained, in part, by
the technological advances that have pushed exploration and production activities into deeper water. Consequently, the resources of maritime areas farther offshore have become more commercially viable for both commercial and national
operators. However, expanding limits of hydrocarbon exploration technology
does not correlate with the decrease in the overall number of maritime boundary
agreements being made per year. It would be reasonable to expect that greater
offshore activity, with more rigs and better technology providing access to deeper
waters, would prompt an overall increase in the number of maritime boundary
agreements as States seek to define concession areas farther offshore. Instead
the current trend suggests that in the near to medium future there will be fewer
maritime delimitation agreements concluded per year, but those delimitations
are more likely to be linked with hydrocarbon activity.
25 This even accounts for the unprecedented eight bilateral and trilateral agreements
in the Pacific Islands in August 2012, none of which had any apparent hydrocarbon
influence.
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john w. donaldson
Fewer Delimitation Agreements, Greater Hydrocarbon Influence
The concurrent slowing of maritime boundary agreements concluded per year
and the increasing influence of hydrocarbon resources as the key motivation
in concluding an agreement suggests that States are paying more attention to
the delimitation of maritime space where there is the presence of largely fixed/
contained, exploitable natural (predominantly non-renewable) resources. Rather
than exacerbating or complicating delimitation problems,26 this trend indicates
that the presence of non-renewable and generally fixed resources such as hydrocarbons has actually encouraged neighbouring States to conclude a delimitation
agreement.
From a legal perspective there is nothing inherently problematic about nonState actors, such as offshore exploration companies, encouraging governments
to define maritime boundaries, as long as the result is mutual agreement between
neighbouring sovereign actors who have recognised claims to jurisdiction. Hydrocarbon activities are an important component of marine management and can
provide much needed revenue for national coffers, particularly for developing
States. Maritime boundaries turn maritime space into distinct geometric polygons that can then be more easily subdivided into individual parcels (concession
areas) to facilitate exploration activities. This spatial division clarifies jurisdiction
exclusive to a single relevant authority, such as a specific State ministry or possibly a joint development commission, and thereby reduces the legal (as well as
resulting political and security) risk for operating companies. Maritime space that
lacks clear jurisdictional definition contains spatial, and therefore jurisdictional,
ambiguity that is not conducive to the efficient exploitation of non-renewable
resources within that space. In areas where States may have overlapping claims
to jurisdiction, operators could see their operations challenged by neighbouring
States, even those with a generally good diplomatic relationship.27
However, the increasing influence of hydrocarbons as a motivating factor for
States to negotiate the limits of their maritime jurisdictions does raise some concerns. The two trends suggest that in the future maritime boundaries are more
likely to be agreed when they pass through areas with potential hydrocarbon
resources. The two trends also indicate the possibility that the increasing influence of hydrocarbon interests may be dissuading States from delimiting maritime
boundaries and contributing to the overall decline in delimitation agreements.
26 Weil, The Law of Maritime Delimitation, 4.
27 Just two examples include: In May and June 2011, Vietnam accused Chinese vessels of
interfering with Vietnamese contracted oil survey vessels (Vietnamese protest over
maritime dispute with China Deutche Welle, June 13, 2011). In June 2003 a Malaysian
patrol boat chased a Bruneian-contracted Total survey vessel from an area of overlapping claims (M. Hurle, Brunei-Malaysian foreign minister to address maritime boundary with Brunei, IHS Daily Insight, July 7, 2003).
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Could the influence of hydrocarbon actors be exacerbating the contested nature
of maritime space, making States more reluctant to delimit maritime boundaries
for fear of the political repercussions of potentially losing out on potential valuable resources? Or does it suggest that the functionality of maritime boundaries
is being restricted to activities related to the exploration of one particular type
of marine resource?
Delimiting Maritime Rights and Responsibilities: A Spatial Perspective
These questions recall some of the early debates in international maritime law
about the allocation of State jurisdiction over maritime space. While the assertion
of naval/military power (canon-shot rule) dominated early conceptions about
the limits of maritime jurisdiction, the development of modern international
maritime law has been more closely linked to rights over resources.28 While fishing rights have certainly played a significant role in the development of modern
Law of the Sea (particularly multilateral-based law), the provisions for delimiting
maritime boundaries are very much rooted in the non-living economic resources
of the continental shelf, as opposed to management of the (living and largely
mobile) resources of the water column. One of the most recognised catalysts for
modern international law of the sea was of course the 1945 Proclamation with
Respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf
(or Truman Proclamation) in which the US famously claimed that the resources
of the continental shelf extending beyond the territorial sea were to recognised
as appertaining to the United States, subject to its jurisdiction and control.29
Preceding the Truman Proclamation on the Continental Shelf by just three years
was arguably the first modern agreed maritime boundary between the UK (on
behalf of what is now Trinidad and Tobago) and Venezuela which was inextricably linked to the exploration of offshore petroleum resources.30 Perhaps by
necessity, the allocation of continental shelf space drew on the legal precedents
related to land territory. In the context of the Trinidad and Tobago-Venezuela
delimitation, Jagota indicates that by,
recognizing each others claims to the respective areas and its resources, and providing for mutual abstention from exercising any right across the boundary line...
the legal doctrine justifying this action was thus discovery and occupation, and the
expected acquiescence from other States.31
As Gerard Tanja points out, the need for maritime boundaries was borne out of
coastal and island States claims to maritime space:
28 See especially, Steinberg, The Social Construction of the Ocean.
29 See especially, Jagota, Maritime Boundary, 6 and Tanja, The Legal Determination of
International Maritime Boundaries, 22.
30 Jagota, Maritime Boundary, 5.
31 Ibid.
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john w. donaldson
international delimitation law is a priori of a subsidiary nature and will only be
turned to after conflicting claims have materialized or when it is likely that they will
occur in the near future.32
Claims are made by States to what they believe to be their own, meaning that
the delimitation of a maritime boundary (unless neighbouring claims coincide
exactly) inevitably takes on a contested atmosphere. Describing the law related to
maritime boundary delimitation as rules of the game, Weil reveals the pervading element of contestation within this process of dividing national jurisdiction:
Maritime delimitation must, inevitably, be a painful process since, by its very definition, it implies an amputation of the area which each of the States involved could
hope to appropriate33
This spatial perspective depicts maritime space as an integral part of the body
of the State, a two-dimensional plane (imagined land territory, continental shelf)
that can be amputated through delimitation.
Certainly the number of potential maritime boundaries increased significantly
after the provisions of LOSC extend possible jurisdictional claims out to 200 nautical miles and beyond. Although under LOSC the provision of States rights and
responsibilities changes through the jurisdictional zones extending seaward, the
imagined division of the maritime space with a geometric line conveys a division of two homogenous spaces which provides the exclusivity of jurisdiction
necessary for hydrocarbon operators. With an emphasis on exclusivity, the focus
in delimitation tends to be on the appropriation of rights to the resources over
maritime space that may be lost in the definition of a linear boundary. Fear of
losing rights to known (or even imagined) resources continues to add to the contested or painful nature of maritime delimitation and is likely to be contributing to the overall slowdown in the number of agreements. The contested nature
of maritime delimitation can also be seen reflected in the number of binding
third-party settlements of maritime boundary disputes: 19801989three cases;
19901999five cases; 20002009five cases; 20102012two cases; with
three further cases currently pending in 2013. In colloquial terms, coastal and
island States may consider it better not to cut their piece of maritime pie in
perpetuity until they know exactly what is in it. Ironically, States also may be
reluctant to permit exploration activities in an undelimited/contested maritime
space prior to delimitation so the exact nature of any resources within an area of
overlapping maritime claims may remain unclear.
32 Tanja, The Legal Determination of International Maritime Boundaries, xvi.
33 Weil, The Law of Maritime Delimitation, 5.
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Certainly there are examples of delimitation agreements that reflect a more
multi-dimensional perspective on the division of maritime jurisdictions. Although
becoming less common, some delimitation agreements have included the definition of joint fishing zones, such as the arrangements made in the 1999 delimitation
agreement between Denmark (on behalf of the Faroe Islands) and the United
Kingdom.34 Similarly, within their 2001 delimitation agreement, Honduras allocated an area of its EEZ where fishermen from the neighbouring Cayman Islands
are given fishing rights under a detailed regime.35 The 1978 delimitation agreement between Australia and Papua New Guinea outlined a detailed regime with
a variety of jurisdictional limits in the Torres Strait area that was appropriate to
local usage.36 There are also a very limited number of joint maritime conservation areas, such as the Israel-Jordan Red Sea Marine Park in the Gulf of Aqaba,
although these are usually arranged separate to maritime delimitation.37
However, these examples are eclipsed by delimitation agreements defining
single line, multi-zonal boundaries and/or the allocation of joint development
and unitisation areas that are largely focused on the management of hydrocarbon
activity. There has been a noticeable decline in the number of joint or shared
fishing regimes within delimitation agreements (see Table 5.1). Of the nine joint
regimes agreed in the 1970s, four were related largely to fishing operations with
the remaining five focused on oil and gas operations. The two joint regimes agreed
in the 1980s were both largely related to hydrocarbon activity. Of the six joint
regimes agreed in the 1990s, just two were related to fisheries and the remaining
four were largely linked to hydrocarbon prospects. Of the six joint regimes agreed
in the 2000s, two were related to hydrocarbon unitisation, three were linked to
hydrocarbon activity and just the Honduras-UK agreement provided for a shared
fishing area.
34 Agreement between the Government of the Kingdom of Denmark together with the Home
Government of the Faroe Islands, on the one hand, and the Government of the United
Kingdom of Great Britain and Northern Ireland, on the other hand, relating to Maritime
Delimitation in the area between the Faroe Islands and the United Kingdom, 18 May
1999.
35 Treaty between the Government of the Republic of Honduras and the Government of the
United Kingdom of Great Britain and Northern Ireland concerning the delimitation of
maritime areas between the Cayman Islands and the Republic of Honduras, 4 December
2001.
36 Treaty between Australia and the Independent State of Papua New Guinea concerning
sovereignty and maritime boundaries in the area between the two countries, including the
area known as the Torres Strait, and related matters, 18 December 1978. See especially
Charney and Alexander, International Maritime Boundaries Vol. I, 929977.
37 Dorothy Zbicz, Marine transboundary conservation Global Transboundary Conservation Network, http://www.tbpa.net/page.php?ndx=49.
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Table 5.1.Joint Regimes in Delimitation Agreements since 1970
Boundary
Type
Year
Related activity
Barbados-Guyana
JDA
2003
Australia-East Timor
Australia-East Timor
Australia-East Timor
Honduras-UK
(Cayman Islands)
Nigeria-Sao Tome
Denmark (Faroe
Islands)-UK
Argentina-UK
(Falkland Islands)
Colombia-Jamaica
Guinea Bissau-Senegal
Malaysia-Vietnam
Malaysia-Thailand
Australia-Indonesia
Iceland-Norway
(Jan Mayen)
Malaysia-Thailand
Colombia-Dominican
Republic
Norway-Russia
Australia-Papua New
Guinea
Norway-UK
Saudi Arabia-Sudan
Unitisation
JDA
Unitisation
Shared fishing area
2003
2002
2002
2001
(Largely)
hydrocarbon
Hydrocarbon
Hydrocarbon
Hydrocarbon
Fisheries
JDA
Joint fishing
2001
1999
Hydrocarbon
Fisheries
Temporary JDZ
1995
Economic zone condominium
Joint fisheries arrangement
JDA
JDZ
JDA
JDA
1993
1993
1993
1990
1989
1981
(Largely)
hydrocarbon
Hybrid
Fisheries
Hydrocarbon
Hydrocarbon
Hydrocarbon
Hydrocarbon
JDZ
Joint scientific and fisheries
1979
1978
Hydrocarbon
Fisheries
Joint fishing area (temp)
Joint protected zone
1978
1978
Fisheries
Fisheries
Unitisation
Common zone
1976
1974
Japan-South Korea
Argentina-Uruguay
Iran-Sharjah (UAE)
JDZ
1974
Joint science and fisheries
1973
Shared revenue around Abu Musa 1971
Hydrocarbon
(Largely)
hydrocarbon
Hydrocarbon
Fisheries
Hydrocarbon
Concluding Thoughts
Prescott and Schofield emphasise that LOSC provides States parties with both
rights and responsibilities in maritime jurisdictional zones, warning that The
management implications of claiming different zones therefore need to be kept
in mind and authorities concerned need to evaluate whether the benefits that
derive from claiming a particular zone outweigh the costs that will be incurred in
managing the zone.38 Most importantly, they conclude:
38 Prescott and Schofield, Maritime Political Boundaries of the World, 43.
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it is clear from a survey of national claims to zones of maritime jurisdiction that
coastal states have embraced the opportunity to assert their rights to maritime
spacein some, and perhaps many, cases regardless of their ability to fully meet the
corresponding ocean management responsibilities which come with those rights.39
Just as claims to maritime zones entail both rights to the resources and responsibilities under the law of the sea, so does the delimitation of maritime boundaries.
The influence of hydrocarbon resources suggests that the current emphasis in
delimitation proceedings is on the division of rights to the largely fixed resources
within maritime space. The responsibilities for managing the many other activities within defined maritime jurisdictions appear to be consequences that emerge
after delimitation has been concluded; despite the long term impact that delimitation has over all aspects of marine management. It is hoped that this quantitative analysis provides a warning that will encourage coastal and island States to
take a more holistic approach to maritime delimitation, taking into account all
activities (short and long term) when coming up with a peaceful arrangement to
neighbouring maritime claims. In doing so, future delimitations and the pursuit
of equitable solutions might be approached with more flexibility, less contention
and reflect the multi-dimensional balance of rights and responsibilities to marine
management.
39 Ibid.
chapter SIX
Adriatic Blues: Delimiting the former Yugoslavias
Final Frontier
Damir Arnaut*
Introduction
More than twenty years have passed since the disintegration of Yugoslavia, whose
six former republics are independent States now, and Kosovo has been recognised as such by a majority of UN members. While Yugoslavias demise was bloody,
included Europes first genocide since World War II, resulted in more than a
million refugees and billions of dollars in material losses, the land boundaries
between those republics remain exactly where they were in 1991.
The same can be said of the maritime boundaries of the four littoral republics,
but for a different reason altogether. Namely, while their land boundaries were,
for the most part, firmly established, no delimitation was ever carried out at sea.
Prior to Yugoslavias demise, maritime delimitation in the Adriatic had
been almost complete. Italy concluded continental shelf delimitation agreements with Yugoslavia,1 Albania,2 and Greece,3 and a territorial sea delimitation
* Damir Arnaut is Ambassador of Bosnia and Herzegovina to Australia and New Zealand.
The opinions expressed herein are those of the author and do not necessarily reflect
the views of the Government of Bosnia and Herzegovina. J.D. University of California,
Berkeley, 2002; M.A., University of California, Berkeley, 1998; B.A. University of California, Berkeley, 1997.
1 Agreement between Italy and Yugoslavia concerning the Delimitation of the Continental
Shelf between the two Countries in the Adriatic Sea, 8 January 1964, http://www.un.org/
depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/ITA-YUG1968CS.PDF.
2 Agreement between Albania and Italy for the determination of the continental shelf of
each of the two countries, 18 December 1992, http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/ALB-ITA1992CS.pdf.
3 Agreement between the Hellenic Republic and the Italian Republic on the Delimitation of
the Respective Continental Shelf Areas of the two States, 24 May 1977, http://www.un.org/
depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/GRC-ITA1977CS.PDF.
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agreement with Yugoslavia.4 As no country claimed the EEZ in Adriatic,5 delimitation between Yugoslavia and Albania was the sole outstanding maritime boundary issue in the Adriatic region.
With the independence of the Yugoslav republics, however, the Adriatics status as almost completely delimited was transformed into one of the most hotly
contested. Successor republics inherited Yugoslavias agreements with Italy, but
relatively little progress has been made with respect to maritime delimitation
between Croatia and its other Adriatic neighborsBosnia and Herzegovina,
Montenegro and Slovenia.
Compounding the problem is that none of these allows for a simple, straightforward or non-controversial solution. The dispute between Croatia and Slovenia
involves such concepts as direct access to the High Seas through a corridor
that potentially leaves a non-contiguous territorial sea triangle. Croatias selfproclaimed inheritance of Yugoslavias straight baselines threatens to leave Bosnia and Herzegovinas territorial sea completely surrounded by Croatias internal
waters, with further cut-off threatened by Croatias plans to build a bridge several
hundred meters from Bosnia and Herzegovinas coast. The dispute with Montenegro began with Serbias military occupation of Croatian territory, and has
subsequently involved invocation of national security arguments.
This chapter will examine all three disputes, but its primary focus is on the
maritime delimitation between Bosnia and Herzegovina and Croatia. The reasons
are threefold: Primarily, this author has already published a detailed paper on
the Croatia and Slovenia dispute,6 and this chapter simply builds on that work.
Second, there appears to be no published work with focus on the maritime delimitation between Bosnia and Herzegovina and Croatia. Indeed, the few authors
who have addressed this issue have largely treated it as a minor curiosity in the
wider Adriatic Sea delimitation conundrum.7 Finally, with Croatia having joined
the European Union (EU) in 2013, the issue threatens to become a destabilizing
4 Treaty on the delimitation of the frontier for the part not indicated as such in the
Peace Treaty of 10 February 1947, signed 10 November 1975, entered into force 11 October 1977, 1466 UNTS 72 http://treaties.un.org/doc/Publication/UNTS/Volume%201466/
volume-1466-I-24848-English.pdf (Treaty of Osimo).
5 Damir Arnaut, Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation between Croatia and Slovenia, in David D. Caron and Harry N.
Scheiber (eds.), Bringing New Law to Ocean Waters (Leiden: Martinus Nijhoff Publishers,
2004), 432, note 19.
6 Ibid.
7 Mladen Klemeni and Duko Topalovi, The Maritime Boundaries of the Adriatic Sea,
Geoadria, 14 (2009): 32021; Budislav Vukas, Maritime Delimitation in a Semi-enclosed
Sea: The Case of the Adriatic Sea, in Rainer Lagoni & Daniel Vignes (eds.), Maritime
Delimitation, (Leiden: Martinus Nijhoff Publishers, 2006), 215.
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factor in Bosnia and Herzegovinas EU aspirations in the same manner that the
dispute with Slovenia threatened Croatias entry.
Delimitation of the Adriatic: Starting from Scratch and no
End in Sight
The dissolution of Yugoslavia witnessed the application of the uti possidetis juris
principle beyond the colonial context in which this principle initially arose with
respect to border delimitation.8 The Arbitration Commission of the Conference
on Yugoslavia9 thus opined that [e]xcept where otherwise agreed, the former
boundaries become frontiers protected by international law.10 This opinion,
however, was by definition limited to the land boundaries between the former
Yugoslav republics, as no maritime delimitation was ever carried out between
them.11 As a result, the transformation of the Yugoslav republics land borders
into international frontiers imposed the need to delimit the maritime boundaries
between these newly independent States de novo, in accordance with international law.
That this has yet to happen has created or threatens to create frictions on other
fronts, most notably with respect to the EU and NATO aspirations of all countries
involved. Slovenia successfully took advantage of the EU consensus rules to bring
about pressure on Croatia with respect to the maritime boundary issue.12 As this
episode elicited ire of EU officials and other EU members,13 and as nothing prevents Croatia, the newest EU member, from employing similar tactics against
Bosnia and Herzegovina and Montenegro, a comprehensive analysis of maritime
delimitation issues in the Adriatic is both timely and appropriate.
8 See, for example, the Columbia-Venezuela Arbitral Award, (1922) 1 RIAA 223; Land,
Island and Maritime Frontier Dispute (El Salvador. v. Honduras: Nicaragua Intervening),
(1992) ICJ Reports, 351, paragraph 43, holding that [U]ti possidetis juris is essentially
a retrospective principle, investing as international boundaries administrative limits
intended originally for quite other purposes.
9 Established by the European Community and led by Robert Badinter, it issued fifteen
opinions on the legal questions regarding the dissolution of Yugoslavia. See, Alain Pellet,
The Opinions of the Badinter Arbitration Committee: A Second Breath for the SelfDetermination of Peoples, European Journal of International Law, 3 (1992): 178.
10 Ibid., Opinion No. 3, 18485.
11 Arnaut, Stormy Waters, 42930.
12 Pietro Di Rocca, Slovenia Blocks Croatian EU Accession Due to Border Dispute, SEE
Business, http://www.seebusiness.eu/articles/slovenia-blocks-croatian-eu-accessiondue-to-borde/.
13 Slovenia tried the same tactic when Croatia was to join NATO. See, Robert Bajrusi,
Americans Bring Down Slovene Blockade, Nacional, 15 September 1999, http://www
.nacional.hr/en/clanak/50385/americans-bring-down-slovene-blockade.
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Croatia and Slovenia: Erasing Old Boundaries while Drawing a
New One?
Writing in 2002 about the maritime dispute between Croatia and Slovenia, this
author noted that no academic study of the problem has been published in any
English-language legal journal.14 The intervening period has witnessed a plethora
of works,15 driven by a combination of truly novel proposals and the increasing
stakes involved. None of the solutions proposed in these works were adopted,
however. Instead, following several attempts at a negotiated solution, the two
countries agreed in 2009 to refer the matter to arbitration.16
Squaring the Triangle: Previous Attempts at an Agreement
The most concrete and comprehensive of such previous attempts was the agreement reached by the two countries Prime Ministers in July 2001.17 Reduced to
the basics, the details of that Agreement were as follows:18
The equidistance method was completely ignored, and substantially so. This is
illustrated by the fact that the surface area of Slovenias territorial sea was to be
approximately 113 sq. kilometers, or 70 per cent, larger than what it is entitled
to if equidistance is employed.19 The Agreement would also have established a
46 sq. kilometer large high seas corridor between the so-expanded Slovenian
territorial sea and the existing high seas.20 Croatias existing territorial sea was
14 Arnaut, Stormy Waters, 429, note 10.
15 For example, Vasilka Sancin, Slovenia-Croatia Border Dispute: From Drnovsek-Racan
to Pahor-Kosor Agreement, European Perspectives, 2/2 (2010): 94, listed the authors
and seven subsequent works on the subject and noted that the list is by no means
exhaustive.
16 Arbitration Agreement between the Government of the Republic of Slovenia and the
Government of the Republic of Croatia, http://www.vlada.si/fileadmin/dokumenti/si/
projekti/2010/Arbitrazni_sporazum/10.a_Arbitrani_sporazum_-_podpisan_EN.pdf
(hereinafter, Arbitration Agreement).
17 Agreement between the Republic of Slovenia and the Republic of Croatia on the Common State Border. The Agreement, initialed by the two countries Prime Ministers
Ivica Raan and Janez Drnovek on 20 July 2001, explicitly required ratification before
entry into force. Croatia never ratified it http://www.vlada.si/fileadmin/dokumenti/si/
projekti/2010/Arbitrazni_sporazum/4.b_Drnovsek-Racan_EN.pdf (hereinafter, RaanDrnovek Agreement).
18 For a comprehensive review of the Raan-Drnovek Agreement see Arnaut, Stormy
Waters.
19 Zvonko Greti, Valerija Filipovi & Vesna Bari, O morskim granicama u sjevernom jadranu od 1968. do 2009. [On Maritime Boundaries in the Northern Adriatic
from 1968 to 2009] NIPP, 1 (2009): 18 <http://www.croatia.ch/tjedan/pdfs/Varazdin_
OmorskimgranicamauJadranu.pdf>.
20 Raan-Drnovek Agreement, Article 4.
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to be divided by that corridor, as Croatia would have retained as its territorial
sea a triangle bordered by the corridor, the Italian territorial sea, and Slovenias
territorial sea.21
The Raan-Drnovek Agreement, as it is commonly known, was as creative as
it was unprecedented. It managed to satisfy Slovenias primary demand (direct
access to the high seas)22 and address Croatias primary concern (retaining a territorial sea boundary with Italy).23 At the same time, the Agreement may have
gone too far in its innovation and ingenuity. Namely, while the public debate and
political opposition in Croatia focused on the relinquishment of a mere 0.3 percent of Croatias territorial sea surface area, the real problem lay in the unknown
that the triangle would have produced. No example exists of a patch of a countrys territorial sea that is completely disjointed from the rest of its territorial sea,
and thereby its coast, and it is questionable whether other countries, including
Italy, would have recognized Croatias claim to the triangle, any agreement with
Slovenia notwithstanding.24
In particular, other countries could have maintained that Croatia limited the
breadth of its territorial sea in the region up to the corridor line facing its coast,
from which line the high seas thus begin, and that any claim to the triangle is
therefore untenable. Even if a corridor of Slovenias territorial sea could be drawn
to extend to the existing high seaswhich it cannot because they are situated
more than 12 nautical miles from the closest point on Slovenias coast25the
triangle would still have been disjointed, but by a corridor consisting of Slovenias
territorial sea rather than the high seas. This would make for an only slightly
more convincing argument, however, that this is a matter solely concerning the
two countries.26
Be that as it may, following Croatias refusal to ratify this Agreement the issue
languished for over eight years, with no solution in sight. Slovenia, however, was
becoming increasingly isolated in its decision to use a purely bilateral issue to
block another countrys EU candidacy. Croatia, for its part, could scarcely afford
further delay in accessing the EU, including its markets and funds. It was largely
these considerations that in the end drove the two countries to establish a few
ground rules and allow someone else to decide the matter through binding
arbitration.
21 Ibid., Article 5.
22 Arnaut, Stormy Waters, 45657.
23 Ibid., 438, 45254.
24 Ibid., 45455. For the discussion on why maintaining a border with an EU State was
important to Croatia, ibid., 438, 454.
25 15.5 nautical miles, to be exactGreti, Filipovi and Bari, On Maritime Boundaries, 27.
26 See, Arnaut, Stormy Waters, 454, reminding that international law mandates that territorial sea be adjacent to a coastal states land territory or internal waters.
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Figure 6.1Map of the Raan-Drnovek Agreement.27
Equidistance/Special Circumstances and Equity in Conjunction Lead
to a Junction?
The mere fact that an arbitration agreement was reached constitutes a compromise and a marked departure from the previous positions of both countries.
Slovenia abandoned the heavily skewed in its favor Raan-Drnovek Agreement,
while Croatia dropped its demand that the issue be referred to the ITLOS or the
ICJ. The Agreements substance was equally a compromise, promising a unique
and a creative award.
Of particular note, the Arbitral Tribunal is tasked with determining the course
of the maritime and land boundary between...Slovenia and...Croatia by applying the rules and principles of international law...28 At the same time, the Tribunal is to determine Slovenias junction to the High Seas and the regime for
the use of the relevant maritime areas, but by applying international law, equity
27 All maps in this Chapter were produced using OpenStreetMap data. See http://www
.openstreetmap.org/copyright. The author also wishes to acknowledge invaluable assistance of Mr Armin Hujic in building those maps.
28 Arbitration Agreement, Article 3(1)(a) in conjunction with Article 4(a).
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151
and the principles of good neighborly relations in order to achieve a fair and just
result by taking into account all relevant circumstances...29
The only maritime boundary possible in the present case would delimit the
territorial seas of the two countries. Accordingly, the rules and principles of
international law30 to be applied are limited to the equidistance/special circumstances rule.31 Applying this rule, judicial and arbitral bodies will draw an equidistant boundary unless historic title or other special circumstances exist that
warrant a different outcome.32 Suffice it to say for present purposes33 that there
is likely some, though limited, evidence of historic title, that Slovenias ability
to access the high seas only through the territorial seas of other States does not
rise to the level of special circumstances,34 that Slovenias coastline is not concave in the relevant area,35 that there is no disparity in the length of the relevant
coastlines,36 and that the non-encroachment principle argument could be made,
albeit a strenuous one.37 Few special circumstances are hence likely to be found
in this case, and the ones that are will almost certainly not be sufficient to move
the delimitation line as far as the Raan-Drnovek Agreement did.
The Agreements omission of equity from the principles to be applied in
determining the maritime boundary, and inclusion of equity in the principles
29 Ibid., Article 3(1)(b) and (c) in conjunction with Article 4(b).
30 Ibid., Article 3(1)(a) in conjunction with Article 4(a).
31 United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force Nov. 16 1994, 1833 UNTS 3 (LOSC), Article 15. All former Yugoslav republics are parties to the LOSC.
32 See, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar
v. Bahrain) (2001) ICJ Reports 40, paragraph 17576 (Qatar-Bahrain); Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay
of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012 (2012) ITLOS Reports,
paragraph 129 (Bangladesh-Myanmar).
33 The present author has already offered a detailed analysis of the special circumstances
that might pertain to the delimitation of the area in question. See, Arnaut, Stormy
Waters, 44250.
34 See, Bangladesh-Myanmar, paragraph 170, holding that [t]he question of free and
unimpeded navigation by Myanmar in the territorial sea of Bangladesh...is not an
issue to be considered in respect of delimitation. As for a potential argument that
Italys coast reduces the seaward projection of Slovenias coastline, that would be an
issue between Slovenia and Italy. See, Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) (2002) ICJ Reports
303, paragraphs 29899.
35 Ibid., paragraph 297, holding that the concavity of the coastline may be a circumstance
relevant to delimitation, but that this can only be the case when such concavity lies
in the area to be delimited.
36 Ibid., paragraph 301, holding that the coastlines in question must be relevant to
delimitation.
37 Arnaut, Stormy Waters, 450.
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for determining Slovenias junction to the high seas, might be a distinction without a difference, however. It is well established that the equidistance/special circumstances rule must be applied in a manner that obtains an equitable result,
including in territorial sea delimitation,38 and even the principles of equity are
subordinate to the goal of reaching an equitable result.39
It cannot, hence, be said that the Agreement contains two different legal standards for determining the boundary on the one hand and Slovenias junction to
the high seas on the other. Put simply, neither equitys omission from some nor
its inclusion in other provisions of the Agreement will have much bearing on
the Tribunals determination on these two issues. Rather, the resulting maritime
boundary will have to be equitable because the equidistance/special circumstances rule mandates such a result, but the junction will have to be determined
only because the Agreement explicitly stipulates it.
This is particularly worth noting for the purposes of any future dispute
involving a State that must traverse the territorial seas of other States to reach
the high seas. Accordingly, the Tribunal should make it exceedingly clear
that the equitable result is not to be found in the fact that it created a junction,
but in whatever details it fashions for the junction in this particular case,40 where
its existence was mandated by the terms of the Agreement rather than by international law. Indeed, absent those terms it is unlikely that a notion that a States
must somehow have a junction to the high seas would even be entertained,
especially when combined with established equitable principles, such as nonencroachment, the principle not to refashion the geography, and not to seek to
make equal what nature has made unequal,41 that seem to dictate against a direct
junction here.42
This, in turn, begs the question of the relative weight the Tribunal will give to
the contractual rights of the parties versus the rules of international law. The ICJ
38 See, Qatar-Bahrain, examining whether there are special circumstances which make
it necessary to adjust the equidistance line...in order to obtain an equitable result in
relation to [the territorial sea] part of the single maritime boundary paragraph 217,
and also holding that the equidistance/special circumstances rule, which is applicable
in particular to the delimitation of the territorial sea, and the equitable principles/
relevant circumstances rule...are closely interrelated. Ibid., paragraph 231.
39 See, Case concerning the Continetal Shelf (Tunisia v. Libya) (1982) ICJ Reports 18, paragraph 70 (Tunisia-Libya). Also Continental Shelf (Libya v. Malta) (1985) ICJ Reports 4,
paragraph 45 (Libya-Malta).
40 Those details will, hence, constitute an equitable result itself, rather than equitable
principles or means used to achieve such a result.
41 See, North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal
Republic of Germany v. Netherlands) (1969) ICJ Reports 3, paragraph 91 (North Sea cases)
See also Libya-Malta, paragraph 46.
42 Even leaving aside the particularities of this case, no judicial or arbitral body has ever
held that a State has a right to a direct access from its territorial sea to the high seas.
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has held that it is well understood that, in practice, rules of international law can,
by agreement, be derogated from...,43 but it also made clear that although there
may be no legal limit to the considerations which States may take account of, this
can hardly be true for a court...44 Arbitral tribunals have applied the same standard, holding that the decision must be based on objective legal reasoning.45
As the Tribunal is explicitly tasked with determining a junction, it is highly
unlikely that it will refuse to do so. It should not be assumed, however, that
the Tribunal will assign the same meaning, or give the same effect, to that term
that the Raan-Drnovek Agreement did. Primarily, and for reasons outlined above,
the junction established by that Agreement cannot be arrived at by employing
equitable principles, let alone constitute an equitable result. Even if both Croatia and Slovenia considered such a result equitable, it is not the subjective sense
of fairness that governs, but the result must be justifiable by reasoning based
on law.46 Indeed, any tribunal would be hard-pressed to rule that taking some
46 sq. km. of territorial sea away from Croatia and making it the high seas, just to
provide Slovenia with a satisfaction that has no practical application, constitutes
an equitable result.
Second, while both agreements refer to a junction, the surrounding terminology differs. Namely, the Raan-Drnovek Agreement speaks of the junction of the
territorial sea of...Slovenia with the high seas,47 while the Arbitration Agreement only refers to Slovenias junction to the high seas.48 The latter terminology, and especially in comparison to the former, allows the Tribunal to interpret
the term junction liberally and to establish a regime where Slovenias territorial
sea is not necessarily adjacent to the high seas.
Finally, the Tribunal has additional latitude as it is also tasked with determining the regime for the use of the relevant maritime areas, and because this
determination, just like the determination of the junction, requires it to take into
account all relevant circumstances.49 The Tribunal could determine a special
regime through a portion of Croatias territorial seas, further determining that
such regime constitutes Slovenias junction to the high seas, and basing such
determinations on, inter alia, the relevant circumstance of the two countries EU
membership which additionally guarantees faithful adherence to the terms of
the award.
43 North Sea cases, paragraph 72.
44 Libya-Malta, paragraph 48.
45 See, Award of the Arbitral Tribunal in the Third Party Settlement of the Maritime Boundary between Guinea and Guinea Bissau, 25 (1986) I.L.M. 251, paragraph 102 (Guinea/
Guinea-Bissau Award).
46 Ibid., paragraph 90.
47 Raan-Drnovek Agreement, Article 4.
48 Arbitration Agreement, Article 3(1)(b).
49 Ibid., in conjunction with Article 4(b).
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In conclusion, the Tribunal will likely depart from the line of equidistance in
favour of Slovenia, as some special circumstances are present. It is unlikely that
it will do so to the degree of the Raan-Drnovek Agreement, as special circumstances justifying it simply cannot be found, the established principles of equity
mitigate against it, and the near doubling of Slovenias territorial sea at Croatias
expense can hardly be considered an equitable result.
As for the junction, one will have to be determined, but it is unlikely that it will
approximate the Raan-Drnovek Agreement one, including the high-seas corridor
and the triangle.50 Namely, not only would that involve sheer absence of equity,
but the Tribunal has other options at its disposal. It is possible, albeit unlikely in
the present circumstances, to create a corridor constituting Croatias Exclusive
Economic Zone or a similar regime that is neither the high seas nor Croatias territorial sea, but this would also necessitate a triangle if Croatias boundary with
Italy is to be preserved.51 Also, the Tribunal could limit the breadth of Croatias
territorial sea in the relevant area and thereby extend the high seas to within
twelve miles from the closest point on Slovenias coast, and create a quad-point
where the high seas, Slovenias territorial sea, and Croatias territorial sea on both
the landward and the triangle side52 would meet. Such a solution is as unprecedented as it is complex, and it would not answer the overarching question as to
what legal rule, rather than subjective considerations, mandates that a countrys
territorial sea needs to touch upon or connect to the high seas.
The most likely result, hence, is a special regime that doubles as a junction, a
solution that would satisfy the contractual will of the parties as expressed in the
Agreement, but be capable of being justified by legal reasoning.
Croatia and Montenegro: From Individual to Collective Security
As for Croatias boundary with Montenegro, the dispute arose with Serbias military occupation of Croatias Prevlaka peninsula in 1991, causing the posting of
a United Nations force there and in the surrounding area.53 In addition to the
demilitarisation of the area in question, the UN Mission of Observers in Prevlaka
50 While the Arbitration Agreement is silent on Croatias boundary with Italy, it is hardly
equitable to strip it away or to jeopardise it with a disjointed patch of Croatias territorial sea.
51 For a detailed proposal along these lines, see Arnaut, Stormy Waters, 45561.
52 This solution would allow the triangle to be joined, however slightly, to the rest of
Croatias territorial sea, alleviating concerns about the triangles legitimacy.
53 See, UN Mission of Observers in Prevlaka (UNMOP), http://www.un.org/en/peace
keeping/missions/past/unmop/.
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(UNMOP) maintained an exclusion zone on the Prevlaka peninsula and its immediate vicinity, including over the patch of sea adjacent to it.54
Prevlakas position at the entrance to the Bay of Kotor, where the bulk of
the former Yugoslavias (and all of Serbias) navy was located, was of significant
strategic importance. Indeed, not only does Prevlakas location enable a military
force that controls it to completely cut off movement to and from the Bay, it also
entitles Croatia to roughly one half of the breadth of the entrance into that bay
if the line of equidistance is employed.
Battleships Give Way to Superyachts
The first consideration, that of military security, though of the utmost concern
in the conflict atmosphere of the 1990s, is hardly relevant any longer. While Croatia and Serbia and Montenegro operated in a practical state of war between 1991
and 1995, and in a state of heightened tensions for the remainder of Slobodan
Milosevics rule, todays climate is a different matter altogether.
Primarily, Montenegro, having transformed its naval bases into superyacht
marinas,55 has no aspirations against its neighborsmilitary, strategic or otherwisethat were the hallmark of its union with Serbia. Moreover, Montenegro is
sandwiched between two NATO members (Croatia and Albania), and it aspires to
join that alliance along with another neighbour, Bosnia and Herzegovina.56 Put
simply, military and security considerations, which for years had been invoked
by Belgrade, have lost their meaning.
The second issue does have peacetime implications. Namely, delimiting the
territorial seas by equidistance would leave Croatia and Montenegro with jurisdiction to regulate an equal number of shipping lanes57 at the entrance into the
Bay, despite the fact that practically all maritime traffic traversing that entrance
is bound to or from Montenegro.58
54 Ibid. For a detailed map of these arrangements see http://karty.narod.ru/claim/prev/
prevlaka.jpg.
55 Communist-era naval base reborn as superyacht marina, CNN, Jul. 6, 2010, http://
articles.cnn.com/2010-07-06/world/porto.montenegro_1_naval-base-central-europemontenegrin-prime-minister?_s=PM:WORLD.
56 See, NATO, Press Release (2011) 145, 7 December 2011, http://www.nato.int/cps/en/
natolive/official_texts_81943.htm?mode=pressrelease.
57 LOSC, Article 22. While this does not affect the right of innocent passage, as guaranteed
by Article 17 of the LOSC, it could prove to be inconvenient or even burdensome for
Montenegro.
58 Croatia has no port or population on its less than 10 kilometers of the Bays coastline.
Montenegros more than 100 kilometers long coastline within the Bay is home to five
of its six major ports or marinas and to more than ten percent of its population.
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The Interim Protocol: A NATO Demilitarised Zone?
In 2002 Croatia and Serbia and Montenegro reached a temporary solution governing the matter,59 and the UNMOPs mandate was ended.60 The Protocol, succeeded to by Montenegro following its split with Serbia in 2006,61 specifies that
it is provisional in nature, but that it will remain in force until the conclusion of
an agreement on the state border.62
With respect to the land boundary, the Protocol stops short of recognising it,
holding that Croatia shall temporarily exercise jurisdiction over land areas southwest of Konfin..., and [Federal Republic of Yugoslavia] over land areas north of
Konfin.63 The Protocol requires complete demilitarisation within five kilometers on the Croatian side and three kilometers on the Montenegrin side,64 and it
addresses such matters as demining, cross-border movement, the customs regime
applicable, search and rescue at sea, marine ecology, and tourism cooperation.65
Regarding maritime jurisdiction and delimitation, the Protocol provides for
noticeably different solutions within and outside the Bay. The Protocol establishes
a Zone within the Bay west of the straight line that stretches from Konfin to a
point three cables away from Cape Otro on the line connecting Cape Otro and
Cape Veslo.66 Only joint police units may patrol the Zone, no military vessels
may enter it,67 and a fishing regime is established.68 Outside the Zone, but in an
area still within the Bay, Montenegrin naval vessels may not conduct exercises,
demonstrate force, take onboard or dispatch aircraft, stop or anchor, and its submarines must navigate on the surface and show their flag, and Croatian naval
vessels may not enter that area.69
These comprehensive arrangements notwithstanding, the Protocol provides
for no actual delimitation within the Bay. Rather, a strict construction of its terms
leads to a conclusion that the Protocol creates a condominium of sorts south
59 Protocol between the Government of the Republic of Croatia and the Federal Government
of the Federal Republic of Yugoslavia on the Interim Regime along the Southern Border between the Two States (2002) (hereinafter Protocol), http://www.index.hr/vijesti/
clanak/protokol-o-privremenom-rezimu-na-prevlaci/106839.aspx (in Croatian).
60 See, S.C. Res. 1437, U.N. SCOR, 57th Sess., 4622nd mtg., U.N. Doc. S/Res/1437 (2002).
61 See, http://www.mvep.hr/en/foreign-politics/bilateral-relations/overview-by-country/
montenegro,236.html.
62 Protocol, Article 1.
63 Ibid., Article 4.
64 Ibid., Section IV, Article 1016.
65 Ibid., Article 1726.
66 Ibid., Article 5.
67 Ibid., Article 5 and 7.
68 Ibid., Article 8. Each State party may issue up to 100 fishing licences to its nationals per
year, and up to 10 to nationals of third States per day. Only basic fishing gear is allowed,
and catch is limited to 5 kilograms per person per day.
69 Protocol, Article 15. The area in question lies south of the Cape Kobila-Cape urov Kam
line and north of the Cape Otro-Cape Mirite line, but east of the Zone line.
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Figure 6.2Croatia-Montenegro Interim Protocol.
of the line connecting Cape Kobila and Cape urov Kam and north of the line
connecting Cape Otro and Cape Mirite,70 heavily skewed in favour of Montenegro and with different regimes east and west of the line defining the Zone, but
a condominium nonetheless.71
In practice, however, the parties have treated the Zones limits as having delimitation properties as well. Croatia, for example, has limited its fisheries within the
Bay to the Zone.72 Montenegro, for its part, has promulgated straight baselines
connecting both Cape Veslo and Cape Konfin to the point three cables away
from Cape Otro on the line connecting Cape Otro and Cape Veslo, a floating
70 Plus the triangle portion of the Zone below that line.
71 Article 27 of the Protocol, moreover, provides for complete elmination of border controls (customs and police) in the period between 1 April and 31 October in the maritime area from Cape igant to Cape Veslo and up to the line connecting Cape Konfin
and Cape urov Kam.
72 See Regulation on the Borders of the Croatian Fishing Sea, Art. 5 and Maps 2425 (hereinafter Fishing Sea Regulation), http://faolex.fao.org/cgi-bin/faolex.exe?rec_id=113946&
database=faolex&search_type=link&table=result&lang=eng&format_name=@ERALL.
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point in the sea and therefore in clear contravention of Article 7 of the LOSC, and
has declared all waters within those straight baselines its internal waters.73
Be that as it may, the Protocol is clear in that it provides for actual delimitation
only outside the Bay, stating that provisional delimitation of the territorial sea
begins from the point three cables away from Cape Otro on the Cape Otro
Cape Veslo line, and continues in a straight line for 12 nautical miles along the
azimuth of 206 degrees to the High Seas.74 No particular delimitation method
was followed, and this line considerably departs from the line of equidistance in
favor of Montenegro.
While it is evident that the Protocol, in all its segments, is significantly more
favorable to Montenegro, it explicitly provides that it establishes a temporary
regime and that it shall not in any way prejudice delimitation between the two
States.75 These provisions, in concert with the fact that the Protocols primary
purpose was to reduce tensions in an area that was of significant strategic and
security importance to the Belgrade regime but that today has little or no such
implications for Montenegro, suggest that the Protocol will not have overwhelming precedential value. Croatia and Montenegro, moreover, have agreed in principle to refer the matter to the International Court of Justice,76 although, as of the
time of writing, no concrete steps have been taken in that direction.
Toward a More Permanent Solution
The outdated nature of the Protocol and the fact that it is silent on delimitation
within the Bay and of the continental shelf, all call for a more comprehensive
solution. To be equitable, any such solution will need to address at least two
issues: Croatias right to undivided sovereignty or sovereign rights over its maritime areas, wherever their boundaries may be drawn, and Montenegros claim to
maritime areas beyond the line of equidistance.
Within the Bay, Croatia could make a convincing argument that few, if any,
special circumstances require departure from the line of equidistance, and that
73See Republic of Montenegro Law on the Sea, Arts. 4 and 14.3, http://ozon.dizajn.me/
wp-content/uploads/2012/02/zakon-o-moru.pdf.
74 Protocol, Article 6. However, Article 5 of Croatias Fishing Sea Regulation (in Section
defining Fishing Area D) inexplicably provides that provisional delimitation of the
territorial seas of Croatia and Montenegro begins at Cape Konfin. While clearly not
supported by the text of the Protocol, this provision could constitute relevant State
practice benefiting Montenegro. At the same time, Article 6 of the Fishing Sea Regulation (Section defining Fishing Subarea D4) correctly states that provisional delimitation
begins outside the Bay.
75 Protocol, Articles 1 and 2.
76 ICJ to tackle Montenegro-Croatia border issue, NewEurope, 1 November 2009, http://
www.neurope.eu/article/icj-tackle-montenegro-croatia-border-issue.
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none justify the burdens and restrictions of the current regime. Outside the Bay,
Montenegro would be justified to claim that the principle of non-encroachment
dictates that equidistance not be used, particularly for the purposes of continental shelf delimitation.
The principle of non-encroachment is well-established in international law,
and its aim is to avoid the cutting-off a State from part of its maritime projection.
As the ICJ clearly stated:
the use of the equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another
when the configuration of the latters coast makes the equidistance line swing out
laterally across the formers coastal front, cutting it off from areas situated directly
before that front.77
Although precise details on the claimed limits of Montenegros continental shelf
are unavailable, it is clear from the configuration and the position of Prevlaka
relative to the coast of Montenegro that the line of equidistance would swing
out across a sizeable portion of Montenegros coastal front, cutting that front off
from areas directly situated before it. Given these geographical realities, a judicial
or arbitral body would be justified in applying equitable principles, departing
from the line of equidistance in favour of Montenegro, to arrive at an equitable
result.
Hence, it is likely that any permanent maritime boundary outside the Bay will
be closer to the Protocols provisions than to the line of equidistance due to the
non-encroachment argument available to Montenegro. As for the delimitation
within the Bay, it is unlikely that the current arrangements would be replicated,
but Croatia should endeavour to establish State practice more conducive to its
interests, by protesting Montenegros excessive claims and especially by avoiding even less favourable interpretations of the Protocols already disadvantageous
provisions.
Bosnia and Herzegovina and Croatia: Quick to Start, Slow to Finish
In contrast to Croatias maritime boundary issues with Slovenia and Montenegro, the one with Bosnia and Herzegovina did not begin as a dispute. Instead, the
two countries signed a comprehensive State border treaty as early as 1999, which
included delimitation of their maritime boundary.78 That the matter was hardly
contentious at the time is demonstrated by the fact that the Treaty employs the
77 North Sea cases, paragraph 44.
78 Ugovor o dravnoj granici izmeu Republike Hrvatske i Bosne i Hercegovine [Treaty on
the State Border between the Republic of Croatia and Bosnia and Herzegovina] (1999),
Article 23, (hereinafter, State Border Treaty), http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/HRV-BIH1999SB.PDF.
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equidistance method, devoting to the maritime boundary a single section of a single article, which simply provides that the state border on the sea stretches along
the central line of the sea between the territories of...Croatia and Bosnia and Herzegovina in accordance with the 1982 UN Convention [on the Law of the Sea.]79
Despite this early and seemingly promising start, the Treaty is yet to be ratified
by either country, but it does provide that it shall be temporarily implemented
as of its signing date.80 Ratification in Bosnia and Herzegovinas parliament has
been blocked by deputies from the Republika Srpska entity of Bosnia and Herzegovina, who have made an unfounded claim to certain land areas around the
town of Bosanska Kostajnica in the northern part of the country, unrelated to
the maritime boundary. For its part, Croatia balked at ratifying this agreement
shortly after it was signed and began to question, albeit tacitly and ambiguously,
the ownership of two islands and the tip of a peninsula around Bosnia and Herzegovinas only outlet to the Adriatic Sea at Neum.81
Vrh Kleka and Veliki and Mali kolj: A Tale of a Tail and Two Islands
The size and the attributes of the territory that Croatia has brought into question
are insignificant. It consists of two islandsVeliki kolj and Mali kolj82and
the tip of the Klek peninsula.83 The two islands are only 7,624 and 820 sq. meters
large respectively, while the tip of the Klek peninsula has an area of 40,220 sq.
meters.84
As is often the case with maritime delimitation, however, it is not the size of
the land area but its location that ultimately determines a maritime boundary.
Indeed, with Veliki kolj being some 190 meters away from the Klek peninsula
coastline, and Mali kolj half that distance, acquisition of these two islands by
Croatia would substantially alter the maritime boundary between the two States.
Moreover, if the tip of the Klek peninsula were transferred to Croatia, Bosnia
and Herzegovina would not only lose a substantial portion of its territorial sea,
but the Bay of Neum would also be completely cordoned off by Croatian waters.
79 Ibid., Article 4(3).
80 Ibid., Article 22(1).
81 Croatia has stopped short of actually claiming that those areas belong to it. The most
assertive official action appears to be the Croatian Governments request that the Joint
Bosnia and HerzegovinaCroatia State Border Commission revisit that Agreement
and reexamine all documentation and facts relating to this matter, which Bosnia and
Herzegovina has rejected. See, RSE, Na pomolu novi meudravni spor [New International Dispute on the Horizon], RSE, 29 November 2005, http://www.slobodnaevropa
.org/content/news/864930.html.
82 The literal translation is Big islet and Little islet. Both, however, are islands within the
meaning of the LOSC, as they are above water at high tide. LOSC, Article 121.
83 Colloquially referred to as Rep Kleka, or Kleks Tail.
84 The Office of the High Representative, State Property InventoryNeum, http://www
.ohr.int/stateproperty/DOCS/NEUM/INDEX.htm (OHR InventoryNeum).
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Figure 6.3Bosnia and Herzegovinas Coast.
Bosnia and Herzegovinas territorial sea would not be contiguous, as Croatias
territorial sea would have to be traversed in order to travel from one portion to
the other.85
Croatian Arguments: Ottomans and Venetians to the Rescue?
Croatias claim, if it even exists, is manifestly unfounded for several reasons. Primarily, Croatia has never espoused an official claim to these territories, making it
difficult to speak of Croatias arguments. The ambiguous Croatian government
requests that all documentation and facts relating to the matter be reexamined86
are essentially driven by arguments raised by some academics and media commentators that the area in question might belong to Croatia.
Those arguments posit that when this outlet to the Adriatic Sea was obtained
by the Ottoman Empire,87 the boundary line stretched from the mainland,
85 From the Bay of Neum to the other side of the Klek peninsula or vice versa.
86 See, note 81 and the accompanying text.
87 Through the Treaty of Karlowitz in 1699, reaffirmed by the 1718 Treaty of Passarowitz.
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through the waters facing the Bay of Neum, across the tip of the Klek Peninsula,
along the outer coastline of that peninsula to a point on the mainland below
the peninsula, and back into the hinterland.88 The argument further holds
that the only waters obtained by the Ottomans were those within the Bay of
Neum itself, which was a closed sea (mare clausum),89 and that the tip of the
Klek Peninsula and the two islands, but also all waters on the outer side of that
peninsula, might therefore belong to Croatia.
None of these arguments are based on the actual terms of the treaties.90 Rather,
they rely on assertions that in the Venetian and Austrian period the sea in question was treated in this manner,91 or on maps of questionable provenance that
appear to show such a boundary.92 Moreover, these commentators are careful to
concede that during the existence of Yugoslavia, Bosnia and Herzegovina was
considered to have jurisdiction over the waters along its coast,93 and some even
appear to have since modified their initial arguments.94
The problem with these arguments is not only that they are likely inaccurate
from the historical perspective, but that they are irrelevant for todays purposes.
As one Croatian academic has rightly pointed out, It is not important what this
was when the Ottomans were here. The relevant situation is that which was in
place when the two countries were becoming independent.95 This, to be sure,
is the crux of the matter, as it is the boundaries of the former Yugoslav republics
at the time of their independence that became frontiers protected by international law.96
88 Vukas, Maritime Delimitation in a Semi-enclosed Sea 215.
89 Gerald Blake, Duko Topalovi and Clive Schofield, The Maritime Boundaries of the
Adriatic Sea, Maritime Briefing, 8 (1996): 40.
90 As there is nothing in the treaties that would support such arguments. Treaty of Karlowitz (1699), http://www.archive.org/stream/generalcollectio00lond#page/290/mode/
2up and Treaty of Passarowitz, http://www.archive.org/stream/generalcollectio
00lond#page/400/mode/2up.
91 Blake and Topalovi, The Maritime Boundaries of the Adriatic Sea, 40.
92 See, for example, Ivica Puljan, Guske u magli jednom, guske u magli uvijek [Once a
Goose in the Fog, Always a Goose in the Fog], Vijesti Metkovic.hr 26 July 2012, http://
www.metkovic.hr/vijest.asp?vijest=4422, and the accompanying map at http://www
.metkovic.hr/novosti/_karta1895.jpg.
93 Vukas, Maritime Delimitation in a Semi-enclosed Sea, 215.
94 Stating that [a]ccording to the UNCLOS and presently prevailing customs in international relations, short Bosnian corridor to the sea at Neum entitles its own territorial
sea. Klemeni & Duko Topalovi, The Maritime Boundaries of the Adriatic Sea,
320, and compare with Blake and Topalovi, The Maritime Boundaries of the Adriatic
Sea, 40.
95 Faruk Vele, Akademik Davorin Rudolf: Spor BiH i Hrvatske treba mirno rijeiti
[Academic Davorin Rudolf: Dispute between BiH and Croatia Should be Resolved
Peacefully], Anadolu agency, 9 August 2012, http://www.aa.com.tr/ba/vijesti/71739-akademik-rudolfza-aa-spor-bih-i-hrvatske-treba-mirno-rijesiti.
96 The Badinter Commission, Opinion No. 3, 18485.
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Factual Situation: 20th Century Evidence for the 21st Century
To begin with, the State Border Treaty demonstrates that both countries reaffirmed shortly after their independence that the area in question was within
Bosnia and Herzegovina at the time of that independence. The Treaty, in fact,
clearly states that:
The state border between...Croatia and Bosnia and Herzegovina is determined
on the basis of the state of the borders at the time of the end of...Yugoslavia in 1991
and the mutual recognition of...Croatia and Bosnia and Herzegovina in 1992, identified on the topographic map 1:25,000 and, in practice, on the basis of the borders
between border land-registry municipalities, on the basis of the border towns and
villages at the time of the 1991 Census and on the basis of the dividing line which
divided the authorities of the Socialist Republic of Croatia and Socialist Republic of
Bosnia and Herzegovina.97
Hence, with the exception of the maritime boundary,98 the Treaty simply codified the boundaries that both countries had already accepted as having existed at
the time of their independence.99 Considering Croatias call for re-examination
of these facts, however, an inquiry into that matter is in order, at least for the
present, academic, purposes.
It must be noted at the outset that no evidence100 that the area in question
belonged to Croatia at the time of its independence, or any time prior, has been
presented by the Croatian government, academic community, or even in the
media. At the same time, all tax, cadastre, municipal and other records relating
to the area have always been maintained in Bosnia and Herzegovina, and show
that the entire area in question constitutes its territory. These records, moreover,
show that Bosnia and Herzegovina and its authorities have exercised jurisdiction
over this area for the entire life of the Yugoslav federation and to the present
day.
A particularly authoritative and clearly impartial corroboration is found in the
2009 Office of the High Representative101 Inventory of State property of Bosnia
and Herzegovina. This inventory explicitly lists Veliki and Mali kolj and the tip
of the Klek peninsula as the territory of Bosnia and Herzegovina, with all records
97 See, State Border Treaty, Article 2(1).
98 Which was drawn de novo using the method of equidistance.
99 Including the area in question, which the map attached to the State Border Treaty
unmistakably depicts as being within Bosnia and Herzegovina. The maritime boundary
on that map, moreover, could not have been arrived at using the method of equidistance if the land area in question actually belonged to Croatia.
100 Maps, cadastre, land-registry, or municipal records, or any other documents or material. Excluding arguments relating to the Ottoman times, when Croatia did not exist.
101 International institution with broad powers to implement the Dayton Peace Agreement, established by that Agreement and reaffirmed by UN Security Council resolutions. See, http://www.ohr.int.
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pertaining to it registered and maintained by Bosnia and Herzegovina or its
subdivisions.102
As for State practice, Croatia has never attempted to make a claim to, let alone
exercise control over, the land and maritime area in question,103 while Bosnia
and Herzegovina has done so in a continuous and effective manner.104 This can
be illustrated by reference to several examples including that Bosnia and Herzegovinas police regularly patrol the area in question, including the maritime area
up to the line of equidistance. Moreover, the Bosnia and Herzegovina State Border Police regularly interdicts vessels that traverse that maritime area, examines
their passengers for compliance with Bosnia and Herzegovinas laws and regulations relating to immigration, safety and navigation, and issues citations to those
not in possessions of the Bosnia and Herzegovina navigational permits.105
Moreover, while no Croatian official has ever visited the area in question, the
then Chairman of Bosnia and Herzegovinas Presidency visited the tip of the Klek
peninsula and Veliki kolj in 2009, accompanied by members of the Bosnia and
Herzegovina State Investigation and Protection Agency, the State Border Police
and the local Neum police.106
For the foregoing reasons it appears evident that Croatias timid attempts to
reopen the matter of the two islands and the tip of the Klek peninsula do not
represent actual claims or serious challenges to Bosnia and Herzegovinas sovereignty. Rather, they are likely tactical maneuvers, designed to extract concessions
from Bosnia and Herzegovina on other issues, also relating to the Neum area.
Those matters will be discussed in turn.
102 The inventory was compiled for the purposes of registering the State property of Bosnia and Herzegovina. The OHR relied on cadastre and court records, which are an integral part of the Inventory. OHR InventoryNeum, http://www.ohr.int/stateproperty/
DOCS/NEUM/INDEX.htm.
103 On the contrary, Articles 5 and 6 of Croatias Fishing Sea Regulation and the accompanying Maps 3940 clearly provide for delimitation along the line of equidistance,
with all of that area described and depicted as being on Bosnia and Herzegovinas side
of that line.
104 Including legislative and administrative control. See, for example, 10th Session of the
Federation of Bosnia and Herzegovina Government, 22 May 2007, for decisions relating
to the exercise of jurisdiction within the territorial waters of Bosnia and Herzegovina,
http://www.fbihvlada.gov.ba/bosanski/sjednica.php?sjed_id=29&col=sjed_saopcenje.
105 See, I Bosna svoje vignette ima: Plovidba bosanskim morem kota 160 Eura [Bosnia too has its own vignettes, navigation through the Bosnian sea costs 160 Euros],
Index.hr, 1 July 2008, http://www.index.hr/vijesti/clanak/i-bosna-svoje-vinjete-imaplovidba-bosanskim-morem-kosta-160-eura/393270.aspx.
106 The visit was described as part of the Presidency Chairmans desire to visit every
region of Bosnia and Herzegovina, it received substantial media coverage, and was
never challenged or objected to by Croatia. See for example, Darko Omeragi, Vrh
Kleka je bh. teritorija [Tip of Klek is B&H Territory], Osloboenje, 2 April 2009, 6. The
author, who was then the Adviser for Legal and Constitutional Affairs to the Chairman
of the Presidency, accompanied him on this trip.
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Figure 6.4The former Yugoslavias Straight Baselines.
Innocent Passage or Not so Innocent Intentions: Croatias
Internal Waters
The LOSC allows States whose coastlines meet certain characteristics to employ the
system of straight baselines from which the breadth of their territorial sea is
measured.107 In such cases, the maritime area on the landward side of straight
baseline constitutes the internal waters of the State,108 which enjoy essentially
the same status as the land territory, and no right of innocent passage attaches
as it does within a States territorial sea.109
The coast of the former Yugoslavia, and especially Croatias portion, clearly
meets the criteria set by the LOSC for the purposes of applying straight baselines.
107 LOSC, Article 7(1).
108 Ibid., Article 8(1).
109 Except for a continuing right of innocent passage through waters enclosed by straight
baselines that had previously not been considered as having the status of internal
waters, as provided by LOSC, Article 8(2).
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As a result, the former Yugoslavia applied the system of straight baselines along
the majority of its coastline, which elicited no challenge or objections on the part
of the international community.
With the dissolution of the former Yugoslavia, Croatia inherited the entire coastline along which the straight baselines shown on the above map were employed.
Croatia, however, did not inherit the right to employ those same straight baselines due to the fact that another independent StateBosnia and Herzegovina
now had a coastline on the landward side of those straight baselines. Namely,
while the straight baselines of the former Yugoslavia solely enclosed its own
waters, Croatias use of the identical system of straight baselines would not only
enclose Croatias waters but those of Bosnia and Herzegovina as well. The LOSC,
however, explicitly provides that [t]he system of straight baselines may not be
applied by a State in such a manner as to cut off the territorial sea of another
State from the high seas or an exclusive economic zone.110
Croatia, nonetheless, unilaterally adopted the straight baselines of the former
Yugoslavia, including between the Vodnjak Island and Cape Proizd.111 The straight
baselines connecting those two points cut off Bosnia and Herzegovinas territorial sea from the high seas in clear violation of the LOSC. As the LOSC imposes
an outright prohibition on such straight baselines, preservation of the relevant
rights is not dependent on any objections by an aggrieved State. Bosnia and Herzegovina has nonetheless registered its objections to the straight baselines unilaterally declared by Croatia between the Vodnjak Island and Cape Proizd on
multiple occasions.
In a meeting between the Bosnia and Herzegovina Presidency and the then
Prime Minister of Croatia, held in Sarajevo on 29 March 2007, the Presidency
informed the Prime Minister that it is the official position of Bosnia and Herzegovina that Croatias straight baselines between the two points violate Article
7(6) of the LOSC.112 In October 2007, the Minister of Foreign Affairs of Bosnia and
Herzegovina delivered Bosnia and Herzegovinas objections to those straight baselines to the Croatian Ambassador to Bosnia and Herzegovina, followed a month
later by objections in the Bosnia and Herzegovina Parliamentary Assembly.113
Moreover, the Presidency of Bosnia and Herzegovina dispatched to the President
110 LOSC, Article 7(6).
111 Pomorski Zakonik [The Maritime Code] 17/1994, 2 February 1994, Article 19(3)(b), http://
www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/HRV_1994_Code.
pdf. The law was renewed with identical provisions, Pomorski Zakonik [The Maritime
Code], 118/2004, 14 December 2004, Article 18. The two points are within the square
on Figure 6.4. Interestingly, straight baselines between these two points have no effect
on the breadth of Croatias territorial sea, raising further doubts about Croatias true
motivations.
112 The author was present at this meeting in his official capacity as identified in note 106.
113 Transkript 1. posebne zajednike sjednice Predstavnikog doma i Doma naroda Parlamentarne skuptine BiH [Transcript of the 1st Special Joint Session of the House of
Representatives and the House of Peoples of the Parliamentary Assembly of Bosnia
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and the Prime Minister of Croatia an official note that it is the position of Bosnia and Herzegovina that the current application by the Republic of Croatia of
straight baselines between the Vodnjak Island and Cape Proizd is not in accordance with Article 7.6. of the UNCLOS due to the fact that those baselines cut off
the territorial sea of Bosnia and Herzegovina from the high seas or an exclusive
economic zone.114
Croatia never articulated a formal response, let alone any opposition, to Bosnia
and Herzegovinas persistent objections on this matter, neither in bilateral meetings, through official channels nor publically. The absence of any such opposition
on Croatias part seems to indicate that Croatia is cognizant of the fact that the
straight baselines in question do violate the LOSC, especially as some Croatian
academics appear to have acknowledged that a violation exists.115 More importantly, Bosnia and Herzegovinas persistent objections and Croatias lack of opposition to such objections constitutes relevant State practice that only bolsters the
argument that the relevant provisions of the Croatian Maritime Code are invalid
under international law.
A Bridge to Nowhere
The final contentious point relates to Croatias plan to build a bridge between the
Croatian mainland and the Peljeac peninsula less than one kilometer from Bosnia and Herzegovinas coastline and a few hundred meters from the line of equidistance. The purpose of the bridge, as articulated by Croatia, is to connect the
Dubrovnik County to the rest of the country. At present Dubrovnik can be reached
from the rest of Croatia by land only by traversing Bosnia and Herzegovinas territory at Neum.
A bridge, as such, need not necessarily infringe upon Bosnia and Herzegovinas
rights under the LOSC or threaten its legitimate interests. The official plans, however, indicated that the bridge would be a mere thirty meters high, preventing
and Herzegovina], 13 November 2007, https://www.parlament.ba/sadrzaj/plenarne_
sjednice/Default.aspx?id=1141&template_id=5&langTag=hr-HR.
114 Presidency of Bosnia and Herzegovina, Decision on Dispatching a Note to the President and the Prime Minister of the Republic of Croatia, 56th Regular Session, 23 April
2009 (hereinafter, BiH Presidency Note). See also, Draen Remikovi, Jedni za gradnju, drugi za obustavu [Some Favor Building, Some Favor Ending] Nezavisne Novine,
9 July 2009, 89, recounting Bosnia and Herzegovinas objections and citing another
Presidency Members comment on the lack of any reaction by Croatia to those objections. This account is by no means exhaustive. Various Bosnia and Herzegovina officials have raised the matter with Croatian counterparts, and have articulated Bosnia
and Herzegovinas position in other fora.
115 Vukas, Maritime Delimitation in a Semi-enclosed Sea, 215, stating that the question remains whether the waters of Croatia delimited by the territorial sea of Bosnia
and Herzegovina can continue to be considered as having the legal status of internal
waters.
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entry of at least some vessels that have visited Neum in recent years.116 Croatia
has ventured to intimate that it alone is to decide the bridges specifications, with
its Ministry of Transport stating:
When we gave our assent for...the bridge, we certainly took into account the freedom and safety of vessels sailing to Neum....we concluded that...a bridge with a
height of 30 meters allows for a completely free and safe approach to Neum to all
vessels that normally dock there117
Leaving aside that Croatia ventured to conclude which ships normally dock at
Neum without consulting Bosnia and Herzegovina to whom the area belongs,
the statement ignores the fact that larger vessels have in fact docked in Neum.118
Moreover, with the average sea depth approaching 30 meters,119 the outer side of
the Klek Peninsula is well suited for a commercial port, which a bridge with these
specifications would negate.
As for the international legal regime governing the matter, the LOSC provides
that ships of all States enjoy the right of innocent passage through the territorial
sea...,120 and that the coastal State shall not hamper the innocent passage of
foreign ships through the territorial sea...121
As for relevant international practice, when Denmark announced its intention
to build a bridge in the Great Belt, Finland initiated proceedings before the ICJ,
asking that the Court rule, inter alia, that: 1. The right of innocent passage exists
in the Great Belt for all ships going to or from Finland; and that 2. This right is
applicable to the ships of all sizes, including all future ships which can be reasonably expected. 122
While the Court rejected Finlands application for temporary protective measures, after Denmark committed not to block the Great Belt for at least another
three years,123 the two countries reached a settlement by which Denmark paid
116 Horizontal clearance, moreover, was to be 150 meters, preventing safe navigation
except for the smallest of vesselshttp://www.edubrovnik.org/most_kopno_peljesac_
studija.php#. See also, Nevenka Horvat, Peljekim mostom zatvara se meunarodni
plovni put [A Peljeac Bridge would Close an International Sea Lane], Novi List,
17 June 2005.
117 Ibid.
118 Ibid.
119 See, http://www.pa2p.nl/images/croatiamaps/24_ploce-peljesac-mljet.gif. By contrast,
the average depth of Croatias Ploe Port, the primary destination for Bosnia and
Herzegovina-destined goods, is below 15 meters, http://www.port-authority-ploce.hr/
port%20map/OBALE%20I%20VEZOVI%202011.pdf.
120 LOSC, Article 17.
121 Ibid., Article 24(1).
122 Case Concerning Passage through the Great Belt (Finland v Denmark.), ICJ, Public Sitting, CR 91/9, (1991).
123 Ibid., paragraph 27.
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Finland a sum of 90 million Danish kroner,124 and the vertical clearance of the
bridge was set at 65 meters.
The dispute between Malaysia and Singapore in the Johor Strait also provides
useful guidance in this context. Malaysia initiated ITLOS proceedings after Singapore began land reclamation in an area leading to the Malaysian coast and
announced plans for a bridge to Pulau Tekong. The Tribunal approved Malaysias request for temporary protective measures, ordering Singapore to form with
Malaysia a joint commission to determine the potential effects of land reclamation on the maritime traffic and to suspend all works which are found by the
commission as infringing upon Malaysias rights for innocent passage.125
Singapore and Malaysia reached an agreement which committed Singapore to
respect the right of innocent passage through the Johor Strait,126 provided assurances that Malaysias navigational rights must not be infringed upon by Singapores reclamation works,127 and gave Malaysia an equal say on which activities
and types of work might infringe upon those rights.128
As for the steps that Bosnia and Herzegovina has taken, its official position was
articulated in the meeting between Bosnia and Herzegovinas Presidency and the
Croatian Prime Minister,129 and was also transmitted in the Note of 23 April 2009:
The Presidency...is of the view that the proposed construction of the...bridge...
should be solved in a manner that will first delimit the territorial seas of Bosnia and
Herzegovina and...Croatia, in order to determine whether the proposed bridge
encroaches upon the territorial sea of Bosnia and Herzegovina, and that will...ensure
Bosnia and Herzegovinas right to innocent passage between its territorial sea and
the high seas...It is the position of Bosnia and Herzegovina that these matters should
be resolved in accordance with...UNCLOS..., taking into account all relevant facts
and circumstances, including special circumstances, in the course of the delimitation
of the territorial seas of our two countries.130
The Presidency also invited Croatia to reach a negotiated solution or to undertake conciliation under article 284 of the LOSC, noting that Bosnia and Herzegovina will otherwise be obligated to seek protection...in accordance with Part
XV, Section 2 of the LOSC.131
124 See, Denmark Ministry of Foreign Affairs Press Release No.88/1992, reprinted in Elihu
Lauterpacht and Christopher J. Greenwood (eds.), International Law Reports, Volume
105 (Cambridge: Cambridge University Press, 1997), 249250.
125 ITLOS, Case Concerning Land Reclamation by Singapore in and around the Straits of
Johor (Malaysia v. Singapore), Provisional Measures, 8 October 2003.
126 Case Concerning Land Reclamation by Singapore in and around the Straits of Johor
(Malaysia v. Singapore), Settlement Agreement.
127 Ibid., Article 8.
128 Ibid., Articles 912.
129 Note 112 and the accompanying text.
130 BiH Presidency Note.
131 Ibid.
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While Croatia never responded to or otherwise commented on Bosnia and Herzegovinas objections, the description of the project was subsequently amended
by the company engaged for its construction to state that vertical and horizontal
clearances were to be 55 and 400 meters respectively.132 The Croatian government, however, ended that contract in May 2012, citing high costs,133 and its
official plans still cite vertical and horizontal clearances at 30 and 130 meters
respectively.134
Croatian officials have also stated that Croatia has not foreclosed the possibility of building a redefined, cheaper...bridge, and that if EU funding can
be obtained, the Peljeac bridge will be built.135 These comments and Croatias renewed attempts to obtain EU funding,136 following the European Investment Banks refusal in 2011 to finance the construction,137 indicates that Croatia
remains intent on building this bridge, but that it is contemplating a less costly
version, which would likely involve specifications with the original unacceptable
vertical and horizontal clearances.
It must finally be noted that Bosnia and Herzegovina has offered an alternative solution, that a sealed highway138 connecting the two parts of Croatia be
built through the Neum hinterland, and that Croatia has not rejected the idea.139
Croatia, however, has not accepted it either, despite its significant advantages.140
While this appears to be the most sensible and the most elegant solution to this
portion of the dispute, Bosnia and Herzegovina should not seek to avoid judicial
132 See, Project Presentation at http://www.viadukt.hr/projekti/objekti/most-kopno-peljesac-u-izgradnji. The projected cost was also raised to 268 million EUR. Ibid.
133 See, the Croatian Ministry of Maritime Affairs, Transport and Infrastructure, Press
Release, 13 June 2012, http://www.mppi.hr/default.aspx?id=9080.
134 See, the Croatian Ministry of Maritime Affairs, Transport and Infrastructure, Projekt
Peljeac [hereinafter, Project Peljeac], http://www.mmtpr.hr/UserDocsImages/projektpeljesac.pdf.
135 Nikola Jeli, Gradit emo Peljeki most [We Will Build the Peljeac Bridge], Globus,
18 July 2012, http://www.mppi.hr/UserDocsImages/a-w%20intw%20min%20SHDoncic-Globus%2018.7_12.pdf. citing an interview with Croatias Minister of Maritime
Affairs, Transport and Infrastructure (hereinafter, Globus Interview).
136 Pusi odlazi po novac za peljeki most [Pusi on a Trip for Funds for the Peljeac
Bridge], Politika.hr, 22 July 2012, available at http://politika.hr/hrvatska/9618-pusicodlazi-po-novac-za-peljeski-most, citing Croatias Foreign Minister trip to Brussels to
seek EU funds for this project.
137 Peljeki most se ne uklapa u viziju EU [Peljeac Bridge does not Fit EU Vision], HRT,
22 April 2011, http://www.hrt.hr/index.php?id=48&tx_ttnews[tt_news]=113308&tx_
ttnews[backPid]=38&cHash= 5f4600ece9.
138 With border controls applicable only if exiting within Bosnia and Herzegovina.
139 See, Globus Interview.
140 With only six kilometres of Bosnia and Herzegovinas territory to be traversed, a highway, in comparison to a bridge, would significantly reduce construction costs, distances, and travel times between the two parts of Croatia, and would not include a toll,
which the bridge plans envision.
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or arbitral resolution if Croatia attempts to extract further concessions, particularly in light of the fact that Bosnia and Herzegovina would likely prevail in any
such proceedings.
By Way of Conclusion: Bosnia and Herzegovinas Homework
For Bosnia and Herzegovina to continue to successfully protect its interests, however, it must undertake several endeavors:
1. Bosnia and Herzegovina should remain consistent in its message. A coordinated and somewhat assertive posture appears to have generated the increase
of bridge clearance specifications, but it also worked to establish relevant State
practice with respect to all three contentious matters. Departures from that
message141 can work to negate the positive effects that the persistent message
has produced to date.
2. Bosnia and Herzegovina should independently determine its normal
baselinesthe low-water line along its coast.142 That this has not been done
jeopardizes Bosnia and Herzegovinas potential rights, as the only normal
baselines of Bosnia and Herzegovina currently cited were purportedly determined by Croatia,143 a State with a vested interest in the matter. With the relatively short length of Bosnia and Herzegovinas coastline, any deviation of the
territorial sea boundary line on account of erroneously-determined baselines
could be detrimental to Bosnia and Herzegovina. The short coastline, at the
same time, ensures that the associated costs would be minimal.
3. Bosnia and Herzegovina should consider drawing straight baselines between
several points on its coast,144 and draw a line enclosing the Bay of Neum.145 By
doing so, Bosnia and Herzegovina would obtain a substantial surface area of
internal waters, with all additional rights and privileges pertaining thereto,
but would also somewhat move the baselines from which the breadth of its
141 Such as Bosnia and Herzegovinas Minister of Communications and Transports apparent signal that Bosnia and Herzegovina will not object to the Peljeac Bridge if Croatia
ratifies the State Border Treaty, Odrie li se Hrvatska otoka za Peljeki most? [Is Croatia Renouncing the Islands for the Peljeac Bridge], Bankamagazin.hr, 27 July 2012,
http://www.bankamagazine.hr/Naslovnica/Hrvatska/tabid/102/View/Details/ItemID/
79800/Default.aspx.
142 LOSC, Article 5.
143 This does not indicate that any large-scale charts were officially recognized by Bosnia
and Herzegovina in accordance with Article 5 of the LOSC. See also, Qatar-Bahrain,
paragraph 177, holding that the equidistance line can only be drawn when the baselines are known.
144 LOSC, Article 7.
145 Ibid., Article 10.
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territorial sea is measured,146 allowing it to obtain slightly more territorial sea
even if the line of equidistance is confirmed in any permanent delimitation
with Croatia.
4. Bosnia and Herzegovina should maintain the constructive approach that seeks
to preserve both its rights under international law and the good neighbourly
relations with Croatia. Should Croatia, however, continue to question the
substance of the State Border Treaty, initiate construction of the bridge, or
attempt to enforce internal waters regime in the relevant area, Bosnia and
Herzegovina should seek a judicial or arbitral solution to these matters. Any
such resolution will almost certainly be as favorable, and likely more favorable, to Bosnia and Herzegovina than the Treaty. If it is compelled to take this
route, Bosnia and Herzegovina should insist that equidistance is not...either
a mandatory legal principle, or a method having some privileged status in relation to other methods,147 and that when determining a territorial sea boundary courts examine whether there are special circumstances which make
it necessary to adjust the equidistance line in order to obtain an equitable
result.148
5. Bosnia and Herzegovina should persist in its objections to Croatias straight
baselines between the Vodnjak Island and Cape Proizd until Croatia has officially removed these baselines from its Maritime Code. Bosnia and Herzegovina should also seek to obtain particular guarantees149 on the right of passage
through Croatias territorial sea,150 considering both Croatias attempt to
declare that maritime area as its internal waters, but also taking into account
Croatias excessive claims relating to passage through its territorial sea.151
6. Bosnia and Herzegovina should continue to offer a corridor through the Neum
hinterland to enable Croatia to connect its territory, but should do so from
a position that such a corridor constitutes a valuable concession for which
concessions should be obtained with respect to matters to which Bosnia and
Herzegovina is not legally entitled to. In that regard, actions that Croatia is
146 Ibid., Article 15.
147 See, Tunisia-Libya, paragraph 110.
148 See, Qatar-Bahrain, paragraph 217. See also Bangladesh-Myanmar, paragraph 129,
holding, in relation to territorial sea delimitation, that before the equidistance principle is applied, consideration should be given to the possible existence of...special
circumstances...
149 See, Bangladesh-Myanmar, paragraphs 17076, for discussion of such guarantees in light
of the less than satisfactory position of one State relating to the right of passage.
150 The maritime area in question cannot be considered Croatias internal waters,
Croatias unilateral proclamation notwithstanding.
151 Department of Defense, Maritime Claims Reference Manual, DoD 2005.1-M, 23 June
2005, 148, citing Croatias excessive claims with respect to its territorial sea and the
resulting U.S. operational assertions.
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legally obligated to undertake should not be viewed as comparable concessions. Rather, Bosnia and Herzegovina should seek to obtain unimpeded
access to the Croatian port of Ploe152 or similar concessions.153
7. Bosnia and Herzegovina, finally, should continue to act with a view of strengthening good neighbourly relations on the basis of mutual respect and the rule
of law.
152 For details see Port of Ploe authority, http://www.port-authority-ploce.hr/index_eng
.asp.
153Croatias insistence that any potential corridor through the Neum hinterland be placed
under its exclusive jurisdiction is, however, unjustified and should not be entertained.
See Ante Srzi, Nee Hrvatska graditi cestu BiH [Croatia will not Build a Road for
BiH], Tportal.hr, 19 August 2013, http://www.tportal.hr/vijesti/svijet/280882/NeceHrvatska-graditi-cestu-BiH.html. Any arguments that this is necessitated by Croatias
EU membership are clearly without merit, especially when considered against the fact
that Croatia does not have exclusive jurisdiction in its own waters near Prevlaka.
chapter seven
The Scope for Unilateralism in Disputed Maritime Areas
Youri van Logchem*
Introduction
Conflicting claims to jurisdiction over maritime areas between two or more neighbouring coastal States have resulted in a large number of disputes. In the event
that either a third State or claimant coastal State conducts activities within a disputed maritime area, State practice shows that another claimant State will often
resort to unilateral measures in response. An example that is derived from the
Guyana/Suriname award of 20071 is the employment of navy vessels by Suriname
to remove from the area of overlapping claims an oil rig operated by a company
of a third State that was only licensed by Guyana. In maritime boundary disputes,
disagreement and conflict between neighbouring States over suchlike actions is
hardly unique.2 The conduct of activities within disputed maritime areas related
to exploring or exploiting oil and gas reserves, fishing or enforcing national legislation can be important catalysts in setting in motion a spiral of action and reaction
between neighbouring States, in which each of them tries to preserve and defend
their perceived sovereign rights and national interests. Neighbouring States will
thus often feel compelled to respond against unilateral activities conducted in an
area of overlapping maritime claims that they consider as infringing on their sovereign rights.
The objective of this chapter is to clarify the scope for unilateralism within
disputed maritime areas that are not covered by provisional arrangements. In this
*The author would like to thank Dr. A. G. Oude Elferink, Prof. A. H. A. Soons and
J. N. M. Schechinger LL.M. for their invaluable comments. Any errors or omissions
remain the sole responsibility of the author.
1Guyana/Suriname Arbitration (award) of 17 September 2007, 139 I.L.R. 566.
2Jianjun Gao, Comments on Guyana v. Suriname, Chinese Journal of International Law,
8(1) (2009): 199.
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youri van logchem
context, the principal question is which activities can be unilaterally conducted
under international law within disputed maritime areas, and which cannot. The
question that follows is what the parameters of international law are, when a
coastal State actually takes measures against any unilateral conduct by a neighbouring State, or a third State within an area of overlapping maritime claims.
The drafters of the United Nations Convention on the Law of the Sea (LOSC)3
recognised, in paragraph 3 of both Articles 74 and 83 of the LOSC, the need to lay
down some rules that apply in areas of overlapping claims. This common paragraph stipulates that neighbouring States need to cooperate and abstain from
behaviour designed to frustrate the reaching of a final delimitation agreement.
The provision reads as follows:
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit
of understanding and cooperation, shall make every effort to enter into provisional
arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be
without prejudice to the final delimitation.
This provision contains two types of obligations. One of the pillars of paragraph
3 is constituted by the exhortation to conclude provisional arrangements, which
is generally understood as obliging States to conduct negotiations in good faith
on provisional arrangements of a practical nature.4 The other pillar is the obligation to refrain from jeopardizing or hampering the reaching of a final delimitation agreement. In this chapter emphasis is placed on the obligation to not
hamper or jeopardize, the obligation to conclude provisional arrangements will
only be touched upon in passing.
In the dispute between Guyana and Suriname new ground was broken as the
Arbitral Tribunal was the first adjudicative body that had to consider the meaning
and effect of paragraph 3 of Articles 74 and 83 of the LOSC. In short, the leitmotif
of the award is that putting any natural resources within the area of overlapping claims under a moratorium is to be avoided. In a number of passages in the
Guyana/Suriname award, the Arbitral Tribunal reinforces this belief by stressing
the general importance of maintaining some degree of economic development
in the disputed maritime area.5 In the view of the Tribunal, this argument finds
direct support in the obligation to conclude provisional arrangements of a
practical nature in paragraph 3 of Articles 74 and 83 of the LOSC. In order to
determine what exercises of authority by a claimant State against activities of
3United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3.
4Rainer Lagoni, Interim measures pending maritime delimitation agreements, The
American Journal of International Law, 78(2) (1984): 354.
5Guyana/Suriname award, 700704, paragraphs 460, 465, 470.
the scope for unilateralism in disputed maritime areas
177
other claimant States or third States would be lawful, the Tribunal introduced the
standard of whether a unilaterally conducted activity has a permanent physical
impact on the marine environment. On the basis of a reading of the Guyana/
Suriname award, arguments have been made in literature that those activities not
having a permanent physical impact on the marine environment are a contrario
allowed within disputed maritime areas in the absence of provisional arrangements between neighbouring States.6 Whether this is a persuasive reading of the
award will be discussed in detail in the course of this chapter.
The chapter is organized as follows: first, it begins by further defining the problems that coastal States face when activities are unilaterally conducted within an
area of overlapping maritime claims. This is followed by determining the scope
of application of paragraph 3 of Articles 74 and 83 of the LOSC. Thereafter, how
to interpret paragraph 3 will be discussed. After the theoretical framework underpinning the paragraph has been laid out, the focus of the discussion will shift to
the judicial application of this paragraph in case law. In the two ensuing sections, the standard of permanent physical impact on the marine environment
as introduced in the Guyana/Suriname award will be further analysed, and four
issues arising from the reasoning of the Arbitral Tribunal that led up to the acceptance of this standard will be considered. Finally, the chapter concludes by providing some final remarks.
Defining the Problem
In the period that an area of overlapping maritime claims is not covered by provisional arrangements, coming within the purview of paragraph 3 of Articles 74
and 83 of the LOSC, the fundamental problem that confronts neighbouring States
is what activities can be conducted unilaterally within the area of overlapping
claims. That is, which activities can be undertaken without the prior agreement
or consent of the other claimant State, or only under the authority of one claimant State.
In this respect agreement is to be understood in a twofold sense: there
are those agreements that come about through explicit consent and those that are
the result of implicitly given consent. The key distinguishing difference between
these categories of consent revolves around how they come about. Implicit consent given through acquiescence, for instance, is inferred from silence or inaction
on the part of one State where action by this State was legally called upon. Such
action often constitutes conveying ones dissatisfaction over conduct of another
6Dominic Roughton, The rights (and wrongs) of capture: international law and the implications of the Guyana/Suriname Arbitration, Journal of Energy & Natural Resources
Law, 26 (2008): 398; Gao, Comments on Guyana v. Suriname, 202.
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State through issuing a diplomatic protest.7 The instrumental function of a protest is to thwart the development of adverse rights. Case law dealing with acquiescence indicates that the period of time in which silence is maintained is vital
in appraising whether silence has culminated in acquiescence.8
When a disputed maritime area is in fact covered by explicit or implicit provisional arrangements, activities must be conducted in conformity with what is
agreed. As already pointed out, most of the difficulties that coastal States face
do not arise if provisional arrangements exist but, to the contrary, if these are
absent. Under international law there is no obligation for States having overlapping claims to agree on the final delimitation of a disputed maritime area. Consequently, delimitation of overlapping areas relating to the exclusive economic
zone (EEZ) or continental shelf always derives from the will of coastal States. If
neighbouring States are thus unable to negotiate a final delimitation agreement,
three alternatives can be distinguished. In the first place, the dispute can be submitted to third party dispute settlement; second, the claimant States may agree
on provisional arrangements on how to manage disputed maritime areas pending
a final delimitation agreement; third and finally, claimant States can do nothing,
thereby leaving the area of overlapping claims unregulated.
The Scope of Application of paragraph 3 of Articles 74 and 83
of the LOSC
Under paragraph 3 of Articles 74 and 83 of the LOSC, neighbouring coastal States
have a twofold obligation. First, to make every effort to enter into provisional
arrangements and, second, to not hamper or jeopardize the reaching of final
agreement on delimitation. Underlying this paragraph are two distinct, yet intertwined, rationales, these being the promotion of activities activities and preventing the occurrence of unilateral activities prejudicial to final delimitation.9 This
was confirmed by the Arbitral Tribunal in the Guyana/Suriname award, where
the Tribunal held that paragraph 3 aims to unite two parallel obligations contained within the same treaty provision.10 The threshold that must be met before
the two obligations in this paragraph are binding on coastal States is that their
entitlements and claims to the EEZ or the continental shelf overlap.
7 Nuno Srgio Marques Antunes, Acquiescence, in Rdiger Wolfrum (ed.), The Max
Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008),
3, online edition, www.mpepil.com.
8 Ian MacGibbon, The scope of acquiescence in international law, British Yearbook of
International Law, 31 (1954): 150.
9 Lagoni, Interim measures pending maritime delimitation agreements, 353.
10 Guyana/Suriname award, 700, paragraph 459.
the scope for unilateralism in disputed maritime areas
179
Interpretational Challenges of the Obligation not to Hamper
or Jeopardize
The not to hamper or jeopardize obligation was meant to take account of the
fact that the unilateral conduct of activities can potentially adversely affect
the prospect of successfully concluding a final delimitation agreement. A literal
reading of paragraph 3 of Articles 74 and 83 of the LOSC does not tell us much
about what this obligation actually embodies. The wording of the paragraph,
in particular the use of the word and implies there is no hierarchical order
between these two obligations. Since paragraph 3 refers to pending agreement,
which is significantly broader and is not tied to the requirement that negotiations
must have been initiated, the scope of this obligation is not limited to when,
or if, coastal States are involved in negotiations on achieving a final delimitation agreement. Even if coastal States have concluded provisional arrangements
of a practical nature, they are not absolved from the obligation to refrain from
behaviour adversely affecting the reaching of a final delimitation agreement. This
duty to not to hamper or jeopardize only ceases to exist if final delimitation is
achieved.
In the drafting history relating to paragraph 3 of Articles 74 and 83 of the LOSC,
there is no clear indication of the intended meaning of the obligation not to
hamper or jeopardize. There were two views in the debate at the Third United
Nations Conference on the Law of the Sea (UNCLOS III): first, some delegations
had general concerns over the conduct of unilateral activities in disputed areas;
and secondly, there were concerns of other States that the introduction of a rule
limiting activities within disputed maritime areas would impair the economic
development of coastal States. Both positions shared the view that under certain
circumstances, the conduct of activities needs to be limited in disputed maritime
areas and that mutual restraint should be exercised by parties to the dispute.11
The second sentence of paragraph 3, to not hamper or jeopardize the reaching of a final delimitation agreement, can be read as to mitigate concerns of
States that activities unilaterally engaged in can, under certain circumstances,
negatively influence the successful conclusion of a final delimitation agreement. To this end, the range of activities that can be conducted without consent
from the other neighbouring coastal State(s) must be curtailed. Which activities
actually fall within this range of activities, or are beyond its confines for that
matter, is not clarified in the negotiating history.
11Report of the Chairman on the Work of Negotiation Group 7, NG7/23 (12 September
1978), Articles 74/83, paragraph 3 (Chairman, NG7), reproduced in Renate Platzder,
Third United Nations Conference on the Law of the Sea: Documents Volume IX (New York:
Oceana Publications, 1989), 430.
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Closest in providing some clarification was an informal discussion paper tabled
by Norway. This discussion paper touches upon the question whether guidelines
should be introduced for limiting legitimate exercises of jurisdiction, by making them subject to functional distinctions or whether the conduct of disputant
States needs to be restricted by introducing general guidelines.12 Although the
paper of Norway raised valid questions, the suggestion was not acted upon during the negotiations at UNCLOS III. Which activities, under which circumstances
can be conducted within disputed maritime areas is therefore something that
cannot be inferred from the drafting history of paragraph 3 of Articles 74 and 83
of the LOSC.
That the intention of the drafters of the LOSC was, however, not to completely
exclude the conduct of all activities from the area of overlapping maritime claims
can be assumed from the lack of support the concept of a moratorium was able to
attract from delegations. At UNCLOS III, there were very few delegations arguing
for the establishment of a moratorium on certain activities within the maritime
area in dispute. It was Ireland who introduced the concept of a moratorium at
the second session of UNCLOS III.13 The proposal of Ireland was to the effect that
no exploration or exploitation activities within the area in dispute are to be
conducted, unless the claimant States conclude provisional arrangements.14 The
main intent of this proposal was:
(...) to ensure that no exploration or exploitation activities take place in areas,
jurisdiction over which is the subject-matter of bona fide dispute between neighbouring States.15
From this point onwards, the concept of a moratorium was fully absent from
the discussions at UNCLOS III. It was not until in 1978, when Papua New Guinea
tabled a draft article advocating a ban on all economic activities within the area
of overlapping claims that the concept reemerged. The proposal of Papua New
Guinea reads as follows:
Pending agreement or settlement, the States concerned shall, either (a) make provisional arrangements taking into account the provisions of paragraph 1, or (b) establish
a moratorium against economic activities within the area under dispute.16
12Informal Document, NG7/16 (9 May 1978) (Norway), reproduced in Platzder,
Documents Volume IX, 406.
13Limited Documents of the Second Committee, A/CONF.62/C.2/L.43 (6 Augustus 1974),
UNCLOS III Official Records Vol. III (Ireland), 221.
14Ibid.
15Ibid.
16Informal Document, NG7/15 (9 May 1978), Article 83, paragraph 3 (Papua New Guinea),
reproduced in Platzder, Documents Volume IX, 406.
the scope for unilateralism in disputed maritime areas
181
Proposals introducing a rule that would preserve natural resources from development were met with general skepticism by the majority of delegations.17 The
root of this skepticism can be found in the fact that the economic development
of coastal States would be severely impeded.18
The Application of Paragraph 3 of Articles 74 and 83 of the
LOSC in Case Law
As things stand today, the concrete application by a court or tribunal of the not
to hamper or jeopardize obligation is still limited to one case, namely the Guyana/Suriname award of 2007. The Arbitral Tribunal in the dispute between the
two States was constituted pursuant to Article 287 of the LOSC. What carried
the conflict between these two neighbouring States to a new level was the decision by Suriname, to send navy vessels19 to a maritime area in dispute between
Guyana and Suriname, in order to remove an oil rig licensed only by Guyana to
engage in exploratory drilling. The matter was brought to the attention of the
Tribunal by Guyana who argued that the forceful expulsion of the oil rig was in
contravention of rules of international law. The Surinamese position was that the
oil rig operated in the sovereign waters of Suriname, and since Suriname did not
grant approval, its removal was justified.
Some Implications of the Guyana/Suriname Award
The Tribunal gave consideration to the obligation not to hamper or jeopardize the
reaching of a final delimitation agreement in the narrower context of the legality
of exploratory drilling by a company of a third State, under the license of one claimant State (Guyana) in the area of overlapping maritime claims. Each party to the
dispute accused the other of having breached the obligation not to jeopardize or
hamper the reaching of a maritime delimitation agreement.
Suriname took the view that licensing a concession holder to engage in exploratory drilling in a contested maritime zone hampered or jeopardized the reaching
17 Report of the Chairman on the Work of Negotiation Group 7, NG7/26 (26 March 1979)
(Chairman, NG7), reproduced in Platzder, Documents Volume IX, 433434; Summary
Records of Meetings of the General Committee, A/CONF.62/SR.126 (2 April 1980),
UNCLOS III Official Records Vol. XIII, (Iran), 19, paragraph 123.
18 Report of the Chairman on the Work of Negotiation Group 7, NG7/26 (26 March 1979)
(Chairman, NG7), 434.
19 The navy vessels used in the operation to remove the oil rig from the area of overlap
ping claims were not equipped with any weapons, only the personnel onboard carried
firearms for self-defense purposes. See Rejoinder of the Republic of Suriname, Volume1
(1 September 2006), 138, paragraph 4.52.
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of a final maritime delimitation agreement.20 In contrast, the manner in which
Suriname expelled the oil rig from the disputed maritime area made it, according
to Guyana, more difficult to reach a final maritime delimitation agreement, and,
therewith Suriname violated the obligation not to hamper or jeopardize.21
In its analysis of this obligation, the Tribunal started by stating that not to
hamper or jeopardize the reaching of a final delimitation agreement is a constituent part of one of the objectives of the LOSC, namely to contribute to peaceful
settlement of disputes and strengthening peaceful relations between States.22 On
the basis of the drafting history of paragraph 3 of Articles 74 and 83, the Tribunal
sets forth the following general rule concerning which activities can be unilaterally conducted by coastal States, and which cannot:
It is the Tribunals opinion that drawing a distinction between activities having a
permanent physical impact on the marine environment and those that do not,
accomplishes this and is consistent with other aspects of the law of the sea and
international law.23
Concerning the question of whether unilateral exploratory drilling was allowed,
the Tribunal held in the Guyana/Suriname award that exploratory drilling might
cause damage to the marine environment.24 In the view of the Tribunal, seismic
exploration is however an activity that in general should be allowed to be conducted within areas of overlapping maritime claims.25
It is important to note that the formula provided by the Tribunal is reminiscent of the reasoning of the International Court of Justice (ICJ) in the Aegean
Sea Continental Shelf case of 1976.26 The facts of the latter case were as follows.
On 1 November 1973, the Turkish government publicly announced its decision
to license the Turkish State Petroleum Company to explore for hydrocarbons in
areas of continental shelf where claims of Turkey overlapped with those of Greece.
Turkeys act of granting exploratory concessions to its national oil company, and
the exploratory activities the oil company undertook under these licenses were
challenged by Greece.
In the Aegean Sea Continental Shelf case, the ICJ found that only those activities which could, or would, cause irreparable damage to rights are not allowed to
be conducted. Three examples of the type of activities that would, in the view of
the ICJ, result in irreparable damage are: first, the erection of installations on or
20 Rejoinder of the Republic of Suriname, 152, submission 2.C.
21 Reply of the Republic of Guyana, Volume 1 (1 April 2006), 153, paragraph 10.1.
22 Guyana/Suriname award, 702, paragraph 465.
23 Ibid., 704, paragraph 470.
24 Ibid., 708, paragraph 481.
25 Ibid., 708, paragraphs 467, 480, 481.
26 Aegean Sea Continental Shelf (Provisional Measures) case, Order of 11 September 1976,
(1976) ICJ Reports.
the scope for unilateralism in disputed maritime areas
183
above the seabed; second, the exploitation or appropriation of natural resources
of the area of the continental shelf; and third, activities that cause physical damage to the seabed or subsoil, or to any of the natural resources that are present in
the area of the continental shelf.27
With regard to seismic exploration, there were two essential elements that led
the ICJ to conclude that parties to the dispute are allowed to engage in seismic
exploration within an area of overlapping maritime claims. First, the undertaken
exploratory activities were of a transitory character, as the vessel traversed the
high seas while engaged in magnometric research. Second, the exploration as
such did not involve the risk of physical damage to the seabed or soil considering only small explosions were set off.28 Therefore, the ICJ rejected the request
from Greece for interim protection as there was no danger that the rights of
Greece would be irreparably prejudiced in fact or in law.
Four Points of Debate
Four points of debate arise from the reasoning advanced by the Tribunal that
led to the general rule that only those activities having a permanent physical
impact on the marine environment would breach the obligation to not hamper
or jeopardize the reaching of a final delimitation agreement. These points will
be dealt with in the course of the next four sections.
First, in certain respects, the Tribunals reasoning on the criterion for what
activities can be conducted unilaterally by neighbouring States is problematic.
Most of the problems stem from the inconsistent use of language on the part
of the Tribunal. In addition, this inconsistency makes it unclear what exactly
would fall within the scope of activties that can be conducted unilaterally by
neighbouring States within unregulated disputed maritime areas. Second, the
reasoning of the Tribunal resulting in the adoption of the standard of activities
having a permanent physical impact on the marine environment is covered
in language that leaves open the possibility that circumstances might require
another approach. Third, the reliance of the Arbitral Tribunal on the Aegean Sea
Continental Shelf case, and on a number of lines of argumentation developed
therein, will be analyzed in greater detail. The Tribunals reliance on the Aegean
Sea Continental Shelf case poses the question whether it took fully account of
the fact that the ICJ had to judge Turkeys conduct of exploratory activities
in the Aegean Sea, in light of whether the special power to afford interim protection under Article 41 of the Statute of the International Court of Justice (ICJ
27 Ibid., 3, 10, paragraph 30.
28 Ibid.
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Statute)29 needed to be invoked to protect Greeces rights from being irreparable
damaged. The fourth, and final, issue concerns whether the balance struck by the
Tribunal between the two obligations laid down in paragraph 3 of Articles 74 and
83 of the LOSC, to make every effort to engage in provisional arrangements
and the obligation to not hamper or jeopardize the reaching of a final delimitation agreement does equal justice to the rationale of both obligations.
The Inconsistent Use of Terminology in the Guyana/Suriname Award
The Tribunal mentions in its reasoning six kinds of criteria to denote what
activities can only be pursued by agreement between neighbouring States.
These criteria are: first, physical change to the marine environment;30 second,
permanent physical change to the marine environment;31 third, physical damage to the seabed or subsoil;32 fourth, permanent physical impact on the marine
environment;33 fifth, to affect the other partys rights in a permanent manner;34
and sixth, permanent damage to the marine environment.35 These six criteria can
be grouped into two categories, namely: those dealing with the marine environment, including the seabed or subsoil and those concerned with the rights of
another party. The relation between these two categories can be defined as that
those activities affecting the marine environment also affect the other partys
rights in a permanent manner, and thus impair the reaching of a final delimitation agreement.
One of the main problems of the lack of consistent use of terminology is that
what activities actually can be unilaterally conducted slightly varies from one to
another criterion. For instance, the range of activities coming within the definition of physical change to the marine environment is, arguably, more expansive
than those under permanent physical change of the marine environment. The
addition of the word permanent logically excludes activities that only impact
temporarily on the marine environment.
Furthermore, identifying which activities bear the potential to cause permanent damage to the marine environment or affect the other partys rights in a
permanent manner, meaning those which can only be pursued by agreement
between neighbouring States, is by no means unproblematic. Seismic exploration
is unlikely to cause any permanent damage to the marine environment. It is how29 Statute of the International Court of Justice, opened for signature 26 June 1945, entered
into force 24 October 1945, 59 Stat. 1055.
30 Guyana/Suriname award, 702, 708, paragraphs 467, 480.
31 Ibid., 702, paragraph 467.
32 Ibid., 703, paragraph 469.
33 Ibid., 704, paragraph 470.
34 Ibid.
35 Ibid., 708, paragraph 481.
the scope for unilateralism in disputed maritime areas
185
ever an entirely different question whether exploration activities would affect
the other partys rights in a permanent manner, as these activities aim to gather
knowledge and provide one claimant State with an advantage over another. Vividly illustrating this point is the metaphor used by OConnell, counsel for the
government of Greece in the Aegean Sea Continental Shelf case, where he opined
that information is like a genie which once it leaves the confines of the bottle, is
not to be put back.36 Although a valid point, the argument was brushed aside by
the ICJ in its reasoning:
Whereas, in the present instance, the alleged breach by Turkey of the exclusivity of
the right claimed by Greece to acquire information concerning the natural resources
of areas of continental shelf, if it were established, is on that might be capable of
reparation by appropriate means...37
A vexing question is what purpose is served by this inconsistent use of terminology on the part of the Arbitral Tribunal, and, as a corollary, why it refrained from
laying down a uniform standard. In trying to find an answer to this question, the
award of the Tribunal is of little help.
The Importance of the Circumstances Surrounding a Dispute or Case
The language adopted by the Tribunal in paragraphs 480 and 481 of the award
has a strong normative (ought to be) and prescriptive (ought to do) character.38
In paragraph 481, for instance, the Arbitral Tribunal states that seismic activity
should be permissible in a disputed area.39 The conclusion the Tribunal arrives
at is that in the circumstances at hand, unilateral seismic testing does not
encroach on the duty to not hamper or jeopardize. What the Tribunal does
not say is that seismic activity by its very definition is permissible in a disputed
area. If the intention of the Arbitral Tribunal was to designate seismic activity
as a use of an area of overlapping maritime claims that is allowed, whatever the
circumstances, the Tribunal only had to decide on whether the act as such can be
categorized as seismic exploration. Therefore, it cannot be precluded that in the
view of the Tribunal within a certain constellation of circumstances, unilateral
seismic activity can amount to a breach of the duty not to hamper or jeopardize
the reaching of a final delimitation agreement. This makes it all the more conceivable, and certainly impossible to rule out a priori, that even seismic testing
can prejudice reaching a final agreement if certain circumstances are in place.
36 Argument of Professor OConnell in support of the Request for Interim Measures of
Protection by the Government of Greece, Aegean Sea Continental Shelf (Provisional
Measures) case, Oral argument of 25 August 1976, 79, 108.
37 Aegean Sea Continental Shelf (Provisional Measures) case, 11, paragraph 33.
38 Guyana/Suriname award, 708, paragraphs 480, 481.
39 Ibid., 708, paragraph 481 (emphasis added).
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The prominent position the circumstances surrounding the dispute have in the
reasoning of the Arbitral Tribunal makes it difficult to draw any firm conclusions
what the outcome will be in other maritime delimitation disputes or, to take
the argument one step further, to conclude that the standard of permanent damage to the marine environment is a rule of international law pinpointing the
scope for unilateralism in disputed maritime areas.
An example borrowed from the Guyana/Suriname award that illustrates the
importance of the specifics of a dispute, is how the disputing parties perceived
and treated activities related to fishing within the area of overlapping maritime
claims. Both Guyana and Suriname adopted national laws and measures to regulate fishing activities within the area in dispute, and undertook enforcement
action to enforce their national laws and measures. The issue was only raised
in the Guyana/Suriname award in the context of how the boundary line dividing
the area of overlapping claims should be drawn.40 Guyana argued it exercised
fisheries enforcement jurisdiction in the area of overlapping claims, to be more
precise between its fishery zone and the claimed N34E line, without protest from
Suriname or any other State.41 It must be noted that the argument was part of
a broader stratagem of Guyana to support its claim that a modus vivendi, or de
facto boundary line, observed by both Guyana and Suriname existed.42 Suriname
strongly contested the suggestion that it had acquiesced in the historical equidistance line of N34E as conjectured by Guyana.43 However, in the course of the proceedings none of the parties to the dispute questioned the legality of these fishing
activities conducted by Suriname or Guyana, nor was it argued that activities to
this end posed a breach of the duty not to hamper or jeopardize the reaching of
a final delimitation agreement. This example testifies not only to the importance
of the circumstances surrounding the dispute, but also to the subjective assessment of the parties to the dispute whether certain activities impair the reaching
of a final agreement.
The Character of Interim Measures
On the part of the Arbitral Tribunal, a clear awareness is shown of the fact that
interim measures have a special character.44 In the Guyana/Suriname award, the
Tribunal made the following statement:
40 Ibid., 602, 617, 618, 628629, paragraphs 149, 200, 202, 232.
41 Memorial of the Republic of Guyana, Volume 1 (22 February 2005), 5961, paragraphs
4.444.49.
42 Ibid., 117118, paragraphs 9.239.25.
43 Counter-Memorial of the Republic of Suriname, Volume 1 (1 November 2005), 30,
paragraph 3.41.
44 Guyana/Suriname award, 703, paragraph 469.
the scope for unilateralism in disputed maritime areas
187
It should be noted that the regime of interim measures is far more circumscribed
than that surrounding activities in disputed waters generally. As the Court in the
Aegean Sea case noted, the power to indicate interim measures is an exceptional one,
and it applies only to activities that can cause irreparable prejudice.45
The thought underpinning the Tribunals ruling is that the standard used to prescribe these measures cannot mutatis mutandis be applied to define activities
hampering or jeopardising a final agreement, as meant by paragraph 3 of Articles
74 and 83 of the LOSC.46 This is fortified by the fact that the Tribunal refers to
the lower threshold of hampering or jeopardizing the reaching of a final agreement.47 The Tribunal did, however, state that:
The cases dealing with such measures are nevertheless informative as to the type
of activities that should be permissible in disputed waters in the absence of a
provisional arrangement.48
In contrast to what the Tribunal stated, the informative value these cases hold
is not so much that they shed light on what activities should be permissible in
disputed waters. To the contrary, the value of case law dealing with interim measures is primarily contained in what activities are certainly not permissible to
be conducted within disputed waters unregulated by provisional arrangements.49
The Tribunal was thus perfectly right in arguing that:
Activities that would meet the standard required for the indication of interim
measures, in other words, activities that would justify the use of an exceptional
power due to their potential to cause irreparable prejudice, would easily meet the
lower threshold of hampering or jeopardising the reaching of a final agreement.50
In view of the Tribunals earlier characterisation of the threshold of hampering or jeopardizing the reaching of a final agreement as being lower than the
threshold for prescribing interim measures,51 it is surprising, to say the least, that
the criteria guiding the Tribunals analysis in whether a breach of paragraph 3
occurred are those criteria used by international courts and tribunals in assessing a request for interim measures, notably the risk of physical damage to the
seabed or subsoil. In other words, criteria that are sufficient to prescribe interim
measures. As emphasised before, it makes perfect sense for the Tribunal to argue
that conducting activities within disputed waters which are sufficient to institute interim measures, mutatis mutandis breach the obligation to not hamper
or jeopardize the reaching of a final delimitation agreement. In what respect,
45 Ibid.
46 Ibid.
47 Ibid.
48 Ibid.
49 Lagoni, Interim measures pending maritime delimitation agreements, 366.
50 Guyana/Suriname award, 703, paragraph 469.
51 Ibid.
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or to what extent, the not to hamper or jeopardize obligation actually diverges
from the criteria developed by international courts and tribunals for prescribing
interim measures is difficult to discern from the judgment. The Tribunal hence
blurred the line between the standard to institute interim measures and the duty
not to hamper or jeopardize the reaching of a final delimitation agreement.
As pointed out earlier, in the analysis of the scope of activities that can be
conducted without the consent of a neighbouring coastal State, the Tribunal
draws heavily on the Aegean Sea Continental Shelf case. Notwithstanding the
obvious attraction of analogically applying the reasoning advanced by the ICJ in
the Aegean Sea Continental Shelf case to the facts of the dispute between Guyana
and Suriname, as both cases dealt with overlapping claims to the same maritime
area in which certain activities were conducted unilaterally, there are however a
numer of issues that speak against generalizing this reasoning or the standards
developed therein.
It seems that at least three objections can be raised. The first relates to the
specificity of the procedure for requesting interim measures before the ICJ, or an
international tribunal or court in general. Secondly, in the Aegean Sea Continental
Shelf case, the ICJ gave a rather narrow interpretation of the power conferred
upon it by Article 41 of the ICJ Statute to prescribe interim measures of protection. Thirdly and finally, the specific contextual background against which the
decision in the Aegean Sea Continental Shelf case was rendered speaks against
the generalisation of this reasoning. These three arguments will be further
explored below.
The logical starting point of any inquiry into interim measures adopted by the
ICJ begins with Article 41, paragraph 1 of the ICJ Statute. This article reads as
follows:
The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought to be taken to preserve the respective rights of either party.
The term preserve the respective rights of either party has not been defined
in the ICJ Statute or in the Rules of Court. In the early case law of the ICJ, the
Court adopted a lower threshold for prescribing interim measures of protection.
As its case law matured, the ICJ has placed more stringent demands on when
the threshold for indicating interim measures of protection is met. It is no longer
sufficient that rights are merely infringed. What is required, is that any damage
that will be done to rights is not suited for reparation in fact or in law. This view
is strongly embedded in the reasoning of the Court in the Fisheries Jurisdiction
cases52 and in the Aegean Sea Continental Shelf case. In these cases, the Court
52 Fisheries Jurisdiction (Provisional Measures) cases, Order of 12 July 1973, (1973) ICJ
Reports.
the scope for unilateralism in disputed maritime areas
189
confirms that the object of interim measures is to preserve rights of parties, and
that only those rights constituting the subject of judicial proceedings which will
be irreparably prejudiced if the final judgment is anticipated, warrant interim
protection. The high threshold is illustrated by an observation the ICJ made in
the Aegean Sea Continental Shelf case, that reads as follows:
(...) on the other hand, the possibility of such a prejudice to rights in issue before
the Court does not, by itself, suffice to justify recourse to its exceptional power under
Article 41 of the Statute to indicate interim measures of protection.53
The case law of the ICJ also shows that this power to indicate interim measures
of protection, pursuant to Article 41 of the ICJ Statute, is not always as narrowly
construed in the case law of this Court as occurred in the Aegean Sea Continental
Shelf case. To the contrary, many Orders of the ICJ, as well as Orders of the International Tribunal for the Law of the Sea (ITLOS),54 indicate another ground that
formed, at least part of, the rationale to prescribe interim measures; that is the
view of the prevention of aggravating or extending a dispute.55
In academic circles and amongst individual ICJ judges, a lively debate has
ensued on whether Article 41 of the ICJ Statute endows the Court with the
competence to prescribe interim measures with the sole view to prevent
the extension, and further aggravation of a dispute. Where the debate centers
around is whether interim measures of protection were instituted with the ratio
decidendi being the prevention of further aggravation or extension, or if these
non-aggravation measures were always part of a wider set of measures with the
aim of preserving the rights of the parties to the dispute.
Essentially, two arguments are put forward either denying or supporting the
existence of a power sui generis to institute interim measures with a view to only
prevent the aggravation or extension of a dispute. First, the ICJ has a power sui
generis to indicate interim measures to prevent the extension or aggravation of a
53 Aegean Sea Continental Shelf (Provisional Measures) case, 11, paragraph 31.
54 Southern Bluefin Tuna (Provisional Measures) cases, Order of 27 Augustus 1999, 117
I.L.R. 148, 165, paragraph 90(1)); M/V Saiga (No.2) (Provisional Measures) case, Order
of 11 March 1998, 117 I.L.R. 112, 123124.
55 Nuclear Tests (Interim Protection) case (Australia v. France), Order of 22 June 1973, (1973)
ICJ Reports, 99, 106, paragraph 35; Nuclear Tests (Interim Protection) case (New Zealand
v. France), Order of 22 June 1973, (1973) ICJ Reports, 135, 142, paragraph 36; Frontier
Dispute (Provisional Measures) case, Order of 10 January 1986, (1986) ICJ Reports, 3, 9,
11, paragraphs 18, 32, point 1 A 10; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Provisonal Measures) case, Order of 8 April 1993,
(1993) ICJ Reports, 3, 23, 24, paragraphs 48, 52B; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Provisonal Measures) case, Order
of 13 September 1993, (1993) ICJ Reports, 325, 349350, paragraphs 57, 61; Land and
Maritime Boundary between Cameroon and Nigeria (Provisional Measures) case, Order
of 15 March 1996, (1996) ICJ Reports, (i), 13, 2223, 24, paragraphs 41, 49(1).
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dispute.56 This view is based on what the predecessor of the ICJ, the Permanent
Court of International Justice (PCIJ) held in the Electricity Company of Sofia and
Bulgaria case.57 In this case, the PCIJ stated that disputants should refrain from
any acts that might aggravate or extend the dispute. As pointed out by Thirlway, for the PCIJ to arrive at this conclusion, it must have perceived extending or
aggravating a dispute as either a universal principle, as embodied in Article 41 of
the ICJ Statute, or as something innate or inherent in adjudication.58
The second view denies the possibility of prescribing interim measures, if
disputed rights are not at risk of being irreparably prejudiced. According to this
view, one is not opposed to attributing an auxiliary role to prescribing measures
with the aim to prevent the extension or aggravation of a dispute, as long as the
primary aim of these non-aggravation measures is to prevent irreparable prejudice to disputed rights.59 In this regard, the ICJs case law is the main source
of confusion. In some Orders, the ICJ alluded to the existence of such a power,
for instance in the Frontier Dispute case and the Land and Maritime Boundary
between Cameroon and Nigeria case.60 On other occasions, the ICJ denied that
the power conferred upon it by Article 41 of the ICJ Statue can be invoked to
issue interim measures to prevent the aggravation or extension of a dispute.61 In
the Pulp Mills on the River Uruguay case, the Court held that interim measures
can only be issued if there is an urgent necessity to prevent irreparable prejudice to the rights in dispute, before the Court is able to give its final ruling on
the matter.62
Although the debate whether a power sui generis exists has not been conclusively settled, in the Aegean Sea Continental Shelf case, the ICJs analysis is entirely
concerned with the question whether irreparable damage to rights would occur.
This constitutes one of the main reasons for questioning whether the reasoning
56 Donald Greig, The Balancing of Interests and the Granting of Interim Protection by the
International Court, Australian Yearbook of International Law, 11 (1991): 127.
57 Electricity Company of Sofia and Bulgaria (Interim Measures) case, Order of 5 December
1939, (1939) PCIJ Ser. A/B 79, 199.
58 Hugh Thirlway, The Indication of Provisional Measures by the International Court of
Justice, in Rudolf Bernhardt (ed.), Interim Measures Indicated by International Courts
(Heidelberg: Max Planck Institute for Comparative Public Law and International Law,
1994), 13.
59 Paolo Palchetti, The Power of the International Court of Justice to Indicate Provisional
Measures to Prevent the Aggravation of a Dispute, Leiden Journal of International Law,
21 (2008): 632633; Zan He, The ICJs Practice on Provisional Measures (Frankfurt am
Main: Peter Lang, 2010), 3439.
60 Land and Maritime Boundary between Cameroon and Nigeria (Provisional Measures)
case, Order of 15 March 1996, (1996) ICJ Reports, (i), 2223, paragraph 41; Frontier
Dispute (Provisional Measures) case, 9, paragraph 18.
61 Pulp Mills on the River Uruguay (Provisional Measures) case, Order of 23 January 2007,
(2007) ICJ Reports, 113.
62 Ibid., 113, 129, paragraph 62.
the scope for unilateralism in disputed maritime areas
191
in the Aegean Sea Continental Shelf case, and the standard of irreparable damage to rights laid down therein, is a suitable standard to be transposed to other
disputes over exercising jurisdiction in maritime areas. The reason for this is
that the question whether interim measures of protection can be granted to prevent the occurrence of irreparable damage to rights, is fundamentally different
from whether a unilaterally conducted activity breaches the duty not to hamper
or jeopardize the reaching of a final delimitation agreement.
Furthermore, the contextual background against which the Aegean Sea Continental Shelf case took place was unusual, as the dispute between Turkey and
Greece was at the same time brought to the Court for settlement, and brought to
the attention of the United Nations Security Council. The fact that the situation
in the Aegean Sea was simultaneously under the consideration of the Security
Council and the ICJ can explain why the ICJs analysis is almost exclusively focused
on preventing irreparable damage occurring to rights. Thoughts of this nature were
also provided by Judge Elias in his separate opinion. He believed that:
It does not seem to me that the Court by appearing to lean more towards: preservation of rights and less towards possible aggravation of the situation or expansion
of the dispute, has maintained sufficient balance between the two elements as laid
down in the Courts own jurisprudence.63
His focal point of criticism centers on that the Court did little to prevent the
dispute in the Aegean Sea from aggravating or extending any further. Judge Elias
was not alone in his attitude that the Court could have adopted a more active
stance in contributing to solve the dispute between Turkey and Greece. Similar
thoughts were voiced by Judge Lachs, who also felt the Court should have done
more in promoting peace and facilitating settlement.64 Both judges did, however, concur with the opinion of the majority that on the basis of the facts, and
the corroborating arguments put forward by Greece; the requested interim
measures could not be prescribed.
Striking a Proper Balance?
In the award rendered between Guyana and Suriname, the Arbitral Tribunal
attempted to establish a balance between the two obligations laid down in paragraph 3 of Articles 74 and 83 of the LOSC, namely to allow for the use and development of the contested area, but at the same time to not complicate reaching a
final delimitation agreement as a consequence of the conduct of unilateral activities. The standard guiding the analysis of the Tribunal is whether a certain activity
63 Aegean Sea Continental Shelf (Provisional Measures) case, Separate Opinion of Judge
Elias, 3, 28.
64 Ibid., Separate Opinion of Judge Lachs, 3, 2021.
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will physically impact the marine environment permanently. The leading thread
running through the Tribunals argumentation is that the parties to a dispute can
draw mutual economic benefits from developing natural resources in the area of
overlapping maritme claims, therefore, mutual cooperation in developing these
natural resources needs to be promoted. The Tribunal recognised that a wide
variety of cooperative arrangements exist in State practice, and that international
adjudicative bodies often subscribe to these forms of cooperation between coastal
States as being essential to managing a maritime area pending final delimitation.65
Hence the Arbitral Tribunals view is that if circumstances emerge under which
cooperation between coastal States is possible, they are obliged to seek agreement on how natural resources in contested waters can be utilised in an efficient
and equitable manner.66 This view of the Tribunal is based on one of the objectives of the LOSC, namely to secure and effectively develop natural resources in
the oceans.67 The exhortation to conclude cooperative arrangements is imposed
on neighbouring States with overlapping claims to the same maritime area
for the very reason to secure and develop natural resources in the oceans.
The question that follows is whether the Tribunal gives too much emphasis to
economic development, at the expense of preventing the occurrence of activities
detrimental to solving a maritime boundary dispute. One of the possible adverse
effects of the Arbitral Tribunals emphasis on cooperatively developing natural
resources in the area of overlapping claims, is that neighbouring coastal States
with overlapping entitlements will make excessive maritime claims in order to
maximize the area in which the obligation to conclude provisional arrangements
will apply. Coastal States have as a matter of both general international law and
treaty law the obligation not to make excessive or unlawful maritime claims. In
inter alia Article 300 of the LOSC it is stipulated that obligations arising from the
LOSC are to be fulfilled in good faith, and freedoms, rights and jurisdiction are to
be exercised in a manner that does not amount to an abuse of rights.68
Enforcement
Apart from the general legality of unilaterally conducted activities under international law, there is a further element in the Guyana/Suriname award that coastal
States have to bear in mind, if they plan on acting against activities unilaterally conducted by another State. The Tribunal considered that the way in which
Suriname responded to unilateral drilling by the oil rig, licensed only by Guyana,
within the area in dispute constituted a threat of force, in breach of Article 2,
65 Guyana/Suriname award, 701702, paragraph 463.
66 Ibid., 700701, paragraph 460.
67 Ibid., 702, paragraph 464.
68 Lagoni, Interim measures pending maritime delimitation agreements, 356.
the scope for unilateralism in disputed maritime areas
193
paragraph 4 of the Charter of the United Nations,69 the LOSC and general international law.70 Therewith mutatis mutandis, the manner in which Suriname conducted itself was inconsistent with the objective to not hamper or jeopardize the
reaching of a final delimitation agreement. Notwithstanding Surinames contention that it acted within the legal parameters of enforcement jurisdiction, the
Tribunal struck down this contention, because it considered that the manner in
which Suriname forced the oil rig from the area of overlapping claims was akin
to military action.71 Particularly, the language uttered by Suriname, something
in the vein of leave this area at once, or the consequences will be yours, which
was interpreted by the Tribunal as constituting a threat of force, was held against
Suriname.
What, at least in part, seems to have motivated the Tribunal to condemn
Surinames action, was the consideration that peaceful instruments were available to Suriname, under the LOSC in section 2 of Part XV, to challenge the legality of exploratory drilling by Guyana. Especially if the urgency and the facts
of the situation would so require, the compulsory procedures provided for under
the LOSC enabled Suriname to request interim measures of protection.72 In addition, the Tribunal was of the view that two other options were available to Suriname: to enter into negotiations or to submit the case to adjudication. This line
of reasoning has been critized by Papanicolopulu who argues that entering into
negotiations, presenting the case to a court, or requesting interim measures, are
all viable options in the phase before any activities have yet to begin, however not
to put a stop to activities which are already initiated or underway.73
The reasoning of the Tribunal seriously restricts the possibilty for coastal
States that want to enforce their domestic legislation within maritime zones
of overlapping claims against (an)other neighbouring State(s). However, the
Tribunal does allow enforcement action to take place within certain legal
parameters, namely that when engaged in enforcement the use of force, is necessary, unavoidable and proportional.74 There is, however, the real possibility
that, depending on the circumstances of the case, enforcement action carries
the potential to only deepen the dispute and inflame the relation between
neighbouring States, thus hampering or jeopardizing the chances of dispute
settlement in the process. Above all, if the fact is taken into account that the need
69 Charter of the United Nations, opened for signature 26 June 1945, entered into force
24 October 1945, 1 UNTS XVI.
70 Guyana/Suriname award, 696, paragraph 445.
71 Ibid., 696, paragraph 445.
72 Ibid., 696, paragraph 446.
73 Irini Papanicolopulu, Enforcement action in contested waters: the legal regime, paper
presented at the 6th IHO-IAG ABLOS Conference Contentious Issues in UNCLOS
Surely Not?, Monaco, 2527 October, 2010, 4.
74 Guyana/Suriname award, 696, paragraph 445.
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for enforcement action on the part of a claimant State only arises in reaction to
an activity that is conducted unilaterally by another State. Incidents that were
reported to have occurred in the South China Sea and East China Sea, concerning the arrests of fishing vessels perfectly exemplify that enforcement action can
fuel tensions between neighbouring States. These arrests of fishing vessels have
occasionally sparked diplomatic rows between two neighbouring States having
overlapping claims to a maritime area.75 A more recent example in this regard
is the clash between a Japanese coastguard vessel and a Chinese fishing vessel of
the coast off the disputed Senkaku/Diayou islands.76
Another problem which results from the statement of the Tribunalthat
instead of removing the oil rig from the area of overlapping claims, Suriname
had a plethora of alternatives at its disposal to call the legality of the unilateral
conduct of Guyana into questionis that if negotiations fail for whatever reason,
a State is either obliged to request interim measures or turn to adjudication to
resolve the issue. The substantive provisions relating to dispute settlement are
outlined in Part XV of the LOSC. As a general rule, disputes concerning the application or interpretation of the LOSC must be submitted to compulsory procedures resulting in binding decisions. Under Article 287 of the LOSC, three judicial
fora are enumerated to which parties have access, in order to obtain a binding
decision on a dispute, which are: arbitration, the ICJ and ITLOS. When proceedings are initiated before any of these three institutions, each party to the dispute
can request interim measures. The conditio sine qua non for requesting interim
measures is thus that proceedings must have been initiated.
This might conflict with the idea that States are autonomous in deciding
whether to bring a case to third party settlement, and a fortiori whether to obtain
interim measures of protection, or to pursue a solution of the dispute through
negotiations. In addition, although it is not so much of a legal argument, requesting interim measures would be very cost-ineffective for States with overlapping
claims to a maritime area. In particular, if a coastal State only wants to challenge
the unilateral conduct of a State, but has, for example, no further intention to
bring the underlying dispute over conflicting claims to jurisdiction over a maritime area to an international court or tribunal for final settlement.
There is however a further complication which stems from the possibility for States to exclude certain categories of disputes from compulsory procedures; these substantive limitations on the scope of issues subject to compulsory
procedures are found in Section 3 of Part XV of the LOSC. One of the categories of
75 See for instance, Diplomatic tensions after Japanese arrest Chinese fisherman row,
The Telegraph, 8 September 2010; China accuses Vietnam in South China Sea row,
BBC News, 10 June 2011.
76 For instance: Japan coastguard arrests Chinese fisherman, AFP, 20 December 2011;
Tensions between China and Japan rise over disputed gas field, The Telegraph,
17 September 2010.
the scope for unilateralism in disputed maritime areas
195
issues that can be excluded from the compulsory dispute settlement mechanism
of the LOSC, is disputes concering Articles 15, 74 and 83 of the LOSC.77 Therefore
if a State has opted out from compulsory dispute settlement for these kinds of
disputes by making a declaration under Article 298, what are the implications
hereof, both for States that have opted out, and those that have not but want to
question activities conducted unilaterally by a State that has made such a declaration?
This is not a theoretical problem, as for instance China, which is currently
involved in a number of maritime boundary disputes, has made such an declaration under Article 298. On a literal reading of Article 298 of the LOSC, the
answer is straightforward. Article 298 states that, if a declaration is made under
this article, all disputes originating from Articles 15, 74 and 83 are excluded from
the compulsory dispute settlement mechanism. A declaration made under Article 298 would therefore encompass all the different paragraphs coming under
the heading of these three articles. Therefore, by that same rationale, disputes
over paragraph 3 of Articles 74 and 83 of the LOSC cannot be scrutinized by the
judicary. This conclusion seems to be strong. If the intention of the drafters of
the LOSC really would have been to only exclude those paragraphs that unquestionedly deal with sea boundary delimitations, would it not have been logical
that explicit reference was made to paragraph one of Articles 74 and 83?
An argument to the contrary can however be advanced. Article 298 of the LOSC
refers to application of Articles15, 74and83 relating to sea boundary delimitations, which can be interpreted to mean that any declaration only extends to
those paragraphs contained in these three articles which actually deal with sea
boundary delimitations. If on that account it can be established that the obligations laid down in paragraph 3 of Articles 74 and 83 can be separated from
the dispute over sea boundary delimitations, a judiciary can make a ruling
on the obligations incumbent on neighbouring States, pending the conclusion of
a final delimitation agreement.
Lessons Learned and Final Remarks
The obligation to not hamper or jeopardize places important limitations
on the scope for the conduct of unilateral activities by States in areas of overlapping maritime claims. In addition, this obligation also curtails the ways in which
coastal States can respond to unilaterally conducted activities. It remains, however, impossible to provide a specific set of norms defining the scope for unilateral activities in disputed maritime areas that can find application in all cases.
77 Natalie Klein, Provisional measures and provisional arrangements in maritime bound
ary disputes, International Journal of Marine and Coastal Law, 21 (2006): 425.
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The circumstances that surround a maritime boundary dispute, which can differ
greatly from one dispute to another, invariably form the crux of the matter. This
does not mean, however, that nothing can be said to render the scope for unilateralism in disputed maritime areas more precise. There are a number of activities
that would certainly come under the scope of the standard of permanent physical impact on the marine environment. All activities with a view to extracting
any natural resources, for instance oil and gas reserves, present within the maritime area in dispute, or the placing of permanent installations on the seabed, cannot be conducted as long as the claims of neighbouring States to the same area
overlap. This is a conclusion Lagoni already drew in his article in 1984:
One can thus infer that any activity which represents an irreparable prejudice to
the final delimitation agreement, namely the establishment of installations on or
above the sea-bed or the actual appropriation or other use of the natural resources,
would doubtless be prohibited under paragraph 3 of Articles 74/83, since these
activities could be terminated by an injunction if the dispute were submitted to a
court or international tribunal.78
What additional clarification has the Guyana/Suriname award to offer, since it is
the first case in which the duty to not hamper or jeopardize the reaching of a final
delimitation agreement found judicial application? Unfortunately, the extent to
which the Guyana/Suriname award can serve as an example for States disagreeing over what activities are allowed under international law in disputed maritime
space is limited.79 As we have seen, the reasoning of the Arbitral Tribunal is not
always persuasive when dealing with the obligation to not hamper or jeopardize
the reaching of a final delimitation agreement. There are two reasons for this.
First, the Tribunal approached the question within the framework that was laid
out earlier by the ICJ in the Aegean Sea Continental Shelf case and, in addition,
decided to cast its analysis largely in terms of the line of reasoning developed
by the ICJ in this case. Activities that are of a transitory nature and which will
cause no irreparable damage to rights, or irreparable damage to the seabed or
subsoil, are therefore generally allowed in disputed waters. The second reason
is the emphasis that is laid by the Tribunal on the particular circumstances that
were present in the Guyana/Suriname dispute and the carefully constructed reasoning in this regard, that if the circumstances were different another conclusion
might have been reached. Because of the recurring emphasis the Tribunal places
on the circumstances of the case, one must be careful in drawing the conclusion
that activities not causing permanent damage to the marine environment are
a contrario allowed under international law.
There thus remains a fair amount of uncertainty as to what scope is left for
the unilateral conduct of activities by States in areas of overlapping maritime
78 Lagoni, Interim measures pending maritime delimitation agreements, 366.
79 Roughton, The rights (and wrongs) of capture, 399.
the scope for unilateralism in disputed maritime areas
197
claims, that are not covered by provisional arrangements. Furthermore, doubt
can be shed on whether the threshold of activities having a permanent physical
impact on the marine environment lends itself for defining the scope for unilateralism within areas of overlapping claims, and also whether this threshold can
serve as a general guideline for determining what exercises of authority a claimant State can take against the (unlawful) conduct of activities by other States in
contested waters.
part three
ENDURING DISPUTES IN EAST AND SOUTHEAST ASIA
chapter Eight
Sovereignty as an Obstacle to Effective Oceans
Governance and Maritime Boundary
Makingthe Case of the South China Sea
Sam Bateman*
Introduction
Cooperation for the effective governance of the South China Sea has proven difficult to achieve because the bordering countries have become fixated on their
claims to sovereignty over offshore features and maritime space. This paper
argues that this fixation on sovereignty is misplaced because due to the complex
geography of the South China Sea and the multiple bordering States, a conventional system of straight line maritime boundaries, which would allow maritime
jurisdiction on the primary basis of sovereignty, will be impossible to achieve in
many parts of the sea. Thus the bordering countries should change their mindsets
from one of sovereignty, sole ownership of resources and seeking fences in the
sea to one of functional cooperation and cooperative management of the South
China Sea and its resources. This would be in accordance with both the obligation
of bordering countries under Part IX of LOSC and the spirit of the 2002 ASEANChina Declaration on the Conduct of Parties in the South China Sea (DOC).
Cooperation not Sovereignty
Despite both the obligation of the bordering countries under Part IX of the United
Nations Convention on the Law of the Sea, 1982 (LOSC)1 and the intent of the 2002
ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC),
*Dr Sam Bateman is a Professorial Research Fellow at the Australian National Centre
for Ocean Resources and Security (ANCORS), University of Wollongong, NSW 2522,
(email address: sbateman@uow.edu.au), and currently also an Adviser to the Maritime
Security Programme at the S. Rajaratnam School of International Studies (RSIS), Nan
yang Technological University, Singapore (email address: issambateman@ntu.edu.sg).
1United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
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cooperation for the effective governance of the South China Sea has proven
difficult to achieve. The main reason for this situation is that bordering countries have become fixated on their claims to sovereignty over offshore features
and maritime space. Assertions of sovereignty have become even more strident
in recent years and bordering countries have eschewed cooperation as much as
anything for fear that by cooperation they will somehow be compromising their
sovereignty claims.
It is suggested that the South China Sea situation will only be settled when the
bordering countries change their mindsets from one of sovereignty, sole ownership of resources and seeking fences in the sea (that is, establishing maritime
boundaries between neighbouring countries) to one of functional cooperation
and cooperative management. Largely led by the Indonesia-sponsored workshops on resolving conflict in the South China Sea, this was where the process
appeared to be heading in the 1990s and early 2000s.2 However, in recent years
it has become bogged down by nationalistic assertions of sovereignty, some of
which are ill-founded. These assertions have picked up their own momentum due
to public fervour and the notion that the islands involved are an integral part of
the nation state. Instead of exercising restraint, the littoral countries have been
building up their facilities on disputed features and rapidly modernising their
naval forces.3 These developments lift the stakes in the South China Sea and set
back any progress towards cooperation with managing the sea, its environment
and its resources.
The shift from a more cooperation-focused mindset to a nationalistic one is
evident in the change of focus between the DOC in 2002 and the Guidelines for
developing a code of conduct for the South China Sea agreed at the meeting of the
ASEAN Regional Forum (ARF) in Bali in July 2011. The DOC identified five activities as requiring cooperation pending a comprehensive and durable settlement
of the disputes: marine environmental protection; marine scientific research;
safety of navigation and communication at sea; search and rescue operations;
and combating national crimes at sea.4 However, the 2011 Guidelines, rather than
making any specific mention of cooperation, include the statement that Initial
activities to be undertaken under the ambit of the DOC should be confidencebuilding measures.5
2 Hasjim Djalal, The South China SeaThe Long Road Towards Peace and Cooperation
in Sam Bateman and Ralf Emmers (eds.), Security and International Politics in the South
China Sea: Towards a Co-operative Management Regime (London and New York: Routledge, 2008), 17589.
3 Carps Among the SpratlysTensions in the South China Sea, The Economist, 12 July
2011, http://www.economist.com/node/18332702.
4 ASEANChina Declaration on the Conduct of Parties in the South China Sea (2002), article 6. This declaration is available at: http://www.aseansec.org/13163.htm.
5 ASEAN Secretariat, Guidelines for the Implementation of the DOC, Guideline 5. The guidelines are available at: http://www.asean.org/documents/20185-DOC.pdf.
the case of the south china sea
203
While countries have this nationalistic mindset, settlement of the South China
Sea disputes is highly unlikely. To some extent a displacement of goals is evident
in the South China Sea. Most parties to the disputes have lost sight of the objective
of developing effective management regimes for the sea and its resources. Whereas
in the past, most particularly at the Indonesia-sponsored workshops, the focus was
on cooperation as a means of building confidence, the process has been reversed
with the current notion that confidence and trust are necessary before there can
be cooperation. Confidence and trust may be interpreted in this context as some
concession of sovereignty by the other party, unlikely though that may be.
This paper argues that this fixation on sovereignty is misplaced. Due to the
complex geography of the South China Sea and the multiple bordering States,
a conventional system of straight line maritime boundaries, which would allow
maritime jurisdiction on the primary basis of sovereignty, will be impossible to
achieve in many parts of the sea. Furthermore, it is a mistaken notion that the
sovereignty disputes over the islands and reefs in the South China Sea can be
resolved on a multilateral basis. This is incorrect because sovereignty is fundamentally a bilateral political issue for resolution between the States that claim
a particular feature. While arrangements for cooperation in managing the South
China Sea and its resources can be discussed multilaterally, sovereignty remains
a matter for bilateral discussion between the disputing parties. Even if there are
three claimants to a particular feature, as is the case with some features in the
South China Sea, bilateral agreement between two of the claimants would then
facilitate bilateral negotiations with the third.
A cooperative management regime is the only solution to the problems of
the South China Sea. The most acceptable framework for such a regime would be
a web of provisional arrangements covering cooperation for different functions
and perhaps even with different areas for each function. These functions include
development of oil and gas resources, fisheries management, marine safety,
marine scientific research, good order at sea, and preservation and protection of
the marine environment. Furthermore, any agreement or plan along these lines
developed by ASEAN members that ignores the position of China, or attempts
to delineate disputed areas in the South China Sea without the involvement of
China is doomed to failure. Similarly, unilateral activities by China that do not
involve the other littoral countries will also fail to deliver desirable outcomes.
Discussion of cooperation and this functional approach must be on the regional
agenda to prevent the South ChinaSea from simmering away indefinitely as a
major obstacle to regional stability.
Maritime Boundaries
The world was a much simpler place when countries could only claim a 3 nautical mile territorial sea. Then maritime boundaries were not required unless countries were adjacent to each other on the same piece of land, or had territories
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sam bateman
lying within 6 nautical miles of each other. When the territorial sea was the limit
of a countrys maritime jurisdiction, boundary differences had little effect on the
relative size of jurisdiction that a country could claim and maritime boundary
negotiations between neighbouring countries were comparatively straightforward. All this has changed. Countries now require maritime boundaries if they
have territory within 400 nautical miles of each other (and more in situations
where the countries have an entitlement to areas of extended continental shelf),
and the location of a boundary can have a significant effect on the size of a countrys maritime jurisdiction. It is little wonder, therefore, that since the acceptance
of the extended maritime jurisdiction under LOSC, the pace of maritime boundary delimitations has slowed down.
Despite the old adage that good fences make good neighbours,6 sometimes it
is physically impossible, for a variety of reasons, to build good fences, particularly
in the sea. This is the case in East Asia mainly because of the complex geography
of the region, with its concave areas of coast, numerous islands and archipelagos, and longstanding historic claims, means that many boundaries, or at least
their end points or turning points (tri-points or tri-junctions), will require the
agreement of three, or even more, countries. Also, boundaries are not an end in
themselves. Their purpose is to set limits on sovereignty, jurisdiction and the
allocation of resources, and to provide a basis for effective governance of regional
oceans and seas. Without them, good order at sea is much more problematic.7
Further difficulties arise due to liberal interpretations by regional countries of
the principles in LOSC for drawing straight territorial sea baselines. Coastal States
have an incentive to make maximum use of straight baselines as it enables them
to maximize the extent of their maritime jurisdiction. Straight baselines may
also be advantageous in maritime boundary delimitation negotiations. As Victor
Prescott has explained, States may also use such lines to gain an advantage in
negotiating common boundaries with neighboring States.8
Almost all East Asian countries (that is, Cambodia, China, Japan, North Korea,
South Korea, Malaysia, Myanmar, Thailand and Vietnam) have used a straight
baseline system. Most of these systems appear excessive in terms of what is customarily regarded as acceptable under international law.9 At issue then is whether
these straight baselines should be the starting point for boundary determinations,
6 Attributed to Robert Frost, Mending a Wall, in J. M. and M. J. Cohen, The Penguin
Dictionary of Quotations, 1st edition (Harmondsworth: Penguin Books, 1960), 163.
7 Sam Bateman, Good Order at Sea in the South China Sea in Wu Chicun and Zou
Keyuan (eds.), Maritime Security in the South China Sea: Regional Implications and
International Cooperation (Farnham: Ashgate, 2009), 1534.
8 John Robert Victor Prescott, Straight and Archipelagic Baselines in Gerald Blake (ed.),
Maritime Boundaries and Ocean Resources (London: Croom Helm, 1987), 39.
9 Sam Bateman and Clive Schofield, State Practice regarding Straight Baselines in East
AsiaLegal, Technical and Political Issues in a Changing Environment, paper deliv
ered at international conference on The Difficulties of Implementing the Provisions
the case of the south china sea
205
Source: I Made Andi Arsana, Australian National Centre for Ocean Resources and Security
(ANCORS)
Figure 8.1Malaysian and Vietnamese Joint Submission.
or whether it should be the actual coastline. In making their joint submission
for an extended continental shelf in the South China Sea, Malaysia and Vietnam
accepted each others straight baselines as the base points for determining the
area of continental shelf covered by the submission (see Figure 8.1).10
There are two other issues which complicate maritime boundary delimitation
that are relevant to the South China Sea. The first is that the negotiation and
of UNCLOS, International Hydrographic Bureau, Monaco, 1617 October 2008, http://
www.gmat.unsw. edu.au/ablos/ABLOS08Folder/ablos08_papers.htm
10 Sam Bateman and Clive Schofield, Outer Shelf Claims in the South China Sea:
New Dimension to Old Disputes, RSIS Commentary 65/2009 (S. Rajaratnam School of
International Studies, Singapore, 1 July 2009).
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adoption of a maritime boundary between two or more States is always political
in nature.11 It is this politics of maritime boundary making that bedevils effective governance of the South China Sea. Domestically, a countrys negotiators
will be highly influenced by national sentiment and thus reluctant to concede
sovereignty or sovereign rights over maritime space that the community regards,
rightly or wrongly, as part of their country. Unfortunately this is the situation
now in the South China Sea where the national media of the claimant countries,
including the Chinese media, has given wide coverage to the disputes.12
There are no firm laws for boundary-making although LOSC Articles 15, 74 and
83 provide some broad principles. Two countries may agree whatever boundary
they like. Provided an agreement is a bilateral one and there is no impact on a
third party, there are few limitations on the type of boundary arrangement that
might be reached between two countries.13 However, it is often the case in the
South China Sea that a bilateral boundary agreement will have some impact on
a third party. The fundamental point is that every delimitation is different and
there is no limit on the factors that might be considered in reaching an equitable
outcome.
Political flexibility in determining maritime boundaries is apparent when
assessing whether EEZ and continental shelf boundaries should coincide. Different approaches to this issue are evident around the world, depending as much
as anything on the state of the bilateral relationship between the neighbouring
countries. If the relationship is sound, overlapping jurisdiction may be feasible
but if it is not, then the parties are unlikely to achieve the necessary level of
agreement and cooperation.
While the general trend is to have coincident seabed and water column
boundaries,14 this is not always possible, and States with overlapping EEZ claims
may adopt separate boundaries for the EEZ and the continental shelf.15 This may
11 Division for Ocean Affairs and the Law of the Sea, Handbook on the Delimitation of
Maritime Boundaries. (New York: United Nations, 2000), 42, paragraph 193.
12 Ben Blanchard, China unlikely to budge on thorny South China Sea dispute, Reuters,
12 November 2011, http://www.reuters.com/article/2011/11/13/us-china-seas-idUSTRE
7AC01 A20111113.
13 Bill Campbell, Maritime Boundary Arrangements in the Timor Sea, in Donald R.
Rothwell and Martin Tsamenyi (eds.), The Maritime Dimensions of Independent East
Timor, Wollongong Papers on Maritime Policy No. 8 (University of Wollongong, Centre
for Maritime Policy, 2000), 76.
14 Robin R. Churchill and A. Vaughan Lowe, The Law of the Sea, 3rd edition, (Manchester:
Manchester University Press, 1999), 197.
15 For example, the EEZ boundary agreed, but not yet ratified, between Australia and
Indonesia in the Timor and Arafura Seas does not coincide with the pre-existing seabed
boundary in some parts of these seas. Treaty between the Government of Australia and
the Government of the Republic of Indonesia establishing an Exclusive Economic Zone
Boundary and certain Seabed Boundaries, signed 14 March 1997.
the case of the south china sea
207
be the case when a continental shelf boundary was agreed, largely on the basis
of geological considerations, prior to wide acceptance of the EEZ regime in the
late 1970s and early 1980s. While the two boundaries need not necessarily coincide, as a matter of international order, the use of separate boundaries is undesirable in view of the complicated legal regime that might result and the possibility
that tensions between the parties could be heightened.16 This is a relatively new
problem of international law with no good experience yet of how the inevitable
management difficulties will be resolved.17
When the seabed boundary is different to the water column boundary, one
State has jurisdiction over fisheries while the other has jurisdiction over oil and
minerals of the seabed and subsoil. This is the situation now with segments of the
maritime boundary between Australia and Indonesia.18 However, in an apparent
rebuttal of any Indonesian bid to seek a similar arrangement with Malaysia in the
waters east of Natuna Island in the South China Sea, as well as in the northern
part of the Malacca Strait, Malaysia made a declaration on ratifying LOSC that
the Malaysian understanding was these boundaries should coincide.19 An EEZ
boundary coincident with the previously agreed continental shelf boundary in
this area would be more favourable to Malaysia.
While accepting the principle of non-coincident EEZ and continental shelf
boundaries can introduce an element of flexibility in maritime boundary negotiations, they are unlikely to be an outcome of boundary negotiations in the South
China Sea except possibly in the southern area between Indonesia and Malaysia
just discussed. The commitment of bordering countries to their fences in the sea
inhibits this outcome. Overlapping boundaries place a premium on the preparedness to cooperate which tends to be lacking in the South China Sea at present.
The last issue to mention that complicates the delimitation of maritime
boundaries is that the principles involved have become more complex. As Ivan
Shearer has noted with regard to trends in the delimitation of the continental shelf and of the EEZ, Emphasis is now placed not on natural prolongation
16 David James Attard, The Exclusive Economic Zone in International Law, (Oxford: Claren
don Press, 1987), 214, 216.
17 M. Herriman, and M. Tsamenyi, The 1997 Australia-Indonesia Maritime Boundary
Treaty: A Secure Legal Regime for Offshore Resource Development?, Ocean Develop
ment and International Law, 29: 361396, (1998); and, S. B. Kaye, The Use of Multiple
Boundaries in Maritime Boundary Delimitation: Law and Practice, Australian Year
book of International Law, Vol. 19 (1998), 4972.
18 Herriman, and Tsamenyi, The 1997 Australia-Indonesia Maritime Boundary Treaty.
19 All declarations and statements with respect to the Convention and to the Agreement
on Part XI made before 31 December 1996upon signature, ratification or accession
have been analysed and published in The Law of the Sea: Declarations and statements
with respect to the United Nations Convention on the Law of the Sea and to the Agreement
relating to the Implementation of Part XI of the United Nations Convention on the Law of
the Sea, (United Nations, Sales No. E.97.V.3).
208
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but on the geography of the immediate area in which delimitation is to take
place, on disparity in coastal lengths, andto a limited extenteconomic
factors affecting the immediate area.20
The International Court of Justice (ICJ) has applied equitable principles to
judgments relating to the determination of maritime boundaries but has been
loath to list or define the relevant factors that will be considered in assessing
equity.21 It is not just a matter of equidistance. Consideration may also be given
to geographical features, including the relative length of coastlines (especially
where a significant disparity exists between the coastlines involved), the shape
of the opposite or adjacent coasts (particularly whether they are concave or convex), and the relative weight to be given islands in delimitation, as well as to
geological, geomorphological, economic and political factors.22 Nevertheless, and
despite all the learned legal debate on the issue, the happy fact is that nobody
has ever really known what an equitable principle of delimitation was or is.23
These factors make maritime boundary negotiations all the more difficult, particularly if the negotiators are influenced by domestic political considerations and
the communitys lack of appreciation of what might constitute an equitable outcome should it appear contrary to the national interests of their own country.
It has been claimed that the relevant circumstances of greatest importance
to the South China Sea are firstly, that the disputed islands do not generate full
maritime zones in relation to adjacent larger land bodies, and secondly, that
the proportional lengths of coastlines are important in determining whether an
allocation is equitable.24 Another relevant consideration is that, in deliberating
on maritime boundaries, the ICJ has given consideration to traditional fishing
activities, and the relative impact on the livelihood and economic well-being
of the countries concerned, and the political status of the territories involved.25 In
the South China Sea, traditional fishing could be an important consideration, for
20 Ivan A. Shearer, Starke's International Law, 11th edition, (London: Butterworths, 1994),
244245.
21 For a succinct description of the relevant factors considered by Courts and Tribunals
in determining maritime boundaries, see Stuart Kaye, Australias Maritime Boundaries,
2nd edition Wollongong Papers in Maritime Policy No. 12 (University of Wollongong,
Centre for Maritime Policy, 2001), 2139.
22 A useful discussion in the context of the South China Sea of the equitable principles
that have been used to resolves boundary disputes may be found in Mark Valencia,
Jon M. Van Dyke and Noel A. Ludwig, Sharing the Resources of the South China Sea
(The Hague: Martinus Nijhoff Publishers, 1997), 5054.
23 Malcolm D. Evans, Maritime Boundary Delimitation: Where Do We Go From Here?
in David Freestone, Richard Barnes and David Ong (eds.), The Law of the Sea: Prospects
and Problem (Oxford: Oxford University Press, 2006), 144.
24 Valencia, Van Dyke and Ludwig, Sharing the Resources of the South China Sea, 134.
25 For example, the historic fishing rights of Tunisian fishermen were considered by
the ICJ in the Tunisia/Libya Case although ultimately the Court found that it did not
have to determine whether the areas fished over time by Tunisian fishermen affected
the case of the south china sea
209
example, in and around the Paracel islands which have been traditionally fished
by Vietnamese fishermen.26
The South China Sea
The general width of the South China Sea is in the order of 600700 nautical
miles. This means that when only the claimed territorial sea baselines are taken
into account and no weight is given to offshore islands, there is a significant belt
of high seas in the middle of the sea beyond national jurisdiction (see Figure8.2).
However, this area outside of national jurisdiction may disappear altogether if
extended continental shelves are accepted in the areas or if some islands are
accepted as entitled to a full suite of maritime zones. The area of high seas is
larger if the limits to national jurisdiction are measured from normal, low-water
line, baselines along the coast rather than from the straight baselines that have
been claimed by the South China Sea coastal States, which as has been noted, in
the case of some bordering countries appear excessive.
The situation is further complicated by the fact that most of the area beyond 200
nautical miles from the mainland coasts is within 200 nautical miles from the
various small islands in the South China Sea. This means that if any of the islands
within the major groups of the Pratas, Paracel and Spratly islands are recognized
as generating a full set of maritime zones, there is no area of the South China Sea
that is outside some form of national jurisdiction.27 This situation is shown in
Figure 8.3 which includes equidistant lines between the various features and the
coasts of the bordering countries.
Other boundary disputes exist in the South China Sea that are independent of
sovereignty over the islands. These include the boundaries in the South between
Indonesia and Malaysia and in the North between the Philippines and China
and Taiwan. Indonesia has enclosed the Anambas and Natuna Islands within
its system of archipelagic baselines. The continental shelf boundary agreed with
Malaysia in 1969 applies to the east and west of Natuna Island, but there is no
EEZ boundary. The Philippines has as yet no maritime boundaries with any of
its neighbours.
In addition to the general problems of maritime boundary delimitation already
discussed, there are two other features of the geography of the South China Sea
that markedly complicate maritime boundary making in the region. The first is
the boundary, as they were all on the Tunisian side of the line. Kaye, Australias
Maritime Boundaries, 3233.
26 Greg Torode, Disputed Islands are prized catch, South China Morning Post, 30 May
2011, A4.
27 Alex G. Oude Elferink, The Islands in the South China Sea: How Does Their Presence
Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland
Coasts, Ocean Development and International Law, 32 (2001): 169.
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sam bateman
Source: I Made Andi Arsana, Australian National Centre for Ocean Resources and Security
(ANCORS)
Figure 8.2Notional Equidistance Lines in the South China Sea ignoring
the Islands.
the case of the south china sea
211
Source: I Made Andi Arsana, Australian National Centre for Ocean Resources and Security
(ANCORS)
Figure 8.3Notional Equidistance Lines in the South China Sea including
the Islands.
212
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determining which of the many offshore features in the South China Sea are entitled to a full suite of maritime zones, and the second is the existence of numerous
tri-points in the sea where the agreement of at least three countries is required
before a full set of maritime boundaries could be established for the sea.
Islands or Rocks?
Whether or not an offshore feature is a true island or not can be a vitally important issue in negotiating maritime boundaries. LOSC provides that islands are
entitled to all maritime zones, including a continental shelf and EEZ, but that
rocks, which cannot sustain human habitation or an economic life of their own,
shall have no exclusive economic zone or continental shelf.28 These considerations have contributed to a dramatic increase in the number and difficulty of
potential maritime boundary delimitations.29
International practice varies as to the effect to be given islands in maritime
boundary delimitations.30 There are examples in State practice in which islands
have been given full weight, but often also, they may be given little or no effect
even if an island appears entitled to a full suite of maritime zones. In the case
of boundary delimitation between islands, they will likely be given full effect. In
some other situations which are relevant to the South China Sea, no effect has
been granted to an island because its sovereignty is subject to dispute.31
In other cases, where, for example, an island under the sovereignty of one
country lies within the limits of the territorial sea or EEZ of another, it may be
given a territorial sea of reduced size. This is the situation in the Torres Strait
between Australia and Papua New Guinea (PNG) where Australian islands adjacent to the PNG coast have a territorial sea based on equidistance on their landward side and a 3 nautical mile territorial sea on their seaward side. Australian
islands further out in the strait but were given an all round territorial sea of only
3 nautical mile and are enclaves within PNGs EEZ. There are similar situations
elsewhere in the world and these provide a potential precedent for the South
China Sea.32
The tests of human habitation and economic life to determine whether a particular feature is a rock or an island entitled to a full set of maritime zones have
attracted considerable attention in the literature. Prescott and Schofield claim
28 LOSC, article 121(3).
29 United Nations, Handbook on the Delimitation of Maritime Boundaries, 33, para
graph 153.
30 Ibid., 3334.
31 Ibid., paragraph 159, 34.
32 Valencia, Van Dyke and Ludwig, Sharing the Resources of the South China Sea, 4748.
the case of the south china sea
213
that these tests should be applied only when it has been established that an
insular feature is a rock. They argue that to classify a particular feature as a rock
because it cannot sustain human habitation or an economic life of its own is to
put the cart before the horse.33 The basic test is to decide whether the feature
meets the ordinary meaning of a rock, which might include an islet but needs to
be distinguished from an island proper.34 The general conclusion appears to be
that the term rock in LOSC article 121(3) denotes any type of small island.35
The greater majority of the features in the South China Sea fall short of being
fully fledged islands in accordance with LOSC Part VIII capable of generating a
full suite of maritime zones. Most are classified as submerged features or low-tide
elevations.36 Some, however, are above water at high tide and thus come within
the regime of islands in LOSC. According to Schofield, A case can be made that
some of the Spratlys at least, are fully fledged islands capable of generating claims
to continental shelf and EEZ rights.37 Itu Aba, Spratly Island and Thi Tu in the
Spratlys, Lincoln Island and Woody Island in the Paracels, and Pratas Island have
been identified as features in the South China Sea that due to their size and other
characteristics appear to be fully fledged islands.38
This line of argument tends to make the arguments over the tests of whether
a feature can sustain human habitation or an economic life of its own rather
semantic. If there are features within the South China Sea that are true islands
rather than rocks then these tests do not apply. This at least removes one area
of debate that was leading nowhere because the tests could be interpreted so
many different ways that it was useless. Even if the tests could be applied so as
to provide an answer, it is also the case that the ability of rocks to sustain human
habitation might change over time. As Schofield and Prescott observe, There
can be no doubt that future technology will make it easier to occupy rocks and
exploit their resources without any habitation if that is desirable.39 This is in line
with Charneys view that ocean features, which may not have been capable in the
past of sustaining human habitation or an economic life of their own, may later
33 Victor Prescott and Clive Schofield. The Maritime Political Boundaries of the World, 2nd
edition, (Leiden: Martinus Nijhoff Publishers, 2005), 76.
34 Ibid., 67
35 Marius Gjetnes, The Spratlys: Are They Rocks or Islands? Ocean Development and
International Law, 32 (2001): 194.
36 Clive Schofield, Dangerous Ground: A geopolitical overview of the South China Sea,
in Sam Bateman and Ralf Emmers (eds.), Security and International Politics in the South
China Sea (Abingdon: Routledge, 2009), 13.
37 Ibid., 14.
38 Elferink, The Islands in the South China Sea, 178.
39 Prescott and Schofield, The Maritime Political Boundaries of the World, 78.
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develop these capabilities due to changes in economic demand, technological
innovations or new human activities, and thus cease to be article 121(3) rocks.40
Examples can be found around the world to support the notion that the test
of whether or not a feature can sustain human habitation or an economic life of
its own is not relevant unless it is first established that the particular feature is in
fact a rock. The first example is Rockall, an extremely small, uninhabited, remote
rocky islet in the North Atlantic Ocean lying about midway between Iceland and
the British Isles. The United Kingdom in claiming sovereignty has conceded that
Rockall is in fact a classic rock within the meaning of LOSC article 121(3) that fails
the tests of habitation and economic life. It was wholly ignored for the purpose
of the 1988 UK-Ireland agreement for delimiting the continental shelf between
these two countries, and no EEZ or continental shelf has been claimed from it.41 in
1997 the UK rolled back its maritime claims from using Rockall as a basepoint for
its 200nm fisheries zone claim (N.B. the UK does not claim an EEZ), instead using
basepoints on the Outer Hebrides. As a result Rockall is only used to generate a
territorial sea on behalf of the UK.42
Jan Mayen island, a volcanic island in the Arctic Ocean under the sovereignty
of Norway, and Heard and McDonald islands, remote islands in the Southern
Ocean under Australian sovereignty, provide examples of islands that have been
given weight in boundary agreements and used to generate EEZs and continental
shelves even though they have no human habitation or economic life of their
own. With an area of 368 square kilometers, Heard Island is the largest feature
of the group.43
In 1981, the Conciliation Commission appointed by Iceland and Norway to
make recommendations on the delimitation of the continental shelf between
Iceland and Jan Mayen held that in the light of the (then) status of international
law on the subject, Jan Mayen was entitled to a continental shelf as well as a
territorial sea and EEZ.44 The maritime boundary between Jan Mayen and Greenland (Denmark) was settled by the ICJ in 1993 with the Court adjusting a line of
40 Jonathan I. Charney, Rocks That Cannot Sustain Human Habitation, American Journal
of International Law, 93 (1999): 867.
41 Ibid., 275376.
42 See, D. H. Anderson, British Accession to the UN Convention on the Law of the
Sea, International and Comparative Law Quarterly, 46, 1997 761786, at 778. See also,
Schofield, C. H. (2012), Islands or RocksIs that the real question?: The Treatment of
Islands in the Delimitation of Maritime Boundaries, pp. 322340 in Nordquist, M. H.,
Moore, J. N., Soons, A. H. A. and Kim, H.-S. (eds), The Law of the Sea Convention: US
Accession and Globalization, (Leiden/Boston: Martinus Nijhoff, 2012)
43 Gesoscience Australia, Heard and McDonald islands, http://www.ga.gov.au/education/
geoscience-basics/dimensions/remote-offshore-territories/heard-and-mcdonaldislands.html
44 Douglas M. Johnston, The Theory and History of Ocean Boundary Making, (Montreal:
McGill-Queens Press, 1998), 161.
the case of the south china sea
215
equidistance in Denmarks favour due to the great disparity between the lengths
of the coasts of the two territories.45
The maritime boundary agreed by France and Australia between Kerguelen
Island and Heard and McDonald islands appears to be a median line.46 Both
countries have thus accepted that these features are entitled to a full set of maritime zones. Australia has also claimed a large continental shelf and EEZ from
Heard and McDonald islands, and while the case for McDonald Island generating
these zones may be problematic because of the nature of this feature, Kaye does
not believe this is significant because McDonald Island rests on the same shelf as
Heard Island.47 Kaye has also rejected the argument questioning the propriety of
claiming large continental shelves and EEZs from sub-Antarctic islands because
it does not accord with the simple approach of LOSC article 121.48
The size of a feature is an important element in determining whether it is
an island or a rock. However, there is no agreement on what the size criterion
should be, and attempts to define islands, rocks and islets on the basis of size
have failed.49 A detailed discussion of features in the South China Sea, which may
appear capable of supporting claims to a full suite of maritime zones, is beyond
the scope of this paper. However, Table 8.1 compares the sizes of major features
within the South China Sea with other islands in the Indo-Pacific region that have
been used to support an extended EEZ.
The small Japanese claimed feature of Okinotorishima far out in the Pacific
Ocean is an extreme example of what is a rock within the scope of LOSC
article 121(3) that has been used to claim an EEZ and continental shelf on
behalf of Japan.50 The small outcrops that comprise this feature measure no
more than 10 sq. meters at high tide, but Japan has erected several man-made
structures on the reef, including living quarters. China disputes the legitimacy
of the EEZ around Okinotorishima and there have been incidents when Japan
has protested the activities of Chinese marine scientific research vessels in this
claimed EEZ.51
45 Prescott and Schofield, The Maritime Political Boundaries of the World, 523.
46 Kaye, Australias Maritime Boundaries, 153.
47 Ibid., 206207.
48 Ibid., 207
49 Gjetnes, The Spratlys, 194.
50 Yann-huei Song, Okinotorishima: A Rock or an Island? Recent Maritime Boundary
Controversy between Japan and Taiwan/China, in Seoung-Yong Hong and Jon M. Van
Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea,
(Leiden: Martinus Nijhoff Publishers, 2009), 145176.
51 Exclusive Economic Zone in Question: Japan to protest China survey near Okinotori,
The Japan Times, 10 May 2004, http://www.japantimes.co.jp/text/nn20040510a3.html.
216
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Table 8.1.Relative Size of Small Islands in Indo-Pacific Region
ISLAND
South China Sea
Spratly Group52
Itu Aba
Thitu Is.
West York Is.
Spratly Is.
Paracel Group53
Woody Island
Pattle Island
Duncan Is.
Pratas Is.54
Islands Elsewhere
Okinotorishima55
Rose Island56
Swain Island57
Ashmore Is.58
Cartier Is.59
Marotiri60
Clipperton Island61
Bassas da India62
Theva-I-Ra63
Occupied by:
Taiwan
Philippines
Philippines
Vietnam
Land Size (hectare)
46
22
16
1315
China
China
China
Taiwan
500
30
48
174
Japan
U.S. (American Samoa)
U.S. (American Samoa)
Australia
Australia
French Polynesia
France
France
Fiji
<1
21.4
150.8
9.74
1.7
4.3
160
20
2
The data in Table 8.1 supports the view that there is ample precedent for some
of the features in the South China qualifying as islands that might support claims
to a continental shelf and EEZ. Furthermore, giving no weight at all to these
features would seem to run counter to the premises of international law applicable to maritime boundary delimitation.64
52 Valencia, Van Dyke and Ludwig, Sharing the Resources of the South China Sea,
Appendix1.
53 Monique Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands, (Leiden,
2000), 17.
54 See, http://www.oceandots.com/pacific/pratas/.
55 Tomoyuki Yamamoto, Tiny Coral Planted to bolster defense of EEZ, The Asahi
Shimbun, 14 June 2007, http://www.qualitymarine.com/Tiny-coral-planted-to-bolsterdefense-of-EEZ-(06/18/07).
56 See, http://en.wikipedia.org/wiki/Rose_Atoll.
57 See, http://en.wikipedia.org/wiki/Swains_Island.
58 See, http://en.wikipedia.org/wiki/Ashmore_and_Cartier_Islands.
59 Ibid.
60 See, http://en.wikipedia.org/wiki/Marotiri_(Austral_Islands).
61 See, http://www.cabrillo.edu/~ncrane/Clipperton/ratsandpigs.pdf.
62 See, http://en.wikipedia.org/wiki/Bassas_da_India.
63 See, http://en.wikipedia.org/wiki/Conway_Reef.
64 Elferink, The Islands in the South China Sea, 179.
the case of the south china sea
217
Notwithstanding the above discussion, it would simplify maritime boundary
delimitation in the South China Sea if the claimant States could be persuaded
to give up claims for maritime zones beyond a 12 nautical mile territorial sea.65
Beckman has argued that by making their joint extended continental submission, in effect Malaysia and Vietnam have acknowledged that none of the Spratly
islands is entitled to a full suite of maritime zones.66 On the other hand, if some
of the Spratlys and Paracels, as well as Pratas Island, about which there seems
to be fewer questions about their status as islands, could generate a full set of
zones, then there would be no areas of high seas or extended continental shelf
in the South China Sea. Despite the submission by Malaysia and Vietnam, it is
unlikely that other claimants in the South China Sea, particularly China, would
accept the position that no features in the South China Sea can generate EEZs
and continental shelves. Again, domestic political perceptions would likely militate against such a concession.
Third Parties and Tri-points
Many delimitation situations involve the presence of third States, and this is certainly the case in the South China Sea. This is a consequence of the geography
of the South China Sea with the presence of eight bordering entities (Indonesia,
Malaysia, Brunei, the Philippines, Singapore, Taiwan, China and Vietnam). The
situation is then complicated by the presence of the islands in the sea which,
as has been argued, may be entitled to generate an EEZ and a continental shelf.
Depending on any future agreement on sovereignty over these features, we thus
have a situation where potentially there are numerous tri-points in the sea which
require the agreement of at least three countries before a full set of straight-line
maritime boundaries might be achieved.
In practical terms, when two countries are negotiating a maritime boundary
agreement, they generally terminate their delimitation line before it reaches
the area of overlapping potential claim by a third State, or short of the point
equidistant to the coast of the parties to the negotiations and the third State.67
This is the situation in the eastern and western approaches to Singapore Strait
where bilateral boundary agreements have been agreed between the three pairs
of parties (that is, Singapore and Malaysia, Singapore and Indonesia, Indonesia
65 Ibid., 171.
66 Robert Beckman, South China Sea: Worsening Dispute or Growing Clarity in Claims?
RSIS Commentary 90/2010, (S. Rajaratnam School of International Studies, Singapore,
16 August 2010). See also Bateman, S. and Schofield, C. H. (2009), Outer Shelf Claims
in the South China Sea: New Dimension to Old Disputes, (Singapore: RSIS Commentary
65/2009, 1 July 2009)
67 United Nations, Handbook on the Delimitation of Maritime Boundaries, paragraph
204, 45.
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and Malaysia), but there are gaps with no agreed boundaries where tri-lateral
negotiations would be required to determine the tri-point where the respective
pairs of boundaries intersect.
Figure 8.3 circles the possible tri-points in the northern part of the South
China Sea. The situation is more complicated, however, in the southern part of
the sea where, even if the Spratly islands are given no weight, potential tri-points
are required as follows between:
Singapore, Indonesia and Malaysia;
Indonesia, Malaysia (West) and Vietnam;
Indonesia, Malaysia (East) and Vietnam; and
Brunei, Malaysia and the Philippines.
The situation becomes much more complicated if some of the Spratlys are recognized as potentially generating EEZ and continental shelf claims, and possibly even under the sovereignty of different nations. The number of tri-points
then multiplies with the possible creation of points also where the agreement
of four nations might be required before a full set of maritime boundaries might
be achieved. This remains the case even if the insular features are restricted to
a territorial sea only, or as other authors have suggested, they are restricted to a
500-meter safety zone.68
Alex Elferink has given extensive consideration to the role of third States in
maritime boundary delimitations. After analyzing relevant case law, one of his
conclusions is that courts have limited decisions to an area outside the claims of
the third States leaving a large part of the bilateral boundary undefined.69 In the
South China Sea, these areas could be very large thus highlighting again the difficulty of developing a full set of straight line maritime boundaries in the area.
Need for Effective Regimes in the South China Sea
Douglas Johnston claimed over a decade ago that the nature of maritime
boundaries is affected by two concurrent trends in ocean development and
management.70 The first is the proliferation of extensive zones of national administrative authority under regimes of functional jurisdiction vested in the coastal
State. Such regimes include resource management, marine environmental protection and marine scientific research. The second trend was toward the building of regional or sub-regional regimes of negotiated arrangements designed to
68 Valencia, Van Dyke and Ludwig, Sharing the Resources of the South China Sea, 133.
69 Alex G. Oude Elferink, Third States in Maritime Delimitation Cases: Too big a Role,
Too Small a Role, or Both? in Aldo Chircop, Ted L. McDorman and Susan J. Rolston
(eds.), The Future of Ocean Regime-BuildingEssays in Tribute to Douglas M. Johnston
(Leiden: Martinus Nijhoff Publishers, 2009), 624.
70 Johnston, The Theory and History of Ocean Boundary Making, 227.
the case of the south china sea
219
facilitate cooperation in ocean development and management. This Johnston
saw as reflecting the cooperative ethic of LOSC.
Unfortunately, however, this wishful thinking has not been realized generally,
or in the South China Sea in particular. Attempts to implement the LOSC Part IX
obligations to cooperate in the management of enclosed and semi-enclosed seas
have not achieved the desired outcomes in the Mediterranean and Caribbean
seas, and the experience so far with the East Asian Seas Action Plan steered by
the Coordinating Body on the Seas of East Asia (COBSEA) give few grounds for
optimism that successful outcomes will be achieved.71 The political will to support the Action Plan has not been evident among most participants in COBSEA.
There is still no effective regime in the South China Sea for cooperative marine
management and good order at sea: for the safety and security of shipping; the
preservation, protection and conservation of the marine environment; the exploration and exploitation of marine resources; the prevention of illegal activity at
sea; and the conduct of marine scientific research. This is despite the obligation of
all countries bordering a body of water, such as the South China Sea, to cooperate
in accordance with Part IX of LOSC, to which convention all the littoral countries
are parties.72 The DOC is agreed soft law that also invites the littoral countries to
cooperate on certain marine activities. The DOC was an important confidencebuilding measure, but it is non-binding and falls short of constituting a successful
regime for providing security and cooperative marine management in the South
China Sea.
Despite the pressing and very obvious importance of cooperation in the South
China Sea, very little progress has been made with implementing the required
cooperation. Many of the littoral countries to the South China Sea are still not
party to the relevant international conventions that provide the framework
for good order at sea.73 Furthermore, the demands for effective management
regimes in the South China Sea will become more acute in the future. Volumes
of shipping traffic will continue to increase with greater risks of ship-sourced
71 Alfred Hu Nien-Tsu, Semi-enclosed Troubled Waters: A New Thinking on the Applica
tion of the 1982 UNCLOS Article 123 to the South China Sea, Ocean Development and
International Law, 41/3 (2010): 281314.
72 The Council for Security Cooperation in the Asia Pacific (CSCAP) has produced Guide
lines for Maritime Cooperation in Enclosed and Semi-Enclosed Seas and Similar Sea
Areas of the Asia Pacific, CSCAP Memorandum No. 13, June 2008, http://www.cscap.
org/index.php?page=cscap-memoranda. The guidelines are a set of fundamental, nonbinding principles to guide maritime cooperation in the enclosed and semi-enclosed
seas of the region, and to help develop a common understanding and approach to
maritime issues in the region.
73 Sam Bateman, Joshua Ho and Jane Chan, Good Order at Sea in Southeast AsiaPolicy
Recommendations, (S. Rajaratnam School of International Studies, Singapore), April
2009, Table 5, 29. The lack of adherence to the International Search and Rescue (SAR)
Convention is particularly noteworthy with only China, Indonesia, Singapore and Vietnam, among the littoral countries to the South China Sea, being parties at present.
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marine pollution and shipping accidents. There will be increased pressure on the
resources of the South China Sea, living and non-living, as well as growing concern for the protection and preservation of the seas sensitive eco-systems and
marine biodiversity.74
As Elferink has observed, case law has moved in the opposite direction to
the trend welcomed by Johnston of seeing maritime boundaries as facilitating
ocean development and management. As he notes, instead of an emphasis
on the particularistic of any delimitation, the recent case law has contributed
to the consolidation of legal norms, emphasizing the centrality of equidistance
in the delimitation process.75 However, it could be argued that the cases considered by Elferink involved areas where the geography was less complicated to that
of the South China Sea. A strong case exists for the functionalist approach to the
South China Sea although the claimants are still failing to recognize the merits
of such an approach.
The lack of effective regimes in the South China Sea is due to the several sovereignty disputes over islands and reefs in the sea and the consequent lack of
agreed maritime jurisdictional limits and boundaries. The littoral countries are
committed to a nationalistic approach to their claimed waters and are reluctant
to embark on initiatives that may appear to compromise their sovereignty. They
are still looking for fences in the sea to delimit the limits of their sovereignty and
sovereign rights, and have so far stopped short of effective cooperation or regime
building despite the political framework provided by the DOC. Because so many
issues of managing ocean space are trans-boundary in nature, fences cannot be
established in the sea in the same way as border fences are established on land.
Developing Regimes for the South China Sea
Regimes provide benefits and reduce costs in a way that no single country acting
on its own could achieve.76 They reduce the risks of a tragedy of the commons,77
where in the short term, individual countries might gain but in the longer term,
everyone loses. However, they involve compromises and trade-offs between the
different national interests of individual countries. The perceived shorter-term
74 Yann-Huei Song, The Study of Marine Biodiversity in the South China Sea; Joint Efforts
Made in the SCS Workshop Process, paper delivered at the international workshop on
The South China Sea: Cooperation for Regional Security and Development, Ho Chi
Minh City, November 2010.
75 Elferink, Third States in Maritime Delimitation Cases, 638.
76 Edward L. Miles, Implementation of International Regimes: A Typology in David
Vidas and Willy Ostreng (eds.), Order for the Oceans at the Turn of the Century (The
Hague: Kluwer Law International, 1999), 327.
77 Garrett Hardin, The Tragedy of the Commons, Science 162 (1968), 13 December 1968:
1,2431,248.
the case of the south china sea
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costs of regime participation are often seen as outweighing the longer-term benefits of such participation even though these benefits might greatly outweigh the
costs. For example, littoral countries to the South China Sea appear concerned
that participation in some maritime regimes might involves a loss of sovereignty
and independence, and this appears to outweigh whatever might be the longerterm benefits of regime participation in terms of improved resource management, marine environmental protection, and maritime security.
This attitude reflects the remarkably percipient view of Ken Booth nearly thirty
years ago that:
It may take half a century but unilateralist drives to parcel parts of the ocean will
continue and will be legitimised by the territorialist mood of the international community. As this development unfolds, and as State control intensifies over larger
patches of the sea, greater meaning will be invested in the new boundaries which
are inevitably the outcome of the process. Nations will feel protective and sensitive
indeed patrioticabout these patches of ocean.78
A process of increased nationalisation of the oceans is evident, including in the
South China Sea, with coastal States seeking wider jurisdiction over maritime
space and greater opportunities for ocean resources exploitation. This process
has been fuelled both by LOSC with its introduction of a broader territorial sea
and the EEZ regime and concern for the increased scarcity of resources. Paradoxically, LOSC also encouraged the increased internationalization of the oceans
with its focus on cooperation, including in enclosed and semi-enclosed seas as
set out in LOSC Part IX. This emphasis on the internationalisation of the oceans
has been supported by new and revised international conventions dealing with
shipping, marine safety, pollution prevention, fishing and other transnational
interests in the sea. Perhaps unsurprisingly, some of these conventions have not
been well supported by South China Sea littoral countries because they involve
cooperation, including possibly with allowing activities by other States within
their territorial waters. The assertions of sovereignty and independence in the
maritime domain have become particularly strong in the South China Sea and are
significant obstacles to good governance of the sea.
This drive for nationalisation of the oceans was amply illustrated by the joint
submission by Malaysia and Vietnam in May 2009 to the Commission on the
Limits of the Continental Shelf (CLCS). This was a strongly nationalistic approach
to resource allocation in the South China Sea. It amounted to a zero-sum
claim by these two countries to the seabed resources of the entire southern part
of the China Sea to the exclusion of other interested parties, Brunei, China and
the Philippines.79 It could well be argued that this submission was contrary to the
78 Ken Booth, Law, Force and Diplomacy at Sea (London: Allen and Unwin, 1985), 445.
79 Bateman and Schofield, Outer Shelf Claims in the South China Sea.
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spirit of article 5 of the DOC about self-restraint in the conduct of activities that
could complicate or escalate disputes
There is a need to acknowledge that sovereignty claims in the South China Sea
and hence maritime boundaries will not be resolved in the foreseeable future. For
the reasons discussed, conventional bilateral maritime boundaries are unlikely in
many parts of the sea, and it is not going too far to say that are not just unlikely
but impossible to achieve. The problems discussed above of reaching multilateral
agreement on tri-junctions and resolving which islands are entitled to a full suite
of maritime zones, as well as all the customary difficulties of maritime boundary
negotiations, including domestic political pressures, create a hopelessly intractable situation. A changed mindset among the stakeholders, which focuses on
common interests and cooperation rather than on national sovereignty, differences and disputes, is the most fundamental requirement.
A cooperative management regime is the only solution. The only acceptable
framework for such a regime would appear to be a web of provisional arrangements covering cooperation for different functions and perhaps even with different areas for each function. The functions to be considered might include
development of oil and gas resources, fisheries management, marine safety, law
and order at sea, and preservation and protection of the marine environment.
This would be in line with the functionalist approach to maritime boundary
making as proposed by the late Douglas Johnston.80
None of this is new. Cooperative development and management of the South
China Sea has been the theme of many academic papers over the years. It also
underpinned much of the work of the South China Sea Workshops that have
been hosted by Indonesia since the early 1990s and still continue although they
are currently suffering from a shortage of resources.81 One of the more comprehensive proposals for a cooperative management regime was put forward by
Valencia, Van Dyke and Ludwig in the late 1990s.82 They acknowledged fully the
difficulties of allocating the insular features and maritime space of the South
China Sea on the basis of sovereign jurisdiction and suggested instead the establishment of a multi-purpose regime to manage the living and nonliving resources
and related activities.
80 Douglas M. Johnston, The Theory and History of Ocean Boundary Making (Montreal:
McGill-Queens Press, 1998), Part Three.
81 Clive Schofield, Ian Townsend-Gault, Hasjim Djalal, Ian Storey, Meredith Miller and Tim
Cook, From Disputed Waters to Seas of OpportunityOvercoming Barriers to Maritime Cooperation in East and Southeast Asia, NBR Special Report #30 (Washington:
The National Bureau of Asian Research, July 2011), 26.
82 Valencia, Van Dyke and Ludwig, Sharing the Resources of the South China Sea.
the case of the south china sea
223
Conclusions
Building effective regimes and establishing effective governance of the South
China Sea has been hindered by the efforts of littoral countries to assert their
national dominion over parts of the sea. These attitudes have created extreme
difficulties with negotiating maritime boundaries. Without agreed boundaries,
there is no possibility of achieving good governance of the South China Sea based
on sovereign jurisdiction.
Conventional straight line maritime boundaries will be unachievable in many
parts of the area. As has been noted, many boundaries, or at least their end points
or turning points (tri-points) will require agreement of three, or even more,
countries. Past experience in Asia and other parts of the world shows that this
agreement is very hard to achieve.
It is increasingly necessary to find some other means of managing the South
China Sea and exploiting its resources, which is not based on unilateral jurisdiction and sole ownership of the resources. A cooperative management regime
is required based on a functional approach that exploits the common interests
of claimant countries. The claimant countries must adopt a more cooperative
mindset that recognises the futility of pursuing resource rights and management
regimes on a national basis. This would be in accordance with their obligations
under both the DOC and LOSC Part IX. In addition to the official forums meeting
on the South China Sea, Track Two can provide vital assistance in progressing
this work.83 Rather than establishing new forums, greater support is required for
the Workshop process hosted by Indonesia. It is by supporting this process and
assisting in developing management arrangements for the South China Sea that
non-claimant and extra-regional stakeholders can best contribute to reducing the
tensions that are currently evident.
Without more cooperation, the South China Sea will continue simmering
away as an obstacle to a stable maritime security regime and good order at sea in
Southeast Asia. In the long term, all parties will suffer due to the continued lack
of effective arrangements for resource management, marine scientific research,
marine environmental protection, the safety and security of shipping passing
through the area, and the prevention of illegal activities at sea. Ultimately the
national interest of all parties requires this cooperation.
83 Clive Schofield and Ian Townsend-Gault, Brokering Competition Amidst Competing
Maritime Claims: Preventative Diplomacy in the South China Sea, in Aldo Chircop,
Ted L. McDorman and Susan J. Rolston (eds.), The Future of Ocean Regime-Building
Essays in Tribute to Douglas M. Johnston (Leiden: Martinus Nijhoff Publishers, 2009),
670.
chapter Nine
The South China Sea: Competing Claims and Conflict Situations
Guifang (Julia) Xue*
Introduction
The South China Sea has long been regarded as a major source of tension and
instability in the East Asian region. Over the years, numerous attempts to manage the South China Sea, prevent regional confrontation, and foster cooperation
among concerned States have been recorded, but minimal progress has been
observed. Since 2009, an upsurge in tension has sparked concern that the area
may become a flashpoint with the potential for global consequences. The chapter
examines the underlying issues complicating and intensifying the South China Sea
disputes, and analyses the implications of the ongoing tension for the region.
The chapter first explains the significance of the South China Seas natural
resources, strategic position and international navigation routes, and provides
a portrait of the competing claims. Then the chapter illustrates the intensified
competition triggered by the continental shelf submissions of some claimants,
the involvement of non-regional States, leading particularly to Sino-United States
spats, and unilateral actions and maritime conflicts in disputed areas. This is
followed by an evaluation on Chinas undefined claims in the South China Sea
represented by the commonly known U-shaped line and related issues. Finally,
the paper offers some general considerations for China to take effective steps to
secure its claims and recommendations for all the claimants to reduce the prospects for conflicts and to resolve the South China Sea disputes.
* Director/Professor/PhD, Institute for the Law of the Sea, Ocean University of China, 238
Songling Road, Qingdao, 266100, PR China, Tel: 0086-532-66782330; Fax: 0086-53266781851; Email: juliaxue@ouc.edu.cn.
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The Significance of the South China Sea
The South China Sea is a large semi-enclosed marginal sea with a total area of 3.5
million square kilometers and an average depth of over 2,000 meters.1 It hosts
four groups archipelagoes: Dongsha Islands (Pratas), Zhongsha Islands (Macclesfield Bank), Xisha Islands (Paracels), and Nansha Islands (Spratlys).2 Lying
between Pacific Ocean and Indian Ocean, the South China Sea serves the function of a maritime super highway and vital international passage.3 Indeed, it
is one of the worlds most important and densely used straights for international
navigation.4
The States bordering the South China Sea vary greatly in size, geography, social
and cultural structures, and economic and political systems.5 Many of them have
contested claims to different parts of the South China Sea, particularly islands.6
Of the disputed claims, the status the Spratlys have been the most contentious and resulted in several military clashes in the past decades,7 particularly
between China and Vietnam.8 The widely established EEZ regime has intensified
these claims and made the disputes more complex and demanding to seek for
solutions.
Bordered by the worlds rapidly industrialising countries and growing economies, the South China Sea also functions as a central component of the Southeast Asian region and world economic attraction. These features are therefore of
significance to both regional and global economies. Consequently, the intensive
1 See, J. Song, Great potential for the exploitation of Chinas islands, Ocean Development
and Management (in Chinese), 3 (1996): 5.
2 See, Mark J. Valencia, The South China Sea: Prospects for marine regionalism, Marine
Policy, 2/2 (1978): 88. See also, Jeanette Greenfield, Chinas Practice in the Law of the
Sea, Oxford Monographs in International Law (Oxford; Clarendon Press, 1992), 15167.
3 For discussions see, Choon-Ho Park, Offshore oil development in the China Seas: Some
legal and Territorial issues, in Choon-Ho Park (ed.), East Asia and the Law of the Sea
(Seoul: Seoul University Press, 1983), 83.
4 Ibid.
5 Besides China (including Taiwan), countries bordering the South China Seainclude:
Vietnam, Cambodia, Thailand, Malaysia, Singapore, the Philippines, Brunei Darussalam,
Laos (the only land-locked state), and Indonesia. For a brief account on these states see,
Valencia, The South China Sea: Prospects for marine regionalism, 87.
6 See, Christopher Joyner, The Spratly Islands Dispute: rethinking the interplay of law,
diplomacy, and geo-politics in the South China Sea, International Journal of Marine and
Coastal Law, 13 (1998): 195. See also, Stuart B. Kaye, The Spratly Islands dispute: A legal
background, Maritime Studies, 102 (1998): 1425.
7 Choon-Ho Park, The South China Sea disputes: who owns the islands and the natural
resources? Ocean Development and International Law, 5/1 (1978): 30.
8 For Chinas claims in the South China Sea see, Greg Austin, Chinas Ocean Frontier:
International Law, Military Force and National Development (Sydney: Allen and Unwin,
1998).
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227
ongoing disputes and competition over resources in the South China Sea have
attracted global attention in the past decades.9
Extending across tropical and semi-tropical zones with a typical monsoon climate, the South China Sea has a large and complex marine ecosystem and an
abundant variety of resource,10 attracted coastal States to develop fisheries industry. Among the States bordering the South China Sea, China harvests the largest
quantity of fish and the population of its coastal provinces are heavily reliant on
the fishing grounds of the South China Sea.11
The South China Sea is also understood to be rich in oil and gas. The potential
abundance of such vital resources is one of the most important considerations
underlying the territorial disputes.12 The intensified competition for South China
Sea resources has seen a rise in the number of disputes.13 These disputes, mixed
with overlapping territorial claims, have resulted in numerous clashes.14 These
clashes often result in the loss of property and life.15 As a consequence, the South
China Sea has become a site of tension with the potential for greater conflict. This
has made access to South China Sea waters problematic and dangerous.
The Competing Claims of the South China Sea
The South China Sea draws global attention not only for its strategic location,
geopolitical significance, resource competition, and security considerations, but
also for its multiple sovereignty and maritime jurisdictional claims.16 The sovereignty disputes over the South China Sea insular features started to emerge in
1960s partly due to the development of the international law of the sea regime,
in particular through the four Conventions of 1958, which raised the awareness
9 See, Gao Zighuo, The South China Sea: From conflict to cooperation? Marine Policy,
15/3 (1991): 199209. See also Ji Guoxing, Maritime jurisdiction in the three China Seas:
options for equitable settlement, in D. Kim et al. (eds.), UN Convention on the Law of
the Sea and East Asia, (Seoul: Institute of East and West Studies, 1996): 85139.
10 Joyner, The Spratly Islands Dispute, 194. See also, Park, The South China Sea
disputes, 37.
11 For an overview of Chinas fishing grounds in the South China Sea see, S. Xia, C. Zhao,
and S. Feng, China Fishery Divisions: A Survey and Division on Chinas Fishery Resources
(in Chinese) (Hangzhou: ZhengjiangScience and Technology Publisher, 1987), 16671.
12 See, Gao, The South China Sea: From conflict to cooperation?, 349.
13 Park, The South China Sea disputes, 37.
14 See, Zha Daojiong, Chinas Exploitation of South China Sea Resources: The Case of
Hainan Province 2000, IUJ Research Institute Working Paper: Asia Pacific Series
http://www.iuj.ac.jp/research/wpap015.cfm, 2.
15 See Nguyen Hong Thao, Vietnam and the Code of Conduct for the South China Sea,
Ocean Development and International Law, 32 (2001): 105.
16 For a discussion on the South China Sea dispute see, Marwyn S. Samuels, Contest for
the South China Sea (New York: Methuen, 1982).
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of the bordering states to lay claim over the nearby waters and resources.17 The
stress between relevant States became manifested and reinforced when the United
Nations Convention on the Law of the Sea (LOSC)18 negotiation was initiated in the
1970s,19 leading some South China Sea States started to not only make claims but
also take unilateral actions to control disputed island features.20
Among the numerous territorial disputes evident in the South China Sea, the
Spratlys dispute is probably the most serious to date. The Spratly Islands is a
group of small islands, reefs and atolls, cays, shoals, and sandbars in the South
China Sea. Primarily, these disputes mainly concern the ownership of some midocean islets of the Spratlys, most of which are reefs without much value in themselves. None of the islets had been inhabited historically but in the recent half
century the competing claimants, except Brunei, have built up structures and
garrisoned most of the features under their control.21 When the Constitution for
the Ocean was opened for signature in 1982 and entered into force in 1994, South
China Sea disputes were irrevocably intensified.22
Among the six asserting parties (the claimants), China claims sovereignty
over the four groups of insular featuresan area enclosed by a U-shaped Line
based on discovery, historical usage and effective occupation and control.23
China controls the Paracels and seven features of Spratlys.24 The claims of Chinese Taipei are similar to those of China based upon the same principles. Chinese
Taipei controls the Pratas group, the largest archipelago in the South China Sea,
and Taiping Island (Itu Aba), the largest island in the Spratlys.25 The Chinese
claims have been challenged by other claimants and intensified since the advent
of the EEZ and continental shelf regimes under the LOSC.
17 The Convention on the Territorial Sea and Contiguous Zone, the Convention on the
Continental Shelf, the Convention on the High Seas and the Convention on Fishing and
Conservation of the Living Resources of the High Sea. Collectively these Conventions
are often termed the Geneva Conventions.
18 United Nations Convention on the Law of the Sea (LOSC), opened for signature 10
December 1982, entered into force 16 November 1994, 1833 UNTS 397.
19 This is reflected from national legislations, See UN publication Legislative Series:
National Legislation and Treaties Relating to the Law of the Sea, United Nations, (New
York: United Nations, 1970; 1974; 1978; and 1980).
20 Samuels, Contest for the South China Sea, 7593.
21 See, Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the resources of
the South China Sea (Honolulu: University of Hawaii Press, 1999), 1740.
22 See supra note 19.
23 For Chinas official position to the South China Sea islands see, Jurisprudential
Evidence to Support Chinas Sovereignty over the Nansha Islands, http://www.fmprc
.gov.cn/eng/topics/3754/t19234.htm 2000.
24 These are: Chigua Jiao (Johnson Reef), Huanyang Jiao (Cuarteron Reef), Yongshu
Jiao (Fiery Cross Reef), Zhubi Jiao (Subi Reef), Meiji Jiao (Mischief Reef), DongmenJiao
(Hughes Reef), Nanxun Jiao (Gaven Reef) http://www.spratlys.org/gallery/#pla.
25 Ibid.
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229
China and Vietnam have disputed claims over both the Paracels (Hoang Sa
in Vietnamese) and Spratlys (Truong Sa in Vietnamese).26 Although the area
claimed by Vietnam has never been clearly defined, Vietnam insists that it has
discovered and actively ruled over both island groups since the 17th Century,
and controls 21 features in the later.27 Vietnam hotly disputes Chinas historical
account, maintains that China never claimed sovereignty over those islands until
1940s, though China augues that Vietnam officially recognised the Chinese claim
to the four archipelagos when China announced the Declaration on its territorial
seas in 1958.28
The Philippines maintains separate claims to the Spratlys features within the
area known as the Kalayaan Island Group (KIG), based on discovery, occupation and geo-proximity. The Philippines occupies eight features within the KIG.29
With this claim, it has clearly defined coordinates, as well as the explorations
of a Philippine explorer in 1956. The Philippines argues that the islands were
not part of the Spratly Islands, and not belonged to anybody and were open to
claim.30 Similarly, the Philippines has claimed the Scarborough Shoal (Panatag
Shoal or Huangyan Island) under the principles of terra nullius and EEZ, while
China defended strongly based on its discovery in the 13th century by Chinese
fishermen.31
Malaysia lays its claim over parts of the Spratly islands and reefs also on geoproximity and continental shelf principle with clear defined coordinates. Malaysia controls eight features, as they fall within their continental shelf.32
26 Some Chinese scholars prove that the Vietnamese Truong Sa and Hoang Sa were not
Spratly and Paracel, but some islands along its coast. See, Han Zhenhua, Collections of
the Investigation on Historical and Geographical Documentations of the South (China)
Sea Islands (in Chinese) (Beijing: Oriental Press, 1981) 182; Li Jinming, Vietnamese
claimed TruongSa/HoangSas were not Chinas Nansha/Xisha Islands, (in Chinese)
http://www.spratlys.org/contents/history/6.htm.
27 For discussions on the South China Sea dispute, see Valencia, The South China Sea:
Prospects for marine regionalism, 20-9.
28 The Democratic Republic of Vietnam Government filed an official Note signed by Prime
Minister Pham Van Dong on 14 September 1958 and agreed to the terms of Chinas 1958
Declaration about China's territorial sea claim in the South China Sea (called East
Sea by Vietnam). For a different interpretation, see http://www.eyedrd.org/2011/07/
vietnam-recognizes-prime-minister-pham-van-dongs-diplomatic-note-as-a-politicaldeclaration-and-recognizes-the-legality-and-legitimacy-of-republic-of-south-vietnam
.html.
29 See, Valencia, The South China Sea: Prospects for marine regionalism, 34.
30 For terra nullius principles, see, for example, Ian Brownlie, Principles of Public
International Law, 2nd edition (Oxford: Oxford University Press, 2003), 123 and 168.
31 See, Daniel Wagner, China, the Philippines, and the Scarborough Shoal, Huff Post
World, 20 May 2012. available at: http://www.huffingtonpost.com/daniel-wagner/
china-the-philippines-and_b_1531623.html
32 Ibid., 36
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Brunei claims no islands but its continental shelf and EEZ claims extend into
the disputed area. Bruneis maritime claims include Louisa Reef.33
The fact that the competing claims of several States overlap makes the situation more difficult than relatively straightforward bilateral disputes. The issue is
further complicated by the expansion of the dispute in recent years to include
boundary delimitation, entitlement of islands and rocks, navigational freedoms,
and military activities involving States from outside the region. Besides a host
of disputes and competition, the South China Seais presently facing problemsof
security challenges and dreadful conditions of State relations. It is difficult to
reach any consensus with such a complex situation. Accordingly, no conclusive
answer is readily available.
Conflict Situations of the South China Sea Disputes
The South China Sea claimants can rarely find agreement on any issue relating
to the archipelagos, especially in the latter half of the past century. Negotiations remain deadlocked due to their divergent claims, including even what to
call the disputed islets. Despite little progress in resolving contradictory claims,
the regional seascape has witnessed several additional features since the start
of the new century.34 Competition has been intensified due to the factors
including the various submissions of claims in relation to the outer limit of the
continental shelf, the resulting barrage of protests and assertions via diplomatic
notes, unilateral enforcement actions resulting in sea conflicts, and the involvement of non-regional States. These factors have put extra pressure on international relations among the South China Sea States.
Intensified Disputes Activated by Submissions Relating to Extended
Continental Shelf Limits
In the year 2009, several major developments stirred up renewed controversyin
the South China Sea. One of the key impetuses for the seascape change was the
final rush towards the 13 May 2009 deadline for the submission of information on the outer limits of the continental shelf where they exceed 200 nautical miles from shore, that is, with respect to areas of extended continental shelf
(ECS), to the United Nations Commission on the Limits of the Continental
33 Ibid., 38.
34 H. T. Nguyen, South China SeaThree Stages, Four Challenges, Two Regional
Approaches and one Belief, in Tran Truong Thuy (ed.), The South China Sea: towards
a Region of Peace, Security and Cooperation (Hanoi: Diplomatic Academy of Vietnam,
2010), 269.
the south china sea
231
Shelf (CLCS).35 On 6 May 2009, Malaysia and Vietnam submitted jointly a proposal in the southern part of the South China Sea (Joint Submission).36 Vietnam also lodged a separate submission the following day in the area north of
that covered by its joint submission with Malaysia.37 The two Submissions have
served to highlight existing disputes and appear likely to add an extra dimension to the already intensified disputes and resulting in escalated situation. They
attracted immediate attention from China, the Philippines, and States concerned,
and aroused a sequence of protests in the form of Note Verbales contesting the
various submissions and related assertions.38 As a result, numerous assertions,
responses, and protests from nations throughout the South China Sea ensued in
the form of diplomatic notes.
On 7 May 2009, China objected to the Malaysian and Vietnamese submissions
by submitting two Note Verbales (CML/17/2009 and CML/18/2009) to the CLCS.39
China asserts that it possessed indisputable sovereignty over the islands in the
[South China Sea] and the adjacent waters, and enjoy[ed] sovereign rights and
jurisdiction over the relevant waters as well as the seabed and subsoil.40 Further, China claimed that the Malaysian and Vietnamese submissions seriously
infringed Chinas sovereignty, sovereign rights[,] and jurisdiction in the [South
China Sea], and requested that the CLCS not consider the two submissions.41
The Philippines had a similar reaction to China to the Malaysian and Vietnamese submissions. On 4 August 2009, it filed two Note Verbales (000818 and
000819) with CLCS to protest the submissions.42 The Philippines stated that both
submissions la[id] claim on areas that are disputed...because they overlap with
[those] of the Philippines.43 The Philippines also mentioned its historical claim
to North Borneo (the present day East Malaysian State of Sabah).
It is worth mentioning that with the two 7 May 2009 notes, China attached
its U-Shaped Line map (the Map) to specify the boundary of its claim in the
35 This deadline was set according to article 4 of Annex II of the LOSC and a Decision
adopted by the Meeting of States Parties (SPLOS/72), See CLCS website http://www
.un.org/Depts/los/clcs_new/issues_ten_years.htm.
36 The Executive Summary http://www.un.org/Depts/los/clcs_new/submissions_files/
submission_mysvnm_33_2009.htm.
37 The Executive Summary http://www.un.org/Depts/los/clcs_new/submissions_files/
vnm37_09/vnm2009n_executive summary.pdf.
38 For copies of these note verbales see, http://www.un.org/Depts/los/clcs_new/
submissions_files/submission_mysvnm_33_ 2009.htm.
39 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_
mys_vnm.pdf.
40 Paragraph 2, the Note Verbales CML/17/2009 and CML/18/2009.
41 Paragraph 3, the Note Verbales CML/17/2009 and CML/18/2009.
42 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/clcs_33_2009_
los_phl.pdf.
43 Paragraph 2, the Note Verbales 000818 and 000819.
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South China Sea. These two Chinese notes, particularly the attached Map, have
generated additional concerns and protests. Some South China Sea States, such as
Vietnam, Malaysia and Indonesia have filed diplomatic notes to protest Chinas
claims.
Vietnam quickly rejected Chinas claim via a Note Verbale (No 86/HC-2009)
submitted to CLCS on 8 May 2009 in response to China 7 May 2009 notes.44 In
defending its earlier submissions as legitimate undertakings, Vietnam reaffirmed
its claim concerning its indisputable sovereignty over the Hoang Sa (Paracels)
and Truong Sa (Spratlys) Archipelagoes.45 It further declared that Chinas claim
over the islands and adjacent waters in the South China Sea as manifested in the
map has no legal, historical or factual basis.
Vietnam also responded to the Philippiness Notes 00818 and 000819 in its 18
August Note No. 240 HC-2009.46 Vietnam stated that its submissions were legitimate undertakings consistent with the LOSC and without prejudice to boundary
delimitations with relevant States.47 It also took the opportunity to reaffirm its
consistent position about its indisputable sovereignty over the Hoang Sa (Paracels) and Troung Sa (Spratlys) archipelagos.48
On 20 May 2009, Malaysia submitted a Note Verbale (HA 24/09) to reply to
Chinas CML/17/2009 Note.49 The Malaysian Note stated its joint submission was
a legitimate undertaking, and was made without prejudice to boundary delimitation or the position of maritime dispute. Furthermore, Malaysia noted that it
had informed China of its position prior to the submission, but did not mention
if China had been invited to join the Joint Submission.50
On 21 August 2009, Malaysia also filed a Note (HA 41/09) in response to the
Philippines note No. 000819.51 In addition to stating that its undertaking was
legitimate, Malaysia pointed out that it had informed the Philippines of its position prior to the submission, and that both Vietnam and Malaysia had proposed
that the Philippines join them in that Submission. Malaysia also firmly denied the
Philippines claim to North Borneo.52
44 See, http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_chn_
2009re_mys_vnm_e.pdf.
45 Paragraphs 2 and 3, the Note Verbale No 86/HC-2009.
46 See, http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_re_
phl_2009re_mys_vnm_e.pdf.
47 See, paragraphs 2 and 3, the Note Verbale No. 240 HC-2009.
48 See, ibid., paragraph 4.
49 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_re_
chn_2009re_mys_vnm_e.pdf.
50 See paragraphs 2 and 3, the Note Verbale HA 24/09.
51 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_re_
phl_2009re_mys_vnm_e.pdf.
52 See, paragraphs 25, the Note Verbale HA 41/09. For discussions
the south china sea
233
Although Indonesia does not claim sovereignty over the disputed Spratlys,
it submitted to CLCS a Note (No. 480/POL-703/VII/10) on 8 July 2010 expressing its concerns about Chinas U-Shaped Line.53 The note questions the Chinese
maps consistency with international law regarding its legal basis, the method of
drawing, and the status of those separated dotted-lines.54 The note regards those
separated dotted lines as maritime zones of various disputed small features in
the waters of the South China Sea, which might be a fresh thought of the Chinese
map. The Indonesian note also expressed concern as to whether China would
adopt the same position it openly expressed regarding the Okinitorishima rocks
to the other small insular features in South China Sea.55 Indonesia stated that the
remote or very small features in the South China Sea do not deserve EEZ or continental shelf of their own. Indonesia argued that allowing these small features
to generate zones would concerns the fundamental principles of the Convention
and encroaches on the legitimate interest of the global community.56
Almost ten months after the Indonesian Note, the Philippines filed a diplomatic note 000228 to the CLCS to protest Chinas U-Shaped Line.57 This protest
was lodged on 5 April 2011, nearly two years after China submitted its map to the
CLCS. More importantly, this note relates to a much earlier argument between
the two.58
In February 2009, China and the Philippines sparred over the sovereignty
and jurisdiction over Huangyan Island (Scarborough Shoal, also referred to as
Bajo de Masinloc by the Philippines) as well as some islands and submerged reefs
of the Nansha Islands (that is, the Spratly Islands or Kalayaan Island Group, KIG)
in the South China Sea. Tensions rose when the Philippines enacted its Archipelagic Baseline Act on 11 March 2009, which amended its baselines law to prepare
for its partial ECS submission.59 The Act incorporates the KIG as the territories of
the Philippines based on the island regime under article 121 of the LOSC.
53 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_
mys_vnm_e.pdf.
54 See, paragraph 2, the Note Verbale No. 480/POL-703/VII/10.
55 See, ibid., paragraph 2 a. b. and 3.
56 See, ibid., paragraph 3.
57 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/
clcs_33_2009_los_phl.pdf.
58 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_
chn_2011.pdf.
59 Republic Act No. 9522: An Act to Amend Certain Provisions of Republic Act No. 3046,
as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the
Philippines, and for Other Purposes, http://www.un.org/Depts/los/LEGISLATION
ANDTREATIES/PDFFILES/mzn_s/mzn69.pdf.
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guifang (julia) xue
The Republic Act was vigorously protested by Chinas Note Verbale
(CML/12/2009) of 13 April 2009.60 China argued that Huangyan Island and Nansha Islands have been part of the territory of China since ancient time and China
has indisputable sovereignty over the islands and the surrounding areas.61
The Philippines did not respond to Chinas reaction regarding the matter until
5 April 2011 when it submitted a Note Verbale to protest Chinas claim. The note
is quite lengthy for its nature, and confronts totally Chinas claim to the South
China Sea islands as well as other geological features, their adjacent waters and
relevant waters, seabed and subsoil.62 Among their challenges, the Philippines
made it clear that KIG constitutes an integral part of the Philippines, and it
has sovereignty and jurisdiction over its geological features.63 The Philippines
also argues that it exercises sovereignty and jurisdiction over the waters around
or adjacent to each geological feature in the KIG under the international law
principle that land dominates the sea. The Philippines argued that the extent of
the waters that are adjacent to the relevant geological features are definite and
determinable under UNCLOS, specifically under article 121 (Regime of Islands).64
The Philippines argued further that because waters adjacent to the geological
features in the KIG are definite and subject to legal and technical measurement,
Chinas claims on the relevant waters as well as the seabed and subsoil outside of the geological features have no basis under international law, specifically
UNCLOS.65
China promptly replied to this protest on 14 April 2011 by submitting a Note
Verbale (CML/8/2011) to the CLCS.66 In the Note, China branded the contents of
the Philippine Note as totally unacceptable to Chinas indisputable sovereignty
over the islands in the South China Sea and the adjacent water.67 Moreover,
China has accused that since the 1970s, the Philippines started to invade and
occupy some islands and reefs of Chinas Nansha Islands and made relevant territorial claims, to which China objects strongly.68 China went further stressing
that under the LOSC, Chinas Nansha Islands is fully entitled to Territorial Sea,
EEZ and Continental Shelf.
60 The English version of the Note Verbale of China http://www.un.org/Depts/los/LEGIS
LATIONANDTREATIES/ PDFFILES/DEPOSIT/communicationsredeposit/mzn69_2009_
chn.pdf.
61 Paragraph 2, Note Verbale CML/12/2009.
62 The Philippines Note Verbale 000228.
63 Ibid., paragraph 4.
64 Ibid.
65 Ibid.
66 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_
phl_e.pdf.
67 Paragraph 2, Note Verbale CML/8/2011.
68 Ibid., paragraph 3.
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235
In addition to asserting sovereignty and jurisdiction in the South China Sea,
China contended that in the series of international treaties that define the limits of the territory of the Philippines and its domestic legislation prior to 1970s,
the Philippines had never made any claims to Nansha Islands or any of its
components.69 China also clarified that the so-called KIG claimed by the Philippines is part of Chinas Nansha Islands and this fact has been given publicity
since the 1930s.70
Refuting the Philippines assertion of sovereignty and jurisdiction over the
waters around or adjacent to the relevant geological features in the KIG, China
affirms that the Philippines cannot invoke such illegal occupation to support its
territorial claims under the legal doctrine, ex injuria jus non oritur, or a right
cannot rise from a wrong.71 China asserted that by virtue of the legal principle
of la terre domine la mer or the land dominates the sea, coastal States EEZ
and Continental Shelf claims shall not infringe upon the territorial sovereignty
of other States.72 In addition, China argued that under the LOSC and its national
laws, Chinas Nansha Islands is fully entitled to Territorial Sea, EEZ and Continental Shelf.73
This exchange between China and the Philippines regarding South China Sea
islands generated a subsequent reaction from Vietnam. Vietnam submitted a new
Note (FF/HC-2011) on 3 May 2011 in response to the Philippines Note No. 000228
and Chinese Note CML/8/2011.74 The note did not raise any new issue except reiterating its claim to the Hoang Sa (Paracel) and Truong Sa (Spratly) Archipelagoes
in identical language.75
In summation, the submissions relating to the outer limits of the continental
shelf in disputed areas of the South China Sea have caused a series of strong
protests through the exchange of diplomatic notes. According to the Rules of
Procedure of the Commission, the CLCS is not likely to consider either the joint
submission of Malaysia and Vietnam or the submission of Vietnam:76
69 Ibid., paragraph 3.
70 Ibid., paragraphs 3 and 4.
71 Ibid., paragraph 3.
72 Ibid.
73 Ibid., paragraph 4.
74 http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_2011_
re_phlchn.pdf.
75 Paragraph 2, Note FF/HC-2011.
76 Article 5(a), Annex I, the Rules of Procedure of the Commission on the Limits of the
Continental Shelf http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/309/23/PDF/
N0830923.pdf?OpenElement.
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guifang (julia) xue
While the submissions and accompanying objections are very complex, the practical effect of these submissions has the potential to have a significant impact on the
[South China Sea] disputes.77
The diplomatic notes submitted to the CLCS not only function as assertive actions
to form the legal basis for their respective position, solidify their claims, but also
result in several of the claimants bringing their claims into conformity with their
rights and obligations under UNCLOS.78 However, the war of diplomatic notes
also reveals the complexity of the South China Sea disputes and difficulties in
addressing them.
Complicated Situation Generated by Sino-United States Spats
In addition to those diplomatic protests, the South China Sea has witnessed the
escalation of unilateral actions and maritime conflicts since 2009 involving not
only States in the region, but also the most influential power outside the region.
With the Impeccable Incident between China and the United States on 9 March
2009, together with a serial of spats between the two states, the complexity of the
South China Sea disputes and difficulty for resolving them has amplified.79
The United States generally takes a non-declaration and non-intervention policy of neutrality. The United States Navy Admiral Mike Mullen, then Chairman
of the Joint Chiefs of Staff, confirmed during his visit to Beijing in July 2010 that
the United States would maintain its presence in the South China Sea but would
show no prejudice toward any side involved in the territorial dispute there.80
However, the United States has made it clear that the freedom of navigation in
the South China Sea concerns its national interest.81 On 23 July 2010, the then
United States Secretary of State Hillary Clinton made a speech at the 17th ASEAN
Regional Forum (ARF) that the disputes over the highly sensitive South China
77 Robert Beckman, South China Sea: Worsening Dispute or Growing Clarity in Claims?
RSIS Commentaries, No. 90/2010 (Singapore: S Rajaratnam School of International
Studies, 2010).
78 For a detailed discussion on this account, see Robert C. Beckman & Tara Davenport,
CLCS submissions and claims in the South China Sea, paper delivered at the Second
International Workshop on the South China Sea, Ho Chi Minh, Vietnam, 1112 November, 2010, http://nghiencuubiendong.vn/en/.
79 For a fuller account on this, see Nong Hong, US-China Perception Gap on the Messy
South China Sea Dispute Assessment of Post2009 Developments, http://wenku.baidu.
com/view/bb9e38503c1ec5da50e2709f.html.
80 Li Xiaokun, US wont take sides in South China Sea, China Daily, 11 July 2011, http://
www.chinadaily.com.cn/usa/us/ 2011-07/11/content_12872901.htm
81 Toshi Yoshihara and James R. Holmes, Can China Defend a Core Interest in the South
China Sea? The Washington Quarterly, 34/2 (2010): 4559 http://twq.com/11spring/
docs/11spring_Yoshihara_Holmes.pdf.
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237
Sea were a leading diplomatic priority and pivotal to regional security.82 She
reiterated the United States views on national interest in freedom of navigation
in the South China Sea, open access to South China Sea as Asias maritime commons, and respect for international law.83 Although not announced as such, the
Clinton speech suggested that the United States had a clear interest in the South
China Sea and represented a marked departure in some respects from the policy
of detached ambiguity. This event contributed to increasing concerns in Beijing
to this signal that United States would change its neutral position on the South
China Sea dispute and back other claimants, especially Vietnam. This backdrop
also marked the turning point of South China Sea issues from hypothetical discussions on whether it is one of Chinas core interests into a diplomatic subject
matter of Asia-pacific region.84
The different views between China and the United States on freedom of navigation (FON), military activities and EEZ enforcement has also attributed to the
upsurge in tension. The United States supports the operations for FON rights in
international waters and air space in the South China Sea.85 China agrees and
believes that FON in the South China Sea has never been affected by the disputes.86 However, according to the United States view, FON is much broader than
transiting the waters, but includes other lawful uses of the sea, such as military
activities,87 counter-piracy operations, counter-proliferation operations, and so
forth.88
The United States term of FON and its assertion to the South China Sea
has been challenged by Chinese military and scholars.89 For example, a highranking Chinese military officer has responded to Washingtons demand for more
involvement in the SCS to ensure navigation, by saying that freedom of navigation is never a problem in that region.90 Wang Hanling, a specialist in maritime
82 Ernest Z. Bower, Hillary ClintonA Secretary of State Fluent in ASEAN, Centre for
Strategic and International Studies, July 20, 2010, http://csis.org/publication/hillaryclinton-secretary-state-fluent-asean.
83 For details, see Carlyle A. Thayer, Recent Developments in the South China Sea:
Grounds for Cautious Optimism? The RSIS Working Paper, No. 220 (Singapore: S
Rajaratnam School of International Studies, 2010) 68.
84 See ibid., 69.
85 US Senate Resolution: S. Res. 217, 27 June 2011.
86 China reiterates freedom of navigation in South China Sea, China Daily, 7 July 2011,
http://www.chinadaily.com.cn/china/2011-07/07/content_12858180.htm.
87 For discussion on military activities and freedom of the seas http://www.mofa.go.jp/
nofaj/press/wakaru/topics.vol61/index.html.
88 Commander Jonathan G. Odom, U. S. Interests in the South China Sea, paper delivered
at the Third International Workshop on the South China Sea: Cooperation for Regional
Security and Development, November 2011, Hanoi, Vietnam.
89 Li, US wont take sides in South China Sea.
90 Li Xiaokun, Navigation in South China Sea not a problem, China Daily, 25 October
2010, http://english.peopledaily.com.cn/90001/90776/90786/7175486.html.
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guifang (julia) xue
law at the Chinese Academy of Social Sciences, observed that China has never
interfered in the normal activities of any ship crossing the South China Sea or
any aircraft flying over it, especially those for commercial use: What the US calls
national interest is not freedom of navigation but rather its presence in the Western Pacific, or military superiority and political influence, to be more specific.91
Wangs comments represent the views of the majority Chinese scholars and it is
arguable that the United States has turned a legal ambiguity of the LOSC into a
U.S.-defends-freedom-of-navigation-in-the-South-China-Sea story and makes it
a political excuse for its engagement in the South China Sea.
Ironically, the LOSC, which intended to resolve maritime disputes, may have
exacerbated them due to the rush of extending maritime zones by coastal States
resulting in numerous overlapping claims. Regarding military activities, the LOSC
does not clearly provide for military uses by non-coastal States in other States
EEZ.92 The United States holds a general understanding that the LOSC has nothing to do with any limitation to military activities in the EEZ as far as they are
compatible with the reservation of the seas for peaceful purposes.93 China, meanwhile, regards that coastal States may take control in their EEZs, and has adopted
domestic measures to control the activities of other States in its EEZ in recent
years, resulting in some debate about their legality.94 According to the LOSC, the
EEZ is an area of shared rights and responsibilities between coastal States and
foreign States.95 China holds the view that a coastal State is entitled to control
its EEZ as the LOSC provides.96 The EEZ is subject to a special regime, and it is a
zone which partakes of some of the characteristics of both territorial sea and high
seas regimes but belong to neither.97 EEZ is a relatively new regime in international law, and its precise nature and the full conceptualisation of coastal States
and other States rights and responsibilities therein is still evolving.98
91 Nong Hong, Wenran Jiang, Chinese Perceptions of U.S. Engagement in the South
China Sea, China Brief, 11/12 (2011): 7.
92 Myron Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary, Volume V (Dordrecht: Martinus Nijhoff Publishers, 1989), 1534.
93 Myron Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary, Volume III (Dordrecht: Martinus Nijhoff Publishers, 1995), 89. See LOSC, article
301.
94 See, Mark J. Valencia, Summary of the Bali dialogue, Marine Policy, 28/1 (2004):
712.
95 See, LOSC, article 58.
96 China is of the view that the use of the EEZ for non-peaceful purposes such as military
and electronic intelligence gathering is illegal. See Cheng Xizhong, A Chinese perspective on Operational Modalities, Marine Policy, 28/1 (2004): 257.
97 See, United Nations, The Law of the Sea: National Legislation on the Exclusive Economic
Zone, the Economic Zone and the Exclusive Fishery Zone (New York: United Nations,
1986), 13.
98 For a summary of States EEZ legislation and practice, see UN, The Law of the Sea: Practice of States at the Time of Entry into Force of the United Nations Convention on the
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239
In the past, the different views have resulted in several potentially serious incidents involvingUnited States air and naval reconnaissance in Chinas EEZ. Major
incidents include the March 2001 confrontation between the United States Navy
survey vessel Bowditch and a Chinese frigate, the April 2001 collision between a
United States EP3 surveillance plane and a Chinese jet fighter and the clash on 9
March 2009 between Chinese vessels and U.S. naval ship Impeccable in Chinas
EEZ.99 These incidents have increased the tensions between China and the U.S.
and consequently attracted more attention to the South China Sea disputes.100 As
such, it is arguable to say the South China Sea could be an essential factor for
determining the future course of the United States-China relationship that may
determine if the present century is more peaceful than the one that preceded it.
In view of these differences and at sea conflicts from time to time, it is highly
desirable but rather difficult for the official consultations to seek for aUnited
States-China modus vivendi. Maybe the two could seek to reach agreement on
common interpretation of some of the key provisions governing navigational
rights and freedoms to remove much of the uncertainty.
Contested Scenarios Caused by at Sea Conflicts
In addition to the contested scenarios between China and the United States, the
South China Sea has also witnessed a series of at sea conflicts caused by the unilateral actions some claimants, this is particularly the case between China and
Vietnam and Philippines in 2011.
China has long been visualized in enhancing its naval forces and increased its
enforcement capacity.101 Chinas fisheries law and policy implemented to deal
with depletion of fisheries resources have also caused concerns in the South
China Sea.102 Specifically, Chinas annual fishing ban has been under constant
challenge in the South China Sea. Despite the fact that it applies mainly to Chinas
Law of the Sea, (New York: United Nations, 1994), 913. See also, Mark Valencia, The
Regime of the Exclusive Economic Zone: Issues and Responses (A Report of the Tokyo
Meeting) (Honolulu: EastWest Center, 2003), http://www.EastWestCenter.org.
99 Hong and Jiang, Chinese Perceptions of U.S. Engagement in the South China Sea, 8.
100 Military exercise should be subject to LOSC, article 58(3).
101 Thayer, Recent Developments in the South China Sea: Grounds for Cautious Optimism? 159.
102 Chinas fisheries management in the South China Sea is basically follow the same rules
as that of the Yellow Sea and the East China Sea. the Annual Fishing Ban has been
practiced since 1995 to the Yellow Sea and East China Sea and since 1999 to the northern section (north of 12N) of the South China Seato close designated fishing grounds
for specified periods (around 23 months) to allow fish to grow and spawn without
disturbance of fishing activities. For discussions, see Guifang Xue, China and International Fisheries Law and Policy (Leiden: Martinus Nijhoff Publishers, 2005), 1226.
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guifang (julia) xue
traditional fishing grounds above 12 North longitude, it has long been a problem
for its maritime neighbours, particularly Vietnam.103
China and Vietnam share both land and maritime boundaries and have
engaged in a longstanding dispute over both boundaries.104 The two governments
finalised agreement on the delimitation and demarcation of their land boundary
in 1999, both sides finally put to rest their centuries-old border issue.105 Their
maritime boundary extends seaward from the termination of the land boundary
into the Gulf of Tonkin and out to the South China Sea.106 Based on the LOSC
framework, the two governments settled their maritime boundary in the Gulf
of Tonkin on 25 December 2000.107 However, China and Vietnam are the most
vocal of the claimant States regarding their sovereignty claims over the South
China Sea archipelagos.108 The competing claims have affected and complicated
their bilateral relations.109 Over the years, the two have involved in various types
of disputes and at sea conflicts involving fishing vessels and maritime surveillance ships.110
Incidents at sea involving vessel clashes between the two States have become
regular occurrences, and in 2010 six incidents occurred between China and Vietnamese mostly regarding fishing vessels.111 On 27 May and 9 June 2011, the clashes
103 For information see, Zha, Chinas Exploitation of South China Sea Resources: The
Case of Hainan Province 2000.
104 See, Mark Valencia and Jon van Dyke, Vietnams national interests and the Law of the
Sea, Ocean Development and International Law, 25 (1994): 217250, 217; Zou Keyuan,
Maritime Boundary Delimitation in the Gulf of Tonkin, Ocean Development and
International Law, 30 (1999): 248.
105 The Sino-Vietnamese Land Border Agreement was signed on 30 December 1999 and
came into effect on 6 July 2000, http://www/fmprc.gov.cn/wjb/zzjg (2 January 2012).
106 The Gulf of Tonkin is known in Chinese as the Beibu Wan and in Vietnamese as the
Bac Bo Gulf. For discussions, see Zou, Maritime Boundary Delimitation in the Gulf of
Tonkin, 241.
107 For details see, Guifang Xue, Improved Fisheries Cooperation: Sino-Vietnamese Fisheries Agreement for the Gulf of Tonkin, The International Journal of Marine and
Coastal Law, 21/2 (2006): 21734.
108 See, J. Li, The boundary dispute between China and France and the boundary delimitation for the Gulf of Tonkin, Studies on Issues of the South China Sea (in Chinese) 2,
102 (2000) 7689. See also, J. Li, Disputes over the islands and boundary of the South
China Sea and international sea laws, South China Sea Studies and Development (in
Chinese) 34 (1998) 5.
109 See, Hungdah Chiu and Choon-Ho Park, Legal status of the Paracel and Spratly
Islands, in Choon-Ho Park and Jae Kyu Park, (eds.), The Law of the Sea: Problems
from the East Asian Perspective: Proceedings of Two Workshops of the Law of the Sea
Institute (Honolulu: University of Hawaii Press, 1984), 45681.
110 See, Ji, Maritime jurisdiction in the three China Seas: options for equitable settlement, 99103.
111 Thayer, Recent Developments in the South China Sea: Grounds for Cautious Optimism?, 245.
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241
occurred between the two in the disputed waters. where, according to Vietnam,
its exploration cables of an oil survey ship were cut.112 China blamed Vietnamese
armed ships chased away its fishing boat operating in Chinese waters,113 which was
gravely violating its sovereignty and warned it to stop all invasive activities.114
The two also argues about violation of sovereign rights and resource jurisdiction
and inconsistency to the LOSC and ASEAN DOC. After the incidents, Vietnam
continued its exploration activities with warships to escort survey vessels to protect investors.115
With these unfolding incidents, both Vietnam and China have responded with
renewed determination to assert their respective sovereignty claims.116 In June
2011, Vietnam held live-fire exercises in the South China Sea amid high tensions
with China over disputed waters. Chinese state media denounced the exercises as
a military show of force to defy Beijing. Vietnam also offers its deep-water port in
Cam Ranh Bay to foreign navies to help secure the regions shipping lanes.117
China and the Philippines have also maintained a certain level of conflict,
manifesting itself in regard to gas exploration and survey ship confrontations.
The Reed Bank Incidents serves as a good example. The Reed Bank is part of the
KIG and is claimed by both China and Vietnam. On 12 March 2011, two Chinese
patrol vessels approached a Philippine survey ship conducting a seismic survey
near Reed Bank and ordered it to cease its activities because the area was under
Chinese jurisdiction.118 In response, the Philippine military deployed a warplane
and two coastguard vessels to escort the survey ship until its survey activities
had been completed.119
Following the incident, the Philippines undertook a number of measures
including strengthening its armed forces presence in the Spratlys, conducting unilateral actions to enhance its claim in the South China Sea, and protesting Chinas
112 Vietnam Says Chinese Boat Harassed Survey Ship; China Disputes, Bloomberg News,
9 June 2011, http://www.businessweek.com/news/2011-06-09/vietnam-says-chineseboat-harassed-survey-ship-china-disputes.html. See also, Hong and Jiang, Chinese
Perceptions of U.S. Engagement in the South China Sea, 7.
113 The incident depicted by YouTube video: a Vietnamese Marine Police patrol vessel
appeared to collide with and then attempt to shoulder away a Chinese research vessel. See, Sam Bateman, Ensuring Safety at Sea: The Southern Ocean and the South
China Sea, RSIS Commentaries, No. 189/2011 (Singapore: S Rajaratnam School of International Studies, 2011).
114 Hong and Jiang, Chinese Perceptions of U.S. Engagement in the South China Sea, 7.
115 Bloomberg News, Vietnam Says Chinese Boat Harassed Survey Ship; China Disputes.
116 Thayer, Recent Developments in the South China Sea: Grounds for Cautious
Optimism?, 26.
117 For more details see, http://en.wikipedia.org/wiki/Cam_Ranh_Bay.
118 Ian Storey, China and the Philippines: Implications of the Reed Bank Incident, China
Brief, 11/8 (2011).
119 Ibid.
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sovereignty claims in the South China Sea.120 The Philippines also strengthened
air force presence in KIG by upgrading its military airfield, observation plane, and
vessels to escort survey ships.
In May 2011, the Philippines removed Chinas markers and construction material from Boxhall Reef, Amy Douglas Bank and Reed Bank.121 In June 2011 the
Philippines announced to rename the South China Seaas the West Philippine
Sea.122 Additionally, Philippines lawmakers visited Pagasa (Hope) Island, the
largest Filipino-occupied feature in South China Seaon 20 July 2011. There, they
pledged funds to improve the islets infrastructure, including allocation for a
water purification system, a cold storage facility, harbor and pier improvements,
and runway improvements.123
China has responded to some of these actions, as well as to live-fire military
exercises, by stating that they will impair bilateral ties.124 China also calls on
other parties to stop exploiting resources in areas where China claims sovereignty. However, some claimants have strengthened ties with non-regional States,
particularly with the United States.
As tensions escalated over the disputed area in the South China Sea, all claimants have endeavored to build up naval capabilities, enhance maritime surveillance forces to patrol the claimed areas, resulting in frequently happened
provocative actions. Some claimants conducted live-fire drills in disputed waters
resulting in escalated tensions.125 Incidents at sea involving clashes between vessels of different States have become regular occurrences in the South China Sea.
Referring to rising tensions in the South China Sea, Admiral Mullen said: The
worry...is that the ongoing incidents could spark a miscalculation and an outbreak that no one anticipated.126 The situation in the South China Sea has alerted
the world to the increasing danger of conflict, and possible means to reduce the
tension should be on the top of the agenda before it is too late to avoid the worst
outcome of the worst scenario.
120 Ibid.
121 K. Dijamco, Philippine Navy bombs Chinese markers on Spratlys Islands, The Filipino Express, 25 June 1995, http://www.highbeam.com/doc/1P1-2337935.html.
122 Xiaoming, Manila names disputed Spratly areas West Philippine Sea, The Panda
Observer, 13 June 2011 http://www.thepandaobserver.com/2011/06/manila-namesdisputed-spratly-areas.html.
123 China protests Filipino lawmakers visit to Zhongye island, Xinhua, 21 July 2011 http://
www.china.org.cn/world/ 2011-07/21/content_23033724.htm.
124 G. Cheng, US, Philippines hold drills near South China Sea, China Daily, 29 June 2011
http://www.chinadaily.com.cn/usa/epaper/2011-06/29/content_12801194.htm.
125 Ralf Emmers, The Changing Power Distribution in the South China Sea: Implications
for Conflict Management and Avoidance, The RSIS Working Paper, No. 183 (Singapore: S Rajaratnam School of International Studies, 2009).
126 Li, US wont take sides in South China Sea.
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243
Chinas Undefined U-shape Line and Related Issues
Over the years, Chinas U-shape line has remained the most controversial and
ambiguous issue in the South China Sea disputes. Inquiries have been assembled
about legal principles for China to sustain its claims over the South China Sea
islands, adjacent waters, seabed and subsoil. China has been under mounting
pressure to clarify its claims.127
The U-shape line, also known as nine-dotted line, dashed line and so forth,
is composed of nine dashes extending from Chinas mainland to the southern
part of the South China Sea adjacent to the shores of Vietnam, Indonesia, Malaysia, Brunei and the Philippines. The original of this line first appeared in a Chinese map in 1914 drawn by Chinese cartographer Hu Jin Jie.128 This version of the
line was officially confirmed by China in 1947 with 11 dashes entitled Locations
of the South China Sea Islands.129 In 1953, China removed two dashes in the
Gulf of Tonkin.130 Since then, the nine dashes U-shaped Line has appeared in a
configuration through the South China Sea, and has thus been called with different names.131
Although the U-Shaped Line has long been on official Chinese maps, China
neither explained the exact legal value of the line nor the status of the waters
inside the line.132 In the past decades, the origin and evolution of the line in
the South China Sea has been thoroughly examined and mostly agreed upon,133
but views on the legal status of the line have divided as to its historical waters
or title line, territorial border or maritime boundary line, and island attribution
line.134 In recent decades, the legislative practice of the Chinese government
relating to the U-shaped Line and South China Sea archipelagos has somehow been neglected. Nevertheless, Chinas fundamental laws in this field have
127 Jin Yongming, How to resolve the South China Sea issue, China Daily (7 July 2011) 9.
128 Zou Keyuan, The Chinese Traditional Maritime Boundary Line in the South China Sea
and its Legal Consequences for the Resolution of the dispute over the Spratly Islands,
International Journal of Marine and Coastal Law, 14/1 (1999): 2755, 52.
129 Li Jinming and Li Dexia, The Dotted Line on the Chinese Map of the South China Sea:
A Note, Ocean Development and International Law, 34(2003): 28795.
130 Ibid. See also Li Jinming, South China Sea Dispute and International Law of the Sea
(Beijing: Ocean Press, 2003), 502.
131 For the origin of the U-shaped Line, see publications by Li Jinming, e.g. An Overview
of Reviews on the Legal Status of the U-shaped Line in the South China Sea (in Chinese), Southeast Asian Affairs, 2 (2011), General Serial No. 146, 5462.
132 One possible explanation could be concern over further complicating the situation in
the region.
133 Jia Yu, On the Law Status of Duanxuxian of South China Sea (in Chinese) Chinas
Borderland History and Geography Studies, 15/2 (2005): 11249.
134 Li and Li, The Dotted Line on the Chinese Map of the South China Sea: A Note, 28795.
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important implications for Chinas sovereignty claim in the South China Sea, and
they merit a discussion.
Chinas first national statement regarding territorial sea was the Declaration of
the Government of PRC on Territorial Sea announced on 4 September 1958 (1958
Declaration).135 It was announced five months after the first United Nations Conference on the Law of the Sea (UNCLOS I) and reflected the general principles
of the Geneva Conventions.136
The 1958 Declaration contains four paragraphs. The first paragraph declares
that a twelve nautical mile territorial sea surrounds all Chinese territories
including
the Chinese mainland and its coastal islands, as well as Chinese Taiwan and its
surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands,
the Zhongsha Islands, the Nansha Islands and all other islands belonging to China
which are separated from the mainland and its coastal islands by high seas (emphasis
added).
From this paragraph, it is clear the Chinese government was confident about its
sovereignty over the four South China Seaarchipelagos, despite their distance
from its mainland and being separated by high seas.137
The second and third paragraphs establish straight baselines method for territorial sea of China and establish restrictions on foreign military vessels and aircraft entering its territorial sea and adjacent air space, noting the relevant laws
and regulations of China. The fourth paragraph emphasizes that the principles
provided in the second and third paragraphs also apply to Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the
Zhongsha Islands, the Nansha islands (emphasis added), and all other islands
belonging to China. This indicates that straight baselines method and territorial
sea restrictions are also applicable to the archipelagos of the South China Sea.
135 Declaration of the Government of the PRC on Chinas Territorial Sea. For Chinese
and English versions, see SOA, Collection of the Sea Laws and Regulations, 12; 1978.
According to Greenfield, China acknowledged the concept of territorial waters as early
as 1874: see Greenfield, China's Practice in the Law of the Sea, 57. See 1958 Declaration,
paragraphs 1, 2 and 3.
136 The adoption of some Geneva principles indicates Chinas intention to stay within the
broad framework of the Geneva Conventions, see Choon-Ho Park, Oil under the troubled waters: the Northeast Asia sea-bed controversy, in Park, East Asia and the Law of
the Sea, 17.
137 It is worth mentioning that the Democratic Republic of Vietnam Government filed
an official Note signed by Prime Minister Pham Van Dong on 14 September 1958 and
agreed to the terms of Chinas 1958 Declaration about Chinas territorial sea claim
in the East Sea. For a different interpretation, see http://www.eyedrd.org/2011/07/
vietnam-recognizes-prime-minister-pham-van-dongs-diplomatic-note-as-a-politicaldeclaration-and-recognizes-the-legality-and-legitimacy-of-republic-of-south-vietnam.
html.
the south china sea
245
Chinas general position, enunciated in its 1958 Declaration, were effectively
carried out on matters concerning Chinas territorial seas. For example, in 1992
Chinas Congress enacted the Law on Territorial Sea and Contiguous Zone (1992 TS/
CZ Law), which maintained the principles of the 1958 Declaration.138 Article 2
of this law specifies that Chinas land territory includes the Dongsha Islands, the
Xisha Islands, the Zhongsha Islands and the Nansha Islands (emphasis added). By
specifically mentioning the names of the South China Sea islands China confirms
once again its sovereignty over the archipelagos.139 The 1992 TS/CZ Law also sets
forth Chinas 12 nautical mile territorial sea and 24 nautical mile contiguous zone
measured by straight baselines.140
In May 1996, upon its ratification of the LOSC, China declared two sets of
baseline coordinates, one set for its mainland and one set for the Xisha Islands
(Paracels).141 The baselines for the mainland consist of a series of straight lines
linking forty-nine coordinates surrounding its mainland.142 The baselines for the
Paracels consist of a series of straight lines linking twenty-eight coordinates.143
Chinas declaration of coordinates marked a concrete step in its exercise of sovereignty over the South China Sea archipelagos and brought an end to most of the
uncertainty surrounding Chinas territorial sea baselines. However, some uncertainty remains due to the 1996 announcement expressly stating that the remaining baselines will be announced at some unspecified future time. To date, the
baseline coordinates for the rest of South China Sea archipelagos such as Spratlys
have yet announced.
138 For the Chinese and English Version, see SOA, Collection of the Sea Laws and
Regulations, at 46; 20115. For discussions, see Wang Liyu and Peter Pearse, The
new legal regime for Chinas territorial sea, Ocean Development and International
Law, 25 (1994): 434; M. Herriman, Chinas Territorial Sea and the Contiguous
Zone Law and International Law of the Sea, Maritime Studies, 92 (1997): 1520; Song
Yann-Yuei and Zou Keyuan, Maritime Legislation of Mainland China and Taiwan:
Developments, Comparison, Implications, and Potential Challenges for the United
States, Ocean Development and International Law, 31 (2000): 30345.
139 See the 1992 TS/CZ Law, paragraph 2, article 2. See X. Ni and A. Zhao, An Introduc
tion to Territorial Sea and Contiguous Zone (in Chinese) (Beijing: China Ocean Press,
1993), 84.
140 The 1992 TS/CZ Law remains the 12-nautical mile breadth of territorial sea, straight
baselines, prior approval of foreign military vessels, and sovereignty over Chinas archipelagos and islands claimed in the 1958 Declaration. See articles 2, 3, 6. Lee G. Cordner,
The Spratly Islands Dispute and the Law of the Sea, Ocean Development and International Law, 25 (1994): 65.
141 See, Declaration of the PRC on the Baseline of the Territorial Sea (1996), SOA, Collection of the Sea Laws and Regulations, 710; 2069.
142 Ibid.
143 Ibid.
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China established its EEZ and continental shelf in 1998 by enacting the Law
on the Exclusive Economic Zone and the Continental Shelf (1998 EEZ/CS Law).144
Although this law does not expressly refer the EEZ and continental shelf to the
South China Sea archipelagos, two note verbales clarified the U-Shaped Line
includes sovereignty over the islands in the South China Seas and the adjacent
waters and sovereign rights and jurisdiction over the relevant waters as well as
the seabed and subsoil. Note CML/8/2011, dated 14 April 2011 further spelled out
Chinas right to maritime zones generated by the Nansha Islandsspecifically,
a territorial sea, contiguous zone, EEZ, and continental shelf. These diplomatic
notes, particularly their inclusion of the map, broke the silence of China in its
official communication to the United Nations in declaring its claims within the
U-Shaped Line.
Having restated its claim to sovereignty over the islands of the South China
Sea, China needs to provide further notice to the international community by
delimiting the specific maritime zones within the U-Shaped Line. As it stands, it
is unclear whether China is claiming the bounded waters as internal waters, territorial sea, EEZ, continental shelf, or as some other status with its own unique
features.
It may be recalled that the first and second paragraphs of Chinas 1958 Declaration sets forth the 12 nautical mile territorial sea by straight baselines to all of its
territories including the South China Sea archipelagos.145 Except that, there is no
indication or specification of legal status of the waters within the U-shaped Line.
Sometimes Chinas claim is described as historical rights,146 which might derive
from the undecided expression in article 14 of the 1998 EEZ/CS Law. It provides
that its provisions shall not affect the historic rights that China enjoys without
specifying what historical rights are being referred to and what provisions might
affect its historical rights.147 Arguably these rights include the waters within the
U-shaped Line, as they bear unique status of historical features.148
144 For the Chinese and English versions, see SOA, Collection of the Sea Laws and Regula
tions, 114; 2105.
145 See, Declaration of the Peoples Republic of China on the Territorial Sea, Collection
of the Sea Laws and Regulations of the Peoples Republic of China 3rd Edition, 2001,
197.
146 Brice M. Claget, Competing Claims of Vietnam and China in the Vanguard Bank
and Blue Dragon areas of the South China Sea, Journal Oil and Gas Law & Taxation
Review, 13 (1995): 375379.
147 There was no explanation of this provision during its legislative process. For a com
prehensive discussion, see Zou Keyuan, Historic Rights in International Law and in
Chinas Practice, Ocean Development and International Law, 32 (2001): 14968.
148 Zou is of the view that Chinas claim may be called historic rights with tempered sov
ereignty. See Zou, ibid., 160. See also Li and Li, The Dotted Line on the Chinese Map
of the South China Sea: A Note, 293. For a discussion, see Greg Austin, Chinas Ocean
Frontier: International Law, Military Force and National Development, 20622.
the south china sea
247
The LOSC recognises historic title or historic waters in articles 10(6), 15, and
46(b), but does not define them. Commentators have observed that the LOSC
regime for such waters is to be determined in accordance with customary international law.149 In the South China Sea, Chinas history of occupation, natural
resource exploitation, and administrative control over the archipelagos has its
earliest recordings in the Han Dynasty.150 Since the Song Dynasty, China has exercised authority over the waters, albeit with some interruptions. Overall, China
enjoyed undisputed sovereignty over the South China Sea until the 1970s. Moreover, China has demonstrated its political will to retain authority over the islands
through diplomatic and military means. The waters in the U-Shaped Line have
a unique status attached with historical characteristics. Although China did not
mention historic rights or historic waters in its note verbales, the specific status of the waters in the U-Shaped Line needs to be determined in accordance
with recognized principles of international law and State practice. Chinas foremost task is to comply with the LOSC by issuing maps or geographic coordinates
setting out the limits of the maritime zones (territorial seas, contiguous zone,
EEZs, and continental shelves) for the features in the South China Sea, as it did
with the Paracels.
Regarding the entitlement of islands or rocks to maritime zones, it is important to note that the majority of the South China Sea insular features are reefs
and, thus, are subject to questions of whether these features are capable of or
entitled to generate maritime zones on their own, such as an EEZ and continental
shelf. Once the maritime status of these islands and rocks are defined, appropriate maritime zones may be delimited. If overlapping boundaries between China
and other claimants result, then issues of resource exploitation and joint development may be properly negotiated.
The Way Forward
There are numerous disputes in the South China Sea, and the situation has
become increasingly complex. Considerable disagreement exists between China
and its maritime neighbours over questions of fact and law. Additionally, the
involvement of non-regional States has only increased the level of complexity in
the South China Sea.
As the largest State bordering the South China Sea and a core party to the
dispute, Chinas territorial sovereignty and integrity to Nansha (Spratlys) Islands
149 Alex G. O. Elferink, The islands in the South China Sea: How does their presence
limit the extent of the high seas and the area and the maritime zones of the mainland
coasts? Ocean Development and International Law, 32 (2001): 172.
150 Han Zhenhua, Collections of Historical Documentations on the South China Sea
Islands of China (in Chinese) (Beijing: Oriental Press, 1988), 1522.
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has been seriously affected. Yet, there are lessons for China to take away from the
disputes. Over the years, Chinas lack of concrete action in clarifying its claims in
the South China Sea has created a very politically troublesome situation. China
has not only missed opportunities in enhancing its control of the Spratlys, but
also faced the challenge to gain support from the international community for
its sovereignty151 China must take effective steps to protect its national interests
and secure its sovereignty claim.
To achieve its desired effect, it is important that China clarifies its South China
Sea claims in a manner consistent with LOSC to reduce conflicts with other claimants. The LOSC is not a magic document that will swiftly resolve all the problems
encountered by the States, and it does not provide readily available answers
that will immediately settle the South China Sea disputed claims; however, it
does provide common ground and useful guidelines for States seeking a solution.
Moreover, it secures long-term national interests.
The challenges in the South China Sea are immense, but there are still opportunities for dispute settlement. It is of important for all Claimants to seek for
legal, political and other available tools to improve the situation in the South
China Sea and to more clearly define the extent and basis of their respective
claims. All claimants must recognise that armed conflict over the Spratlys serves
no nations interests and would have far-reaching international and regional consequences. A solution to the dispute over South China Sea claims can only come
from the claimants themselves, acting in good faith, in a spirit of cooperation
and compromise.
151 Zheng Yongnian, How can China change its difficult position in the South China Sea
issue? (in Chinese), Defence Times, October 26, 2011, 20.
Chapter ten
Politics, International Law and the Dynamics of
Recent Developments in the South China Sea
Tran Truong Thuy*
Introduction
While China, ASEAN and the US remain as the most significant players in the
South China Sea, other countries such as Japan, India, and Australia also have
huge interests in this maritime domain. In recent years, action-reaction cycle in
the South China Sea has increased tension in the region, deteriorated relations
between China and its neighboring countries, posed challenges for ASEAN in
maintaining centrality in the regional security structure, and strengthened US
determination to rebalance toward Asia. The South China Sea issue has become
the bellwether for how China will rise peacefully and play by established rules, a
test case for the US in sustaining its supremacy in the region and a challenge for
ASEAN unity. This paper will explore the interests and policies of China, ASEAN,
the US and other major powers in the South China Sea, analyse the dynamics of
recent developments and envisage their implications for regional stability.
Interests of the Concerned Parties in the South China Sea
China
For China, a regional power on its path to global power seeking to exert greater
influence in Asia and Southeast Asia in particular, the South China Sea is an
important backyard to shield its mainland from any sea attack. If, on land, China
only gains a strategic leverage over three bordering Southeast Asian countries
(Laos, Myanmar and Vietnam), then at sea, especially in the South China Sea,
China can project its power over all countries in Southeast Asia.
*PhD, Research Fellow and Director of Center for East Sea (South China Sea) Studies,
Diplomatic Academy of Vietnam.
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Chinas goal to protect its interests within the strategic stability belt in the
near seas stretching from the Yellow Sea, the East China Sea, and the Taiwan
Strait to the South China Sea explains why Beijing considers the South China Sea
as a core interest, opposes the US military surveillance activities in the exclusive
economic zone, and increases the naval capability of anti-access/area denial.
Moreover, to protect its increasing political and economic interests, Chinese navy
is shifting to far-seas operations. The South China Sea then becomes an area for
training exercises and a springboard for China to move out.
According to General Daniel Schaeffer, in military term, China wants to keep
the South China Sea under control partly because this sea is an important piece
on the board of the Wiq (play of go) to encircle and isolate Taiwan, forcing
Taiwan to unite with mainland under Chinas grand strategy of becoming a
superpower. Chinas systemic approach, extending from the South China Sea,
and the East China Sea to Okinawa (Japan) with military exercises in the sea
East of Taiwan and surveillance around the US Guam Island in the Pacific Ocean,
has created a circle around Taiwan as a strong deterrence against the desire for
independence of this island.1
In terms of energy, it is widely believed that the South China Sea has great
potential for oil and gas. There are different estimates of the oil and gas reserves
in the South China Sea, some vary quite significantly2 as the disputes have prevented the claimants from calculating the exact amounts. However, there is a
possibility that the energy reserves in the South China Sea have been overvalued.
Even in case of effective exploitation, the output would account for only a small
part of supply compared to the huge demand in the future.
On other hand, to deal with the energy security issue, China and ASEAN countries are finding ways to diversify their energy supplies. China is now concentrating on oil and gas exploitation in areas as close as possible (in order to minimise
transportation costs and secure the supply of energy resources given the context
of an unstable Middle East). As a result, the South China Sea becomes the focal
point in Chinas energy security strategy. That China promotes a policy of setting aside disputes and pursuing joint development in the South China Sea is an
essential measure to help Beijing tackle the energy security issue.
Moreover, at the moment, the legitimacy of the Chinese Communist Party is
maintained and consolidated by Chinas high economic growth rate. Chinas stability depends on the steady supplies of natural resources and freedom of navigation.
1 Daniel Schaeffers paper at the 3rd International Workshop on the South China Sea in
Hanoi, 2627 November 2011.
2In 1998, US geologists estimated that the sea possessed about 2.115.8 billion oil barrels
in the Spratly, while Russian sources estimated about 7.5 billion barrels. In 2003, China
assessed that the Paracels area contains reserves of 41 billion tons of oil, 810 billion
cubic meters of gas, about 3.1 billion tons of other natural resources and up to 630 million kWs of renewable energy.
politics, international law and dynamics of recent developments251
Yet, China is not satisfied with current situation when the safety of SLOC is
guaranteed by the US navy. China wants to protect important sea routes which
are vital to Chinas economy, such as routes through the South China Sea and
the Malacca Strait. If these routes were blocked for one day and Chinas energy
supply would be interrupted, and it would then lead to social unrest in China.3
Therefore, Beijing has legitimate concerns to develop naval forces to protect its
SLOC. However, Chinese military and navy modernisation is posing mounting
challenges to the East Asian order.
ASEAN
Because of divergent interests and external impact, ASEAN countries have different viewpoints regarding the South China Sea issue. Even claimants in ASEAN,
including Vietnam, the Philippines, Malaysia and Brunei sometimes do not share
a common voice. Among ASEAN claimants, Vietnam and the Philippines are
those who had the largest number of collisions/incidences with China. Therefore,
both countries are the two most active players who call for ASEANs solidarity
in handling the South China Sea issue. Since the US pronouncement of Asias
pivot, the Philippines has become more confident and proactive, and frequently
proposed new initiatives in ASEAN forums. Despite their status as claimants in
the South China Sea disputes, Malaysia and Brunei are not directly intimidated
by China on the sea and they often attach greater importance to their relations
with China.
Among the non-claimants, Singapore and Indonesia hold a neutral view. They
do not support the claim of any party. Singapore MFA spokesperson once commented that Singapore is not a claimant state and takes no position on the merits or otherwise of the various claims in the South China Sea. But as a major
trading nation, Singapore has a critical interest in anything affecting freedom of
navigation in all international sea lanes, including those in the SCS.4 Indonesia
has a tradition of playing the mediation role, hosting many workshops on managing potential conflict in the South China Sea over the last 20 years and now
actively promoting ASEAN common position on this issue. This active mediation
role in the South China Sea issue has strengthened Indonesian image as one of
the most reliable member within ASEAN. Laos, Thailand and Myanmar do not
have direct interests in the South China Sea; therefore they have rarely expressed
3CNAS report, Cooperation from Strength: The United States, China and the South China
Sea, p. 15. http://www.cnas.org/files/documents/publications/CNAS_CooperationFrom
Strength_Cronin_1.pdf.
4Singapore MFA spokespersons Comments on Visit of Chinese Maritime Surveillance
Vessel Haixun 31 to Singapore. http://www.mfa.gov.sg/content/mfa/overseasmission/
phnom_penh/press_statements_speeches/embassy_news_press_releases/2011/201106/
press_201106_5.html.
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their positions. Having close political and economic ties with China, Cambodia,
to a certain extent, supports Chinese principle of bilateral negotiation.
Although ASEAN members have divergent interests on the South China Sea, all
of them share common interests in protecting freedom of navigation, and regional
stability, respecting international law as well as maintaining the solidarity and
centrality role of ASEAN within regional security (and economic) architecture.
All 10 ASEAN member states participated in negotiation and signed the Declaration of Conduct (DOC) in 2002 and are now in the same position to promote
the negotiation of the Code of Conduct (COC) with China, in order to effectively
manage the disputes and enhance peace and cooperation in the region.
The US
As the only global superpower, the US has direct interests in the South China
Sea in many aspects: (i) maintaining the US-led order at sea, including the international law of the sea pursuant to US interpretation; especially the freedom of
navigation which includes the activities of US military ships; (ii) protecting the
interests of its allies, especially the strategic maritime routes for Japan, South
Korea, Taiwan and the Philippines; (iii) managing Chinas (naval) outreach to
ensure that its rise will not upset the present US-dominated system; (iv) safeguarding the interests of US oil and gas corporations in the region. These interests
are fundamental and permanent; it is difficult for the US to bargain with China
because most of these interests are inextricably tied to the leadership position
that the US wants to sustain in the existing global system.
Other Powers
These include states such as Japan, India, Australia, and South Korea, who are
benefited in enjoying the freedom of movement through the South China Sea also
have huge interests in maintaining freedom of navigation, regional stability, and
respecting the current system of international law. They also have interests in
maintaining the centrality role of ASEAN as ASEAN provides platforms for these
countries to engage in multilateral diplomacy (such as ASEAN+, ARF, ADMM+,
EAS and so forth).
Policies of Parties in the South China Sea
China
Being the most powerful claimant in dispute, Chinas policies set the tone for the
situation in the South China Sea.
Since early 2000s, in implementation strategy of peaceful development,
China has carried out a charm offensive policy with variety of measures to promote cooperation with ASEAN, changed its standpoint toward the ARF process
politics, international law and dynamics of recent developments253
and signed the Declaration of Conduct (DOC) in 2002. Years after the DOC signing, though China has not actively cooperated with ASEAN in implementing the
joint declaration, it did not conduct any significant activity threatening the stability of the South China Sea.
However, since 2009, China has adjusted its policy toward the South China Sea
issue and become more assertive. China has significantly increased its presence
in the South China Sea with a comprehensive approach, expanding not only military but also paramilitary and civilian activities in the area, to achieve de-facto
control of the area in the South China Sea as indicated by the so-called U-shaped
line claim.
Relating to the military activities, China is accelerating its military build-up,
especially in terms of naval modernization with the construction of a naval base in
Sanya that could serve as a gateway to the South China Sea. These developments
are arguably designed to send messages of deterrence to other ASEAN claimants in the South China Sea. The Chinese navy has also increased the frequency
and level of coordination in conducting naval exercises in the South China Sea.
One of the most significant event happened in July 2010 when the PLA navy for
the first time mobilised at least a dozen modern warships from three fleets (the
North Fleet, the East Fleet, and the South Fleet) to conduct a large-scale joint
naval exercise in the South China Sea.5 Significantly, on 28 June 2012, Chinas
Ministry of Defense announced that China commenced combat-ready patrols in
its claimed waters in the South China Sea.6
Chinese navy actively deploys anti-access/area denial strategy at sea, a typical
example of which is the harassment of USNS Impeccable on March 2009, aiming
to push the US navy far away from Chinas coast and turn its exclusive economic
zone into an exclusive military zone. On other hand, PLAN has switched from
near sea active defence in the first island chain (from Kurile, Taiwan to the South
China Sea) to the far-sea defence of second island chain (from Japan, Guam
(US) to Northwest Pacific and Indian Ocean). Thus, China is investing a Blue
Water Navy, including developing the first aircraft carrier.7 As a consequence of
Chinas naval modernization, especially its Blue Water Navy, the regional balance
of (hard) power is shifting in favour of China.
5Chinas three-point naval strategy, Strategic Comment, Volume 16, Comment 37
October 2010, The International Institute For Strategic Studies (IISS), http://www.iiss
.org/publications/strategic-comments/past-issues/volume-162010/october/chinasthree-point-naval-strategy/.
6China pledges to protect maritime sovereignty, http://www.chinadaily.com.cn/china/
2012-06/29/content_15533944.htm.
7Ian Storey, Asias Changing Balance of Military Power: Implications for the South China
Sea Dispute in NBR Report Maritime Energy Resources in Asia: Energy and Geopolitics,
Clive Schofield edited.
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Concerning paramilitary activities, China has deployed systematically patrol
vessels and boats from various Chinese maritime law enforcement agencies to
the South China Sea. China has at least five maritime law enforcement agencies: the China Coast Guard is the maritime branch of the Public Security Border Troops, a paramilitary police force under the leadership of the Ministry of
Public Security; The China Maritime Safety Administration, part of the Ministry
of Transport, is for coordinating maritime search and rescue; The China Marine
Surveillance (CMS), a paramilitary maritime law enforcement agency under the
auspices of the State Oceanic Administration; The China Fisheries Law Enforcement Command (FLEC) (an organ of the Fisheries Management Bureau under
the Ministry of Agriculture) is responsible for the enforcement of laws concerning
fishing and marine resources; and the General Administration of Customs operates a maritime anti-smuggling force. Some scholars have observed that every
agency has their own patrol vessels and operates independently and uncoordinatedly with each other.8
During the period of its unilaterally declared fishing ban between May and
August (imposed annually since 1999), Chinese maritime security forces have
repeatedly detained Vietnamese fishermen, confiscated fishing boats and charged
fines of US$8,000 to $10,000 for their release. Since early April 2010, Beijing
even announced the dispatch large fishery patrol vessels to the Spratly Islands
to protect Chinese fishing vessels, which were increasing in number and going
further to the south.9 On 23 June 2010, the Chinese fishery administration vessel Yuzheng 311 even pointed a large-caliber machine gun to an Indonesian ship
and threatened to attack the ship when a Chinese fishing boat was seized by
Indonesian forces in the area within Indonesias exclusive economic zone in the
Natuna Islands.10
The fact that China increasingly deploys its paramilitary forces to patrol the
South China Sea is both a move to consolidate its claims over the disputed areas
and a message to outsiders that China only uses peaceful measures. However,
question remains that if these powerful and well-equipped forces cannot protect
Chinas interests, whether China will not hesitant to use its military forces to
protect its interests.
8For
a comprehensive analysis, see: Lyle J. Goldstein, Five Dragons Stirring Up the Sea:
Challenge and Opportunity in Chinas Improving Maritime Enforcement Capabilities,
U.S. Naval War College, China Maritime Study 5, April 2010. http://www.usnwc.edu/
Research---Gaming/China-Maritime-Studies-Institute/Publications/documents/CMSI_
No5_web1.pdf
9Ian Storey, Chinas Charm Offensive Loses Momentum in Southeast Asia, China Brief
Volume: 10 Issue: 9, April 29, 2010. http://www.jamestown.org/single/?no_cache=1&tx_
ttnews[tt_news]=36324&tx_ttnews[backPid]=7&cHash=897d20a7fa.
10China flexes muscles in South China Sea, Mainichi Shimbun, 27 July 2010.
politics, international law and dynamics of recent developments255
The issue of resources exploitation (hydrocarbon and fish) in the South China
Sea has become the most frequent source of tensions between China and other
claimants. On the one hand, China accused other claimants of extracting Chinas
oil, and catching Chinas fish, while China has not obtained any drop of oil
from the Spratlys, and Chinese fisherman are being captured and driven away.11
On the other hand, China tried to prevent other claimants from oil and gas development in the overlapping area between Chinas U-shaped line and others EEZ.
For example, since summer 2007, China has threatened a number of foreign oil
and gas companies to cease joint offshore exploration operations with Vietnam
or face unfathomable consequences in their businesses with China.12 Within
20112012, China at least three times adopted more aggressive tactics of using law
enforcement vessels (from Maritime Surveillance Agency) and/or fishing boats to
harass and cut the seismic cables of commercial oil exploration vessels operating within Vietnams EEZ.13 Since the second half of 2012, there were two (first)
11 Mingjiang Li, Reconciling Assertiveness and Cooperation? Chinas Changing Approach
to the South China Sea Dispute, Security Challenges, Volume 6, Number 2 (Winter
2010), p. 58.
12Scot Marciel, Maritime Issues and Sovereignty Disputes in East Asia Testimony
before the Subcommittee on East Asian and Pacific Affairs, Committee on Foreign
Relations, United States Senate, 15 July 2009. http://foreign.senate.gov/hearings/
hearing/20090715_2/.
For Summary of leaked US diplomatic cables released by WikiLeaks on Chinas protests
against international oil firms signing exploration deals with Vietnam in the South
China Sea see, Greg Torode, Beijing pressure intense in South China Sea row,
South China Morning Post, 23 September 2011. http://topics.scmp.com/news/chinanews-watch/article/Beijing-pressure-intense-in-South-China-Sea-row.
13First cable cutting incident on 26 May 2011, took place in an area just about 80 miles
off the south-central coast of Vietnam, within Vietnams exclusive economic zone when
three Chinese patrol ships accosted and harassed the Vietnamese ship Binh Minh 02.
See Press Conference on Chinese maritime surveillance vessels cutting exploration
cable of PetroViet Nam Seismic Vessel. http://www.mofa.gov.vn/en/tt_baochi/pbnfn/
ns110530220030#1JLxTTgwqAy2.
Second incident occurred on June 9, 2011, when a Chinese fishing boat, with support from Chinese fishing patrol vessels, rammed the survey cables of the PetroVietnam
ship Viking II, which was conducting a seismic survey in Block 13603, an area within
200-nautical mile exclusive economic zone of Vietnam. Foreign Ministry Spokesperson
Nguyen Phuong Nga at the Press Conference June 9th 2011. http://www.mofa.gov.vn/en/
tt_baochi/pbnfn/ns110610100618#kyKoH1NekSr9.
Most recent incident happened on December 3, 2012 when two Chinese boats ran
up behind and cut seismic survey cables of PetroVietnams ship Binh Minh 02 while
this commercial ship was operating in the area outside the mouth of Tonkin Gulf on
Vietnams side, about 20 miles from median line between Chinas coast and Vietnams
coast. See Petro Vietnam Protests Chinese Ships Breakage of Survey Cable at http://
biengioilanhtho.gov.vn/eng/PrintNews.aspx?NewsId=4466f14c.
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times that Chinese maritime surveillance vessels reportedly attempted to harass
Malaysian exploration ships within Malaysian continental shelf.14
China has unilaterally imposed fishing bans between May and August every
year since 1999. As aforementioned, Chinese maritime law enforcement forces
have repeatedly detained Vietnamese fishermen, confiscated fishing boats and
charged fines for their release.
While protesting against resources development activities undertaken by other
countries in areas within the U-shaped claim, China has continued to advocate
for joint energy resources development within the U-shaped line in the South
China Sea.
Besides taking activities directly on the sea, China also initiated a number of
steps to strengthen its claim legally and administratively, which provoked protests from other claimants. For example, in the second half of 2012, Chinese
government issued new electronic passport for its citizens with the map of the
U-shaped line claiming most of the South China Sea. In November 2012, Hainan
provincial government announced new regulations allowing law enforcement
vessels to board, inspect, detain, expel or confiscate foreign ships conducting illegal activities within Chinese waters. Though Hainans officials and Chinas Ministry of Foreign Affairs spokesperson assured the international community that
the scope of application of this rule is within the 12 nautical miles of Hainans
coast and the Paracels,15 the language of the regulation regarding Chinese jurisdictional waters and Sansha city is relatively ambiguous, which can be later
exploited by Chinese law enforcement agencies to expand board and search
activities to the U-shaped line, or at least to the territorial sea of other islands and
rocks in the South China Sea.16 Tension is likely to increase if China applies this
new regulation and arrests Vietnamese fishermen conducting fishing activities
near the Paracels. In case Chinese law enforcement agencies expand board and
search activities to the territorial sea of islands and rocks in the Spratlys which
are under control of other claimants, there will be new clashes and incidents in
these areas.
Several interconnected internal and external factors contribute to the explanation of why China has returned to a more assertive approach in the South China
Sea in recent years.
Domestic factors include: (i) The rise of nationalism in China: Chinese people
believe that other claimants are extracting Chinas oil, and catching Chinas
fish, while China has not obtained any drop of oil from the Spratly islands, and
14http://malaysiaflyingherald.wordpress.com/2013/04/16/buku-bertemu-ruas-the-rmnagainst-china-maritime-surveillance-agency/.
15China says board and search sea rules limited to Hainan coast http://in.reuters.com/
article/2012/12/31/china-seas-idINL4N0A51QH20121231.
16See text in Chinese, http://www.hq.xinhuanet.com/news/2013-01/01/c_114221654.htm.
politics, international law and dynamics of recent developments257
Source: Adapted from Clive Schofield, Ian Townsend-Gault, Hasjim Djalal, Ian Storey, Meredith Miller
and Tim Cook, From Disputed Waters to Seas of Opportunity: Overcoming Barriers to Cooperation
in East and Southeast Asia, National Bureau of Asian Research (NBR), Special Report, No. 30 (Seattle:
NBR, July 2011), p. 5.
Figure 10.1Competing Maritime Claims in the South China Sea.
258
tran truong thuy
Chinese fisherman are being captured and driven away;17 (ii) Leadership transition period and the ensuing internal political struggles: none of the Chinese
leaders wants to appear soft in protecting territorial sovereignty; (iii) Interest
groups: Some activities are carried out by competing interest groups (such as
Fisheries Law Enforcement Command, China Marine Surveillance...) without
approval from centre,18 while top leaders are busy with power transition and
other domestic issues; (iv) Energy demand: as aforementioned, China considers
the South China Sea as a vital source of supply and a critical transportation route
for its national development; (v) Relative stability in China-Taiwan relation in
recent years has enabled China to shift its priorities, capability and resources to
other external issues, most notably to the South China Sea.
Externally, there are two factors contributing to the explanation of Chinas
assertive behaviours in recent years, which closely relate to the other two dyads
of the China-ASEAN-US triangle. First, China believes that the USs power is
declining due to economic and financial problems in 20082009; while China
for decades of continuous remarkable economic growth has accumulated its economic and military power to a level that allows it to become more confident and
seek to increase its influence and interests in East Asia, of which the South China
Sea is the focal point. Chinas assertiveness is part of the plot to test US response.
Second, ASEAN claimants activities have forced China to react. This is Chinas
main argument when it accused other claimants of provoking tension and violating China sovereignty in the South China Sea. In fact, none of ASEAN claimants
are exploiting hydrocarbon resources in disputed Spratly or Paracel areas. ASEAN
claimants resources development activities have been carried out in their internationally recognised exclusive economic zone for many years without Chinas
opposition. The main reason that China has increasingly opposed those activities is that since China made public internationally its map with U-shape line in
2009, any activity taken by other claimants within the line has been regarded as
violations of Chinas interests.
ASEAN
Facing with increasing Chinas assertive activities in the South China Sea, ASEAN
claimants, particularly the Philippines and Vietnam, have been applying a multifaceted policy designed to defend their national interests while simultaneously
seeking to preserve a peaceful environment and relations with their neighbouring states. This policy comprises a combination of using the international law,
17Mingjiang Li, Reconciling Assertiveness and Cooperation? Chinas Changing Approach
to the South China Sea Dispute, Security Challenges, Volume 6, Number 2 (Winter
2010), p. 51, p. 58.
18See, ICG Report Stirring up the South China Sea part 1 at http://www.crisisgroup.org/
en/regions/asia/north-east-asia/china/223-stirring-up-the-south-china-sea-i.aspx.
politics, international law and dynamics of recent developments259
especially the United Nations Convention on the Law of the Sea, 1982 (LOSC),19 to
defend their maritime claims; opposing joint development with China in the
areas within their internationally recognised maritime zones; bringing up the
South China Sea issue to regional forums for discussion with involvement of
other external powers, especially the US; working with other members of ASEAN
in engaging China in DOC implementation and in working for a new code of conduct; and negotiating directly with China to defuse tensions and to settle remaining bilateral issues.
In their attempts to deal with Chinas vast claim in the South China Sea,
ASEAN claimants have been trying to separate their exclusive economic zones
and continental shelves measured from their mainland coasts (or from near-shore
undisputed islands) that they consider to be undisputed waters from the central
parts of the South China Sea that are in their estimation subject to overlapping
maritime claims arising from disputes over islands area in the South China Sea.
In order to minimise the area under dispute, ASEAN claimants prefer to interpret
the LOSC, specifically the article 121 regime of islands in a strict way.20 They
directly or indirectly do not consider any disputed features in the South China
Sea to be islands, as defined in Article 121 of UNCLOS, therefore these features
can generate maximally twelve nautical miles maritime zone of territorial sea.
The submissions on the outer limits of the continental shelf made to the UN
Commission on the Limits of the Continental Shelf (CLCS) by Malaysia and Vietnam in 2009 have helped to clarify the limits of their exclusive economic zones
and continental shelf claims.21 Vietnam and Malaysia also interpreted the regime
of islands in the South China Sea in a restrictive manner by not considering
any of the features in the Spratly Islands (and the Paracel Islands, in the case of
Vietnams submission) to be islands capable of generating exclusive economic
zone and continental shelf rights in keeping with article 121(2) of LOSC.
Brunei also shares the view of other concerned countries in ASEAN. In preliminary information concerning the outer limits of its continental shelf, Brunei
stated that its forthcoming full submission to the commission will show that the
19 United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
20LOSC provides for two categories of feature under article 121 governing the regime of
islands: islands that are capable of generating the full suite of maritime zones, including the exclusive economic zone and the continental shelf, and rocks which cannot
sustain human habitation or economic life of their own and shall have no exclusive
economic zone or continental shelf.
21 Submissions to the Commission: Joint Submission by Malaysia and the Socialist Republic
of Viet Nam, Commission on the Limits of the Continental Shelf (CLCS), UN Division for
Ocean Affairs and the Law of the Sea, http://www.un.org/Depts/los/clcs_new/submissions_
files/submission_mysvnm_33_2009.htm. Submissions to the Commission: Submission by
the Socialist Republic of Viet Nam, Commission on the Limits of the Continental Shelf
(CLCS), UN Division for Ocean Affairs and the Law of the Sea, http://www.un.org/Depts/
los/clcs_new/submissions_files/submission_vnm_37_2009.htm.
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edge of the continental margin, lying at the transition between the Dangerous
Grounds and the deep ocean floor of the South China Sea, is situated beyond 200
nautical miles from the baselines from which Bruneis territorial sea is measured.22
This suggests that Brunei will fix the outer limit of its extended continental shelf
beyond two hundred nautical miles from the baseline of land territory without
taking consideration of claimed islands in the Spratly Islands.
Concerning the Indonesian position, in a note sent to the CLCS on 8 July 2010,
Indonesia stated that those remote or very small features in the South China Sea
do not deserve exclusive economic zone or continental shelf of their own.23
Regarding the position of the Philippines, under the Archipelagic Baselines Law
passed on 10 March 2009, the disputed Kalayaan Islands and Scarborough Shoal
remain part of Philippine territory but under a regime of islands, per LOSC.24
On 5 April 2011, the Philippines sent a note verbale to the CLCS,25 stated that the
extent of adjacent water to relevant geological features is clearly defined under
the provisions of LOSC, specifically article 121 which elaborates on the regime of
islands.26 Henry Bensurto, Philippine Department of Foreign Affairs, elaborated
on this position in a conference in Kuala Lumpur in December 2011 that extent
of adjacent waters of relevant features is measurable and maximally given
12 nautical miles of territorial sea.27
This simplified and solution-oriented interpretation of the regime of features
of the Spratlys on the part of the ASEAN claimants was not shared by China. As
the strongest claimant state, China appears to want to maximise the area under
dispute in the South China Sea by maintaining the ambiguity of the U-shaped
line claim and by interpreting article 121 on the regime of islands in a liberal
way. Indeed, in responding to Philippine Note, China sent a Note of its own to
the CLCS and declared that:
22Brunei Darussalam, Brunei Darussalams Preliminary Submission Concerning the
Outer Limits of Its Continental Shelf, www.un.org/Depts/los/clcs_new/submissions_
files/preliminary/brn2009preliminaryinformation.pdf.
23Permanent Mission of Indonesia to the United Nations, Communication dated 8 July
2009, Commission on the Limits of the Continental Shelf (CLCS), UN Division for
Ocean Affairs and the Law of the Sea, www.un.org/Depts/los/clcs_new/submissions_
files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf.
24PGMA signs baselines bill into law, Press Release by Philippine Information Agency
on 12 March, 2009, http://www.pia.gov.ph/?m=12&sec=reader&rp=1&fi=p090312.htm
&no=8&date=03/12/2009.
25See, Philippine Note at, http://www.un.org/Depts/los/clcs_new/submissions_files/
mysvnm33_09/phl_re_chn_2011.pdf.
26See, Philippine Note at, http://www.un.org/Depts/los/clcs_new/submissions_files/
mysvnm33_09/phl_re_chn_2011.pdf.
27Remarks of Henry Bensurto at MIMA conference on South China Sea: Recent Developments and Implications Towards Peaceful Dispute Resolution, 1213 December 2011.
Kuala Lumpur, Malaysia.
politics, international law and dynamics of recent developments261
Under the relevant provisions of the 1982 LOSC, as well as the Law of the Peoples
Republic of China on Territorial Sea and Contiguous Zone (1992) and the Law on
the Exclusive Economic Zone and the Continental Shelf of the PROC (1998), Chinas
Nansha Islands is fully entitled to Territorial Sea, EEZ and Continental Shelf28 (emphasis added).29
Response to Chinas proposal of joint development, in principle, other claimants
do not oppose the concept of joint development, ASEAN claimants even signed
some joint development arrangements in the South China Sea and Gulf of Thailand; however, the question of how to define an acceptable area in the disputed
waters in the South China Sea to launch joint development projects remains one
of the most intractable issues in putting the idea into practice. ASEAN claimant
states would certainly not accept any Chinese proposals for joint development
arrangements in the areas within their undisputed EEZ and continental shelves.
Such areas are, sometimes of the order of five to seven hundreds nautical miles
distant from Hainan Island, the southernmost Chinese undisputed territory. On
other hand, Chinas policy of assertiveness on the sea and pressure on Vietnam
and Philippines for setting aside dispute and pursuing joint development only
raises nationalism in these countries and makes compromises harder to achieve.
As has been demonstrated in the case of the Agreement for Joint Marine Seismic
Undertaking in the South China Sea in 2005 between national petroleum corporations of China, the Philippines and Vietnam, the Philippines had withdrawn
from the agreement due to mounting domestic opposition, which condemned
the government of compromising Philippine sovereignty by allowing the area
of the joint development project to overlap with the countrys exclusive economic zone. Alternatively, ASEAN claimants are ready to work with foreign
including Chinesepartners only on the condition that their sovereign rights
are fully respected.30
Failing in reaching any agreement between China and other ASEAN countries
on joint development in the South China Sea is also relating to the most controversial issuethe U-shape line. Since 2009, when China in a Note Verbal to the
CLCS published a map with an U-shaped line covering almost 80% of the South
China Sea and overlapping with exclusive economic zones of all ASEAN countries that surrounding the South China Sea, including Indonesia, these countries
have become more concerned about Chinas intention. Several countries have
protested to the line or requested China to clarify its legal basic.
28See, Chinas Note at http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33
_09/chn_2011_re_phl_e.pdf.
29http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_2011_re_
phlchn.pdf.
30Vietnam Signals It Wants ExxonMobil Deal Despite China Warning, Agence FrancePresse, July 24, 2008, http://afp.google.com/article/ALeqM5heDDtUDkdvnfpdxGI91D
dmaxA7aw.
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Vietnam immediately responded to Chinas Note Verbal in 2009 by sending
a Note to the CLCS stating Chinas claim for the nine-dotted line on the map
attached to its diplomatic note is null and void as it has no legal, historical and
factual ground.31
Indonesia, in a note sent to the UN on 8 July 2010, to protest the map attached
to Chinas note, stated the so called nine-dotted-lines-map as contained in
the Note...clearly lacks international legal basis and is tantamount to upset the
UNCLOS 1982.32
On 5 April 2011, the Philippines sent a Note Verbal to the CLCS to protest
against Chinas nine-dotted line.33 Following Vietnam and Indonesia, the Philippines rejected the historical basis, if any, of Chinas nine-dotted line. The Note
stated that Chinas claim of the areas outside the geological features in the
Kalayan group and their adjacent water has no basis under international law,
specifically under the LOSC and that with respect to these areas, sovereignty, and
jurisdiction and sovereign rights...appertain or belong to the appropriate coastal
or archipelagic state. At the 44th AMM in July, the Philippines put forward a proposal for establishing a Zone of Peace, Freedom, Friendship and Cooperation in
the South China Sea (ZoPFF/C) by enclaving the disputed maritime zone
in the South China Sea in order to separate these areas from non-disputed area.34
The Philippines also challenged Chinas claim by suggesting China bring the
issue before the International Tribunal for the Law of Sea ITLOS, but met with
no response from the Chinese side. Finally, on 22 January 2013, the Philippines
officially instituted arbitral proceedings against China under Annex VII of the
LOSC 1982 requested that the Arbitral Tribunal issue an Award that, among others, declares that Chinas maritime claims in the South China Sea based on its
so-called nine dash line are contrary to LOSC and invalid.35
Singapore, a non-claimant, also calls on China to clarify its claims in the South
China Sea. On 20 June 2011, comment on visit of Chinese Maritime Surveillance
vessel Haixun 31 to Singapore, MFA spokesperson said that:
31 h ttp://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/vnm_
chn_2009re_mys_vnm_e.pdf.
32Permanent Mission of Indonesia to the United Nations, Communication dated 8 July
2009, Commission on the Limits of the Continental Shelf (CLCS), UN Division for
Ocean Affairs and the Law of the Sea, www.un.org/Depts/los/clcs_new/submissions_
files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf.
33See Philippine Note at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf.
34DFA to propose enclaving of disputed areas in South China Sea, http://www
.gmanews.tv/story/233028/nation/dfa-to-propose-enclaving-of-disputed-areas-insouth-china-sea.
35Philippines Department of Foreign Affairs: Notification and Statement of Claim on
West Philippine Sea, p. 17. http://www.dfa.gov.ph/index.php/downloads/doc_download/
523-notification-and-statement-of-claim-on-west-philippine-sea.
politics, international law and dynamics of recent developments263
We think it is in Chinas own interests to clarify its claims in the SCS with more
precision as the current ambiguity as to their extent has caused serious concerns in
the international maritime community. The recent incidents have heightened these
concerns and raise serious questions in relation to the interpretation of the 1982 UN
Convention on the Law of the Sea (UNCLOS).36
Regarding ASEAN position as a group, in a document of ASEANs Proposed Elements of a Regional Code of Conduct in the South China Sea (COC) between
ASEAN Member States and the Peoples Republic of China agreed by all ASEAN
members before ASEAN Minister Meeting in July 2012 in Cambodia, ASEAN proposed COC as a legal document and one of its objectives is to:
Encourage efforts to clarify disputes in accordance with international law, in particular the UNCLOS. Encourage the parties concerned to work together to define and
clarify the territorial and maritime disputes in the South China Sea, based on international law, including UNCLOS.37
The ASEAN proposed that COC would also bind parties to commit to respect the
exclusive economic zone and continental shelf of the coastal states as provided
for in 1982 UNCLOS.38
The United States
After a long engagement in the Middle East and Afghanistan in a war fighting
against terrorism, the United States has pivoted to Asia to cope with a rising
China. The South China Sea becomes the focal point of Asias rebalancing
strategy adopted by Obamas administration. The shift in US policy is relatively
comprehensive. In terms of politics and diplomacy, the U.S engages deeper in
the Asia Pacific through an increasing number of visits of the President, State
Secretary and Defense Secretary and other high-ranking officials to the region.
In economic term, after ratifying the Free Trade Agreement with South Korea,
the US concentrates on the Trans-Pacific Partnership Agreement (TPP). TPP
has a strategic component of strengthening US relations and other countries to
counterbalance current China-centric multilateral economic mechanisms such
as CAFTA, ASEAN+3. In military term, despite defense spending cuts, the budget for US Pacific Command (PACOM) will not be affected.39 On the contrary,
the US will increase its presence in PACOMs areas of responsibility, including a
36Singapore MFA spokespersons Comments on Visit of Chinese Maritime Surveillance
Vessel Haixun 31 to Singapore. http://www.mfa.gov.sg/content/mfa/overseasmission/
phnom_penh/press_statements_speeches/embassy_news_press_releases/2011/201106/
press_201106_5.html.
37ASEANs Proposed Elements of a Regional Code of Conduct in the South China Sea
(COC) between ASEAN Member States and the Peoples Republic of China.
38Ibid.
39Conversation with author.
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new rotating base in Australia. The US is also planning to move the majority of
its naval forces to the Asia-Pacific region. US Secretary of Defense Leon Panetta
announced at the 11th Shangri-La Dialogue in Singapore that 60% of US warships would be based in the Pacific by 2020.40 In recent years, the US has also
enhanced cooperation with Japan and the Philippines on maritime issues.
At the 17th ARF in 2010, then the US Secretary of State Hillary Clinton declared
its national interests in the South China Sea for the first time; among which were
freedom of navigation, peaceful settlement of dispute, and unimpeded commerce.
The United States also indirectly rejected any argument of historic waters or
historic rights of U-shaped line when Secretary of State Hillary Clinton said,
Consistent with customary international law, legitimate claims to maritime
space in the South China Sea should be derived solely from legitimate claims to
land features.41 Speaking at a hearing of the US Senate Committee on Foreign
Relations, Secretary of State Hillary Clinton said, Chinas claims in the South
China Sea exceed what is permitted by the UNCLOS.42
Dynamics and Implications of Recent Developments in the
South China Sea
From the above discussion, the development in the South China Sea and especially the interrelationships among ChinaASEANUS in the South China Sea
have their own dynamics. Chinas assertiveness in the South China Sea have made
ASEAN claimants countries more concerned about their security and regional stability. In general, the more assertive China in the South China Sea, the less attractive of its soft power in South East Asia. Chinas charm offensive in South East
Asia over the past ten years hasnt gained much major achievements since it was
launched. Although most of ASEAN states have close trade-economic ties with
China, they are still cautious with Chinas intention. On one side, these countries
develop economic relations with China; on the other, they strengthen security
relations with the US and welcome the US military presence in the region. Some
ASEAN countries have enhanced military modernization, sought US supports to
balance power; thus the US has more excuses to engage in the region and influence on the South China Sea issue.
For the US, although competing with China for maintaining leadership position in Asia-Pacific, the US needs to cooperate with China in many aspects, especially in economic field. In that case, the South China Sea gives the US a leverage
40http://www.iiss.org/conferences/the-shangri-la-dialogue/shangri-la-dialogue-2012/
speeches/first-plenary-session/leon-panetta/.
41 Ibid.
42Chinas Sea Claims Excessive, Says US, http://www.mb.com.ph/articles/360386/
chinas-sea-claims-excessive-says-us.
politics, international law and dynamics of recent developments265
to remain engaged in the region and to mobilize support in the region in dealing
with a rising China. The more powerful China becomes, the larger US interests
in the South China Sea will be. The fact that the US reaffirmed its interests and
position on the South China Sea at the 17th, 18th, 19th and 20th ASEAN Regional
Forum (ARF) and the East Asia Summit (EAS) in 2011, and 2012 is a logical development. It is highly possible that in the next few years the US will hold on to this
position, though with varying degrees at different regional forums.
On the other hand, US policy has spill-over effect on position of other countries,
especially countries that have close relationships with Washington. Following the
US, other stakeholders such as Japan, Australia, India and even some European
Unions countries have also expressed concern about developments of situation
in the South China Sea. The South China Sea disputes have become international
issue, being referred by all concerned parties at many multilateral mechanisms
(ARF, EAS, ASEM, and so forth).
On other aspect, Chinas pressure on international oil and gas companies did
not success in preventing them from cooperation with ASEANs countries, but
has paved the way for the US to express views on unimpeded commerce and
be more determined in protecting interests of American energy corporations.
Another consequence of Chinas action is that small countries in South East Asia
have sought to cooperate with international oil and gas companies from major
powers, namely US, Russia, Japan, and India, which cannot be threatened by
China. Consequently, the South China Sea becomes an area of intertwined major
powers interests and more internationalisedthe situation that China doesnt
expect.
More importantly, the South China Sea now becomes one of the main issues
in US-China relations. In the previous years, when the South China Sea issue
was always one of the top priorities in foreign policy of ASEAN claimants, it was
secondary in Chinas policy in comparison with great powers relationships. Once
South China Sea issue is elevated in the priorities of Chinas foreign policy decision-making process, Chinas approach become much more coordinated and centralised. As a result, competition between and independent activities of interests
groupsone of the main reasons of Chinas renew assertiveness since 2009
are manageable.43 Chinas approach toward the South China Sea can be flexibly
adjusted when Chinese top leaders consider it necessary. This development, in
turn, has both positive and negative impact for ASEAN depend on whether Chinese leaders decide to moderate or to harden policy toward the issue.
43In March 2013, China announced plans to restructure the countrys top oceanic administration by bringing Chinas maritime law enforcement forces, currently scattered in
different ministries, under the unified management of one single administration, to
enhance maritime law enforcement and better protect and use its oceanic resources.
See: China to restructure oceanic administration, enhance maritime law enforcement
at http://news.xinhuanet.com/english/china/2013-03/10/c_132221768.htm.
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Development in the second half of 2011 demonstrated a positive side when
China was moderating its South China Sea policy. When Chinese leaders realised negative consequences of its growing assertiveness in the South China Sea,
they adjusted policy with a more comprehensive approach: from developing the
charm offensive second round towards ASEAN countries through economic and
financial measures to restraining from taking further intimidating action on the
sea. For instance, there were no reports on arrests of Vietnamese fishermen or
confiscations of Vietnamese fishing boats as in the previous years eventhough
China continued to declare its unilateral fishing ban in the area north of 12
degrees latitude of the South China Sea from 16 May to 1 August 2011, which
Vietnam had protested as a violation of Vietnamese sovereign rights.44 Chinese
law enforcement vessels also did not conduct new harassments against oil and
gas exploration activities of Vietnam and the Philippines in areas within the
U-shaped line in the South China Sea. China also signed with ASEAN the Guidelines for DOC implementation and with Vietnam the Agreement on basic principles on settlement of sea issues. China also expressed openness for discussing
with ASEAN the formulation of a code of conduct when conditions are ripe.45
One possible calculation when China accepts to discuss with ASEAN the South
China Sea issue is to demonstrate to the international community that ASEAN
and China can work together to manage the disputes and that there is no need
for external involvement in the South China Sea issues.
Scarborough standoff in 2012 with Philippines also confirmed that Chinas
approach become coordinated and centralized, but on the opposite direction.
To deter the Philippines, China also applied a comprehensive and coordinated
approach, from imposing diplomatic pressures, strengthening presence in the
disputed area with hundreds of fishing boats and law enforcement vessels from
different agencies (Marine Surveillance and Fishing Patrol), applying economic
sanction on Philippine agricultural products and promoting international propaganda. In response to adoption of Vietnams Law of the Sea in June 2012,
China also implemented multi-directional measures at the same time such as
issuing diplomatic protect, establishing the prefecture-level city of Sansha to
administer the Paracels, Macclesfield Bank, and Spratly Islands and their surrounding waters in the South China Sea,46 offering oil blocks within Vietnamese
44Chinese unilateral fishing ban in the East Sea is a violation of Vietnamese sovereignty.
http://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns110516112044#Q9866xMQkrnn.
45Remarks by Foreign Minister Yang Jiechi at the ARF Foreign Ministers Meeting. http://
www.fmprc.gov.cn/eng/zxxx/t842183.htm.
46Administrative status of islands raised. http://europe.chinadaily.com.cn/china/201206/21/content_15517602.htm.
politics, international law and dynamics of recent developments267
exclusive economic zone for international bidding,47 deploying a large number of
law enforcement vessels to patrol the South China Sea, and putting the military
forces of Sansha city under the combat-ready position. In relations with ASEAN,
to influence on the chair of the year 2012Cambodiaand on ASEANs internal discussions, President Hu Jintao visited Cambodia just before the opening of
ASEAN summit in April. Defense Minister Liang Guanglie also paid an official
visit to Cambodia during the 6th ASEAN Defense Ministers Meeting (ADMM) in
May 2012, informally turning the ADMM into ADMM+1.
As a result of applying a comprehensive, coordinated and centralised approach,
China policy in the South China Sea can be characterized as a policy aiming for
expanding but low intensified dispute in the South China Sea. That policy is
a combination of: increasing presence and control of civilian and paramilitary
force in all areas within the U-shaped line; refraining from using military forces;
offering economic intensives to ASEAN countries, especially to non-claimants;
and actively pushing diplomatic pressure to prevent ASEAN from forming a common position on the South China Sea. Acting by that way, China is incrementally
limiting the possibilities of US and other powers to engage into the South China
Sea issue.
The US is now facing a dilemma. The fact that the US has not yet joint Convention on the Law of the Sea is limiting its legitimacy to criticise other countries
for not respecting the maritime law. The increasing presence of the US naval
forces doesnt have significant impact on the contest for control of resources in
the South China Sea, which is mainly among law enforcement vessels from lateral
countries. The fact that China has successfully driven away the Philippine and
established its permanent presence in Scarborough Shoal despite US efforts to
mitigate the tension showed the limit of US involvement. On diplomatic arena,
ASEAN countries now have to take more into account Chinese concern than the
USs concern. On multilateral diplomacy, the effect of Clintons remark at ARF 17
is not as strong as it used to be, since the US hasnt expressed any new viewpoints
in recent speeches at regional forums.
ASEAN, after the Phnom Penh incident at ASEAN Ministerial Meeting 45 in
July 2012, is facing biggest challenge since the end of the Cold War. ASEANs centrality in regional security architecture and its role in managing the South China
Sea disputes can be limited due to intra-bloc division and external impacts
especially in the context of increasing China-US rivalry in South East Asia.
47CNOOC: Notification of Part of Open Blocks in Waters under Jurisdiction of the Peoples Republic of China Available for Foreign Cooperation in the Year of 2012. http://
en.cnooc.com.cn/data/html/news/2012-06-22/english/322127.html.
268
tran truong thuy
Conclusion
The situation in the South China Sea for the time being is imbalanced when China
is dominating on the sea and on diplomatic arena, US is still seeking approach to
deal with a rising China, ASEAN is being fragmented, structurally can be hijacked
by any chair or even a single member and extra-regional powers have huge interests but limited role to play.
However, it is possible that what China has gained is just temporary; in the long
term what China may lose might be much more than what it may win. Chinas
actions in the South China Sea has long been regarded as the test case whether
China pursuits the policy of peaceful rise, respects the international law, or it
wants to revise the rules. However, that China allowed China National Offshore
Oil Cooperation (CNOOC) offering for international bidding 9 blocks within 200
nautical miles of Vietnamese exclusive economic zone was clearly a precedent
of disregarding international law. Facing with situation when international law
are being disregarded and ASEAN centrality role is impacted, ASEAN countries
have no choice but to raise more frequently their common concern in regional
forums.
Regarding the US, the South China Sea is not only relating to its strategic interests, but also to the credibility of the US power. But if China continues to use
non-military measures on the sea and apply economic and diplomatic measures
to influence on ASEAN countries policies, the US will not be able to interfere and
influence on the settlement of South China Sea issue. What the US can respond
to Chinas strategy is adding other elements to its strategy such as paramilitary
and economic elements, which the US has neglected over years.
To protect their interests, other powers also have to pay more attention to the
SCS, voice concern on regional diplomatic forums and promote maritime security
cooperation.
Since Beijing can formulate a coordinated and centralized policy on South
China Sea issue, there is possibility that China will put this issue in a broad picture of its overall foreign policy. When China has to care about other interests in
relations with the US, and ASEAN than specific maritime interests in the South
China Sea, one can expect a more moderated Chinese approach in the South
China Sea.
Chapter eleven
The Notion of Dispute in the Contemporary International
Legal Order: Qualification and Evidence
Zhang Xinjun*
Introduction
Article 2 paragraph 3 of Charter of the United Nations1 (Charter) stipulates that
Member States have an obligation to settle their international disputes by
peaceful means.2 At the same time, Article 33 of the Charter further elaborates
the means of peaceful settlement of disputes: when the continuance of any dispute is likely to endanger the maintenance of international peace and security,
parties shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.3 This obligation is said to
accompany active efforts by parties to the dispute with the view to settling the
disputes between them.4
In maritime boundary disputes, it is well recognised that the sine qua non of
a delimitation is the basic and often unarticulated premise that there must be
an area over which each party in dispute claims sole jurisdiction5indeed, a
disputed area with overlapping claims of entitlements.6 The same premise exists
*Associate Professor and Deputy Director, Centre for Law of the Sea Study, Tsinghua
University, China. The writing of this chapter was supported by NCET Program.
1 Charter of the United Nations, opened for signature 26 June 1945, in force 24 October
1945, 1 UNTS XVI. (Charter).
2Ibid., article 2(3).
3Ibid., article 33(1).
4Bruno Simma (ed.), Charter of the United Nations: a commentary (Oxford/New York:
Oxford University Press, 1994), 508.
5Malcolm D. Evans, Relevant circumstances and maritime delimitation (Oxford: Oxford
University Press, 1989), 64.
6Evidently any dispute about boundaries must involve that there is a disputed marginal
or fringe area, to which both parties laying claim... See North Sea Continental Shelf
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zhang xinjun
in the transitional period for provisional arrangements7 as well as for the obligation of mutual restraints during transitional period pending the agreement
for a final delimitationobligations stipulated in Article 74, paragraph 3 and
Article 83, paragraph 3 of the United Nations Convention on the Law of the Sea
(LOSC)8 only apply in a disputed marine area. In other words, a State could be
free to engage in shelf exploitation in areas proximate to its coast, far removed
from areas under dispute with other States and such exploitation shall not be
intervened by other State.
All these obligations live on the notion of (international) disputes. The present author will take (international) dispute under Article 2, paragraph 3 and
Article 33, paragraph 1 of the Charter to mean the broad sense of dispute in international law. However, under the Charter, apart from the intention to distinguish
dispute from situation under Article 34 of the Charter, what is a dispute itself
is not defined either in the text or through the context of the Charter.9
Now, how should we understand the notion of dispute in international law?
States usually have different views on certain issues. Despite the fact that there
is no definition for dispute under the Charter, it does not mean that all differences would necessarily constitute a dispute in international law. In practice,
states sometimes opt to stir up trouble or provoke with the intention to create
disputes in order to obtain a favourable position in future negotiation, however, the existence of a dispute shall be identified in an objective basis. Moreover, states also sometimes unilaterally deny any presence of disputes, refusing to
settle disputes peacefully through negotiations, consultations and so forth. This
happens more often in the case where a party has effective control over an allegedly disputed territory.
Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (1969) ICJ Reports 3, 23 paragraph 20.
7Rainer Lagoni, Interim Measures Pending Maritime Delimitation Agreements, American Journal of International Law, 78/2 (1984): 356.
8United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
in force 16 November 1994, 1833 UNTS 3.
9Simma (ed.), Charter of the United Nations, 102, 507. In the Namibia case (advisory opinion), the International Court of Justice took the view that the enquiry questions submitted by the Security Council were only related to the situation and not the dispute.
The Court refused to accept the reasoning of the defense by South Africa claiming that
there was a dispute concerning the Namibia issue mainly due to South Africa not having
presented a timely defense when the Security Council was discussing situation concerning Namibia. See, Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970) (Advisory Opinion), (1970) ICJ Reports, 2223, paragraph 25. However, the Court
did not determined the criteria for in distinguishing between situation and dispute
and it seemed that the boundary between situation and dispute was not very strictly
drawn.
notion of dispute in the contemporary international legal order271
Whether a dispute exists or otherwise, is by itself disputed. When coming up
with issues in a specific dispute, the first issue would be whether it is a dispute in
international law. The notion of dispute in international law needs to be clarified as
a minimum requirement for an international legal order in the context of Article2,
paragraph 3 and Article 33, paragraph 1 of the Charter (the broad sense of dispute
in international law). The present study on the notion of dispute in international
law mainly relates to the following three issues: 1) what is the broad sense of dispute in international law, which States are obliged to settle by peaceful means,
as prescribed in Article 2, paragraph 3 and Article 33, paragraph 1 of the Charter?
When talking about dispute in the context of international law, what relationship
does it have with the generic term of legal dispute, whose concept has been developed mostly by jurisprudence in municipal law? 2) What are the qualifications of
and criteria for the notion of dispute in international law? 3) What evidence is
required there for the objective being of a dispute in international law?
A General Survey: Legal Disputes and the Notion of a Dispute
in International Law
Various conflicts and disagreements happen in our societies. When brought into
the judicial forums, they often need to be formatted into some legal issues and
qualify themselves to be legal disputes before the matter can be adjudicated.
The generic term of legal dispute, by its very nature, falls into the study of the
notion of dispute in international law, supposedly in an international society.
Generally, a legal dispute can be understood from both the procedural and
substantive aspects. The procedural aspect is addressed firstpartially because
the international law literature on the notion of disputes in the international
context has largely focused on the procedural aspects,10 probably due to the influence of the municipal law analysis paradigm.
Speaking of legal disputes under municipal law, of course, the discussion
on judicial procedural matters is inevitablethe two are too closely linked in
municipal law. Before dealing with the substantive issues of a matter, the courts
will have to consider whether a certain dispute involves legal issues and hence
constitutes a legal dispute which is suitable to be dealt with by the judiciary. In
the meantime, various objections (preliminary objections) could be raised on the
issues of jurisdiction and admissibility by the respondent, and the courts need to
handle these procedural issues. However, from the present authors point of view,
10See Ian Brownlie, The Justiciability of Disputes and Issues in International Relations,
British Year Book of International Law, 42 (1967), 123143; Hersch Lauterpacht, The
Doctrine of Non-Justiciable Disputes in International Law, Economica, 24 (1928), 277
317; Robert Yorke Hedges, Justiciable Disputes, The American Journal of International
Law, 22/3 (1928), 560565.
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zhang xinjun
study from procedural aspects contributes little in understanding the notion of a
dispute in international law since it is neither sufficient nor necessary.
Jurisdiction refers to the power or competence of the courts while admissibility refers to whether the nature and condition of a particular dispute is suitable
for the courts to adjudicate. In terms of the power or competence of the courts,
municipal law, due to the different establishments of socio-economic settings in
different countries, particularly the different regimes of separation of powers
in that domestic system, would depend on legal disputes or legal issues in
order to delineate the powers of the judiciary, the legislature and the executive,
and also to limit the power and competence of the judiciary.11
Even though it is within the power and competence of the judiciary, the courts
will also set up judiciary policies based on their understanding of the characteristics of the judicial functions within a specific socio-economic context of the
society. These judiciary policies will enable the courts to decide whether to exercise their jurisdiction power, for example the courts may refuse to accept certain
categories of disputes, on the basis of political questions doctrine, locus standi,
ripeness or mootness.
In summary, the link between legal disputes and issues of jurisdiction and
admissibility in municipal law has raison dtre for the sake of its own internal structure, the linkage is further subject to conditions of that domestic legal
system.
These reasons concluded in domestic cases are not found in the international
legal order. The fundamental structure of the international legal order is based
on a loose system of sovereign States of equality de jure. In the international
legal order, there is nothing as such that can be found in municipal legal orders
of many countries which places an overriding position on legislature, executive
and judiciary over the subjects of that legal order. Even though some international organizations are regarded as comparable to entities in the municipal legal
orders, as functions of legislature, executive and judiciary can be found entrusted
to some of them (for example, the United Nations), it is undeniable that this sort
of structure is more or less a simulation of a municipal one and is far from being
self-sustained.
Therefore, with respect to jurisdictional issues concerning international adjudication or arbitration (the powers and competencies of international tribunals),
we do not need to employ the form of legal disputes (or referred to as dispute
in international law) to differentiate and define judiciary from other powers and
11As article 3, section 3 of the United States Constitution stipulates that the judicial powers shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made under their Authority...... Article 3 of Japans
Court Act stipulates that Courts shall, except as specifically provided for in the Constitution of Japan, decide all legal disputes, and have such other powers as are specifically
provided for by law.
notion of dispute in the contemporary international legal order273
organs, since there simply is no such centralized power structure existing in the
international legal order.
Under the framework of the United Nations, Article 36, paragraph 3 of the
Charter provides that, in making recommendations under this article, the Security Council should also take into consideration that legal disputes should as a
general rule be referred by the parties to the International Court of Justice (ICJ)
in accordance with the provisions of the Statute of the Court.12 It should be recognized that the abovementioned article intends to highlight the vital function
of the International Court of Justice as the United Nations main judicial body
to resolve disputes peacefully provided for in Chapter 6 of the Charter.13 From
the view of the present author, the said article does not intend to differentiate and define the power and competence of the Security Council and that of
the International Court of Justice through legal disputes in the same article. The
following are the reasons:
First, the Security Council has a very wide discretion in the peaceful settlement
of disputes. It could refer disputes which are suitable to be adjudicated by the
International Court of Justice to that Court. However, the Security Council has
no such obligation to refer such matters to the ICJ.14
Second, the jurisdictional power and competence of the ICJ do not rely on
legal dispute in the said article, submitted by the Security Council after exercising its discretion. In fact, at the present stage, the basis for jurisdiction is the
consent of the parties to a dispute; it has nothing to do with any legal dispute
to be defined.15 When a dispute falls within the said jurisdictional power, the
International Court of Justice could nevertheless, via Article 38 paragraph 1 of
the Statute, consider it as a legal dispute.16
Finally there are doubts as to the practicability of the difference between
the legal dispute herein and the dispute referred to under Article 33 of the
Charter.17
Similarly, when jurisdiction has been established by the consent of parties,
the International Court of Justice would consider the issue of admissibility in
12Charter, article 36(3).
13Simma (ed.), Charter of the United Nations, 543.
14Ibid., 545. The wording in the provision refers to should rather than shall, therefore
not seen as obligatory.
15As stipulated under article 36, paragraph 1 of the Statute of the International Court of
Justice, (opened for signature 26 June 1945, in force 24 October 1945, 1 UNTS XVI):
The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force. (emphasis added) Only under the optional compulsory jurisdiction clause, the scope of legal disputes is limited to four categories. See article 36,
paragraph 2 of the Statute of the International Court of Justice.
16Simma (ed.), Charter of the United Nations, 545.
17Ibid., 544.
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the preliminary phase. It has already refused to adjudicate cases which had been
moot,18 and in other cases the Court decided that political aspects of a dispute
would not prevent the Court from exercising its judicial function.19 However,
these sporadic decisions on admissibility issues by the International Court of
Justice would be insufficient for us to observe whether the Court has in a specific
period of time formed a distinct judicial policy to refrain its exercise of jurisdiction. From the present authors point of view, international society has yet not
furnished relevant conditions for the Court to form such judicial policy, let alone
the other tribunals.
Only in case of advisory opinions does the Statute of the International Court of
Justice explicitly provide that the establishment of jurisdiction must be related to
a legal question.20 After the confirmation of its jurisdiction on advisory opinion,
there is still a need to go through a stage of evaluating on the basis of judicial
propriety whether the case would be admissible.21 The jurisprudence of compelling reasons (cases are generally not refused unless there are compelling reasons)
is often employed by the Court to exercise its discretion as to whether to provide
advisory opinions after jurisdiction being established.22 However, in the view of
the present author, the practice of the International Court of Justice in advisory
opinion reflects a special structure within the United Nations framework which
requires coordination and cooperation by its internal organs in order to perform
its functions (the International Court of Justice being the main judicial body
within the system of the United Nations).23 It does not reflect the general structure
of todays international legal order, and it could not assume that judicial function
has been refrained in a proper manner.
Even if we limit the study of disputes in international law exclusively to procedural aspects, that study seems not necessarily to be directed by analogy of
18 Northern Cameroons Case (Preliminary Objection) (1963) ICJ Reports, 3234; Nuclear
Tests (Australia v France) (1974) ICJ Reports, 270272.
19 US Diplomatic and Consular Staff in Tehran (United States v Iran) (1980) ICJ Reports,
1920; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States) Jurisdiction of the Court and Admissibility of the Application, (1984) ICJ
Reports, 439440.
20The Court may give an advisory opinion on any legal questions, see article 65, paragraph 1 of the Statute of the International Court of Justice (emphasis added by the
author). It is very clear here that the Court exercises its power on its discretion.
21 West Sahara Case, (1975) ICJ Reports, 2425.
22Late views on this point, see, Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) General List
No. 141, International Court of Justice, 22 July 2010, paragraphs 2948, http://www.icjcij.org/docket/files/141/15987.pdf.
23Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase (1950)
ICJ Reports, 72; Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) nothwithstanding Security Council Resolution 276 (1970)
(1971) ICJ Reports, 27; West Sahara Case, 21.
notion of dispute in the contemporary international legal order275
municipal procedural issues. The reason is clear as stated in the previous paragraphs: the structures of the two types of societies and the conditions in the two
legal systems are different, and therefore would lead to different raison dtre for
the existence of legal disputes in each of them. Generally, in a municipal law
system, the issue of what is a legal dispute is a matter for procedural defence in
a court, and it directly links to issues of jurisdiction and admissibility. Its answer
originates from the delineation of powers in the mechanism of dispute settlement in that municipal legal system between the judicial and other competent
organs (jurisdiction). It also depends on a judicial policy of self-restraint by judicial powers in that system (admissibility). However, in a horizontal structure of
international society constructed by sovereign States, the jurisdiction of adjudication or arbitration is determined on the basis of consent by the sovereign
states. On the issue of admissibility, the international society is not yet prepared
with conditions that may help international judicial organs to set up a judicial
policy of self-restraint.
Furthermore, the broad sense of dispute in international law proposed in this
chapter by referring Article 2, paragraph 3 and Article 33, paragraph 1 of the Charter is to link the notion of dispute to obligations of peaceful settlement. When
a dispute exists objectively, States concerned have a duty to enter into peaceful
settlement proceedings, including judicial settlement. It would be meaningless
to discuss the issue of dispute in international law merely from the procedural
aspects when the States concerned have agreed to an international adjudication
or arbitration procedure. To raise the question of legal issue or legal dispute
after parties have given consent to jurisdictions of those procedures, and then to
consider whether they are justiciable disputes or otherwise suitable for the judicial procedure, this way of thinking simply provides an excuse for States which
are not ready to consent to jurisdiction or for those which have given prior consent to exclude jurisdictional obligations at the later stage.24
In the international legal order, the broad sense of dispute in international law
is not necessarily to be defined exclusively as procedural issues (jurisdictional
and admissibility issues), though they are key issues in international judicial proceedings. It is also insufficient to limit the discussion on the notion of dispute to
such process, since the settlement of such disputes does not limit to such proceedings, but by a variety of options like negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement and other peaceful means of their choice
(Article 33, paragraph 1).
If the procedural issues in the study of dispute in international law are not
sufficient and necessary, it may be necessary for us to look at the dispute from
substantive aspects. The substantive aspects of a legal dispute refer to whether
24H. Lauterpacht, The Doctrine of Non-Justiciable Disputes in International Law, Economica, No. 24 (December, 1928), 290292.
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there are any confrontations in relation to those specific rights, obligations and
legal relations between the parties concerned; these confrontations could reach
a final resolution by the application of law. In a word, the kind of confrontation
in legal disputes is limited by conditions established in substantive arguments
(partys rights, obligations and so forth); only those satisfied by these conditions
would then be the object of application of law (municipal law refers to judicial
procedure).
Could the broad sense of dispute in international law be understood from substantive aspects? To answer the question, there is a need to reiterate that the
purpose of this article to study notion of dispute in international law is to help to
determine the obligations of peaceful settlement of disputes by the States. Since
such obligations arise and only arise when a dispute becomes an objective existence, there is a need to find qualifications of and evidence for the existence of
such disputes.
In daily life, there are of course full of unfounded or extreme claims and
demands, political accusations made by ideological differences, fabricated allegations or provocations between States. Though they also may lead to confrontations and catch our eyes in international relations, common sense will tell us that
they will not trigger any obligations of peaceful settlement. Therefore, we will
not treat this kind of confrontation as dispute in international law. In this sense,
dispute in international law is not equivalent to any confrontation but only to
confrontation qualified under certain conditions.
Under what conditions can confrontation be qualified as a dispute in international law? There may be multiple answers. Under the framework of the Charter,
there is one definite answerlegal dispute understood from substantive aspects,
which refers confrontation of specific rights, obligations and legal relationship
under international law between the parties concerned. A number of reasons for
this can be suggested.
Firstly, Article 2, paragraph 3 of the Charter states the purpose of settling
international disputes by peaceful means is such that international peace and
security, and justice are not endangered.25 The word justice was inserted into
the Dumbarton Oaks Proposals from lessons leant in Munich Agreement of 1938,
which was the product of the policy of appeasement of Nazi German extreme or
fabricated claims.26 If the purpose of the obligation to peaceful settlement of disputes is to fulfil an ultimate end of law and justice, the object of such obligation
will not exclude those confrontations concerning specific rights, obligations and
legal relations in international law.
Secondly, as for the obligations of peaceful settlement of disputes, States have
freedom of choice on the means to settle disputes, and not necessarily to be
25Charter, article 2(3).
26Simma (ed.), Charter of the United Nations, 101, 105.
notion of dispute in the contemporary international legal order277
l imited to judicial process. However, dispute settlement in the UN framework
should be done in conformity with the principles of justice and international
law.27 On the one hand, in the process of application of international law, negotiations, mediations, conciliations etc. are all important routes for the implementation process, and judicial procedure may not be the default one.28 On the other
hand, no matter which means a party concerned chooses for settling its dispute,
those applying the principle of justice and international law must include legal
dispute constructed by substantive arguments.
Finally, in state practice, most of disputes are settled by direct talks between
States, normally asserting that they negotiate in accordance with international
law. In the same token, when a party refuses to talk, normally it would maintain
that there exists no dispute and thus it has no obligation to talk. In doing so, it
would also dismiss any arguments from its counterparts by saying that they simply lack basis in international law.29 It indicates that states in their auto-interpretation will limit the scope of obligation to negotiate to legal dispute containing
substantive issues.
Nevertheless, it must be pointed out that confrontation on the issue of the
objective existence of dispute in direct talks is still a preliminary issue before
talks can enter into merits of such a dispute. They are relevant but involve different level of arguments.
Qualification of and Criteria for the Notion of Disputes
in International Law
As to substantive aspects, PCIJ in the Mavrommatis Palestine Concessions case
correctly pointed out that a dispute is a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons.30 It seems to be clear
here that a legal dispute can be formatted by differences either in law or in fact.
Some landmark cases concerning critical date offer us examples in the study
of dispute from substantive aspects. Critical date normally means the time a legal
dispute is regarded as being occurred.31 In the ongoing case study concerning
27Charter, article 1(1).
28Onuma Yasuaki, ICJ: An Emperor without Clothes? in Nisuke Ando, Edward McWhinney and Rudiger Wolfrum (eds.) Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer
Law International, 2002), 195203.
29For example, the position of Japan on the issue of Diaoyu/Senkaku Islands. See Basic
Views on the Sovereignty of the Senkaku Islands, available at, http://www.mofa.go.jp/
region/asia-paci/senkaku/senkaku.html.
30Mavrommatis Palestine Concessions, Judgment, No. 2, 1924, PCIJ Series A, No. 2, 11.
31...the point of time falling at the end of a period with which the material facts of a
dispute are said to have occurred. L. F. E. Goldie, The Critical Date, The International
and Comparative Law Quarterly, 12 (1963): 1253.
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critical date, the focus is not on the question when legal disputes were established, but rather on the question how disputes are formed.
Attention can first be turned to a dispute resulting from differences in law. In
the well-known Palmas arbitration, Spain discovered the island of Palmas in the
16th century. Thereafter, the island was occupied and under effective control by
the Netherlands for a long and uninterrupted period of time. In 1898 after the
Spanish-American war, Spain ceded the Philippines to the United States through
the Treaty of Paris. The U.S. believed that Island of Palmas is an integral part
which was ceded under the treaty. In 1906, when the U.S. officials visited the
island, they found they were greeted by flags of the Netherlands.32 The formation
of the dispute, on the one hand was territorial claims by the Netherlands based
on occupation, and on the other hand claimed by the U.S. a ceded island which
title can be established by the Spanish discovery. The dispute of the sovereignty
over the Island of Palmas between U.S. and the Netherlands was as a result of
differences in law, i.e., the Netherlands occupation vs. the U.S. (inherited from
Spain) discovery. This is an ideal example that straight-forward differences in
law constitute a perfect dispute.
Differences in law may be more complicated in real time. With regard to formation of a dispute, differences in law are more or less concerning interpretation
of a specific rule of international law, be it a conventional or customary. A prima
facie existence of rules in the corps of international law relied on for making
claims is a preliminary requirement for further interpretation. However, to be
qualified as a dispute, interpretive claims must be made in good faith, which is
explicit in case of treaty interpretation.33 Again in the case of treaty interpretation, good faith is on the one hand understood as a still more exacting and
extra-textural concept. It excludes, for example, the exploitation of an advantage
derived from a literal but mutually unintended reading of a treaty, a reading that
might result in one of the parties gaining unfair or unjust advantage.34 On the
other hand, the principle of good faith is more or less associated with common
sense and rationality;35 they are even considered to be the same thing.36 Good
32Island of Palmas Case (Netherlands v United States) (1928) XI RIAA, 836.
33Article 31 of the Vienna Convention of the Law of Treaties (General rule of interpretation)
stipulates that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose. Vienna Convention of the Law of Treaties, opened for signature
23 May 1969, entered into force 27 January 1980, 1155 UNTS 331.
34Anthony DAmato, Good faith, in Rdiger Wolfrum (ed.), Max Planck Encyclopedia of
Public International Law, Volume II (Oxford: Oxford University Press, 2012) 600.
35Georg Schwarzenberger, Myths and Realities of Treaty Interpretation: Articles 2729
of the Vienna Draft Convention on the Law of Treaties, Virginia Journal of International
Law, 9 (19681969): 10.
36Shabtai Rosenne, Interpretation of Treaties in the Restatement and the International
Law Commissions Draft Articles: A Comparison, Columbia Journal of Transnational
notion of dispute in the contemporary international legal order279
faith sometimes also asks for consistency.37 In the case of a dispute formulated
by differences in law, not the fine points but arguments with prima facie basis
made in good faith will be sufficient.
Secondly, we consider differences in facts. A dispute sometimes could also
arise either with the same legal basis as claimed, or even with unclear legal basis,
but divided on factual issues.
In the Right of Passage case, the International Court of Justice was of the opinion that minor incidents before 1954 did not lead the Parties to adopt clearlydefined legal positions as against each other. The conflict of legal views between
Parties [...] includes in its definition of a dispute had not yet arisen.38
A recent case decided by the International Court of Justice concerning territorial and maritime dispute (Nicaragua v Honduras) is another example. The case
involved the territorial dispute over the islands as well as the dispute of maritime
boundary. With regard to the maritime boundary dispute, Honduras claimed that
until the year of 1979 when the Sandinista Government came to power, Nicaragua
showed no interest in the cays and islands north to the 15th parallel. Yet, after
that, the new Government started to harass against Honduran fishing vessels
north of the 15th Parallel. Therefore, Honduras maintained that 1979 to be the
critical date.39 Nicaragua in contrast argued that the critical date on the dispute
of maritime delimitation as well as on the territorial status of islands was 1977,
when the Parties initiated negotiations on maritime delimitation, which implied
to encompass dispute over the islands.40 However, the Court took note of two
incidents involving firing and seizure of Honduran fishing vessels by Nicaraguan
coast guard vessels followed by protests from Honduras based on the claim of
a delimited line (and believing that the fishing boats did not exceed it) and the
denial by the Nicaragua the existence of such a line. The Court believed that it is
from the time of these two incidents that a dispute as to the maritime delimitation could be said to exist.41
Law, 5 (1966): 223. [International jurisprudence contains many references to good
faith in interpretation, or reasonableness (which is much the same thing)]
37Francis G. Jacobs, Varieties of Approach to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of Treaties before the Vienna Diplomatic
Conference, International and Comparative Law Quarterly, 18 (1969): 333. [(good faith)
it might be taken more narrowly, as precluding a State from exploiting an ambiguity
in the text or a genuine misunderstanding between the parties. Alternatively, more
broadly, a State might be precluded, in certain circumstances, from advancing an interpretation contrary to its own previous practice, or contrary to the shared expectations
of the parties.]
38Case concerning Right of Passage over Indian Territory (Portugal v India, Merits), (1960)
ICJ Reports, 34.
39Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in
the Caribbean Sea (Nicaragua v. Honduras) (2007) ICJ Reports, 698, paragraph 120.
40Ibid., paragraph 121.
41 Ibid., 700, paragraph 131.
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On the question of what facts constitute a dispute, the decisions in the two
cases mentioned above are quite in accordance with the traditional thinking
which adds credits to acts accompanied with certain degree of physical enforcement measures indicating that a State is pursuing the claims in a practical way.
Claims kept up on paper, as warned by Sir Gerald Fitzmaurice, cannot generate
a critical date.42 Indeed, as far as the word dispute is concerned in Article 2,
paragraph3 of the Charter, it is believed that a certain degree of gravity may
certainly constitute the raison dtre of Art. 2(3).43 Furthermore, Article 33, paragraph 1 of the Charter has directly linked dispute with likely to endanger the
maintenance of international peace and security.44
Therefore, in the two cases discussed, not the minor incidents or merely protests but acts such as blockade and refusal of passage (Right of Passage case), or
arrest and detention (Nicaragua/Honduras case) may be viewed as material facts
that is determinant for the constitution of a dispute. In a word, symbolic action
is not decisive in judging the formation of a dispute.
Nevertheless, modern international law prohibits use or threat of use of force
in international relations. This rule may necessarily require States to reconsider
employing physical enforcement measures when pursuing their claims. But if
the traditional thinking still works, states (as well as tribunals) will encounter a
dilemma: to qualify a dispute and therefore subject it to the obligation of peaceful settlement, States have to consider to employ certain level of violence for
that purpose, which in the meantime shall not violate the rule prohibiting use or
threat of use of force. The level of violence shall therefore be carefully evaluated
case by case in order to reach a point of balance in a spectrum from paper protest
on one end and use or threat of use of force on the other opposite end.
An interesting case well addressing the dilemma was the most recent case
concerning territorial dispute between Malaysia and Singapore decided by the
International Court of Justice on 23 May, 2008. In that case, Singapore and
Malaysia agreed that the Singapores first protest on 14 February 1980, in response
to Malaysias publication of the 1979 map though which Malaysia made a formal claim to the island, crystallized the dispute over Pedra Branca/Pulau Batu
Puteh. The Court simply endorsed such a view,45 without further investigation
on possible incidents accompanied by physical enforcement measures by either
of the Parties. As for the dispute over Middle Rocks and South Ledge, the Court
decided that February 6, 1992 was the critical date, because that was the first time
42Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice,
19514: Points of Substantive Law, Part II, British Yearbook of International Law, 32
(19551956): 27.
43Simma (ed.), Charter of the United Nations, 104.
44Charter, article 33(1).
45Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and
South Ledge (Malaysia v. Singapore) (2008) ICJ Reports, 28, paragraphs 3334.
notion of dispute in the contemporary international legal order281
Singapore included the issue concerning territorial status of Middle Rocks and
South Ledge in the bilateral negotiations.46
When comparing this case with the previous ones, it seems that the Court,
when evaluating factual factors in deciding the formation of dispute, has reconsidered the balance by shifting the focus from muscular confrontation to less
violent act, possibly even admitting paper protest under certain circumstance.
If it is true, then the threshold for differences in fact would be greatly lowered.
The Evidence
What can be relied by a State in advocating for an objective existence of a dispute? To answer this question, it must be emphasised again that the question on
the existence of a dispute is a preliminary one; it must be separated from the substantive issues concerning the merits of the dispute, although there seems to be
inextricable links between the two as being discussed in the previous section.
For a State that advocates for the existence of a dispute, it would certainly be
more reflective of the existence of the dispute if the claims of substantive issues
on the merits of the dispute are made solid. However, it can also be concluded
from discussion in the previous section that the threshold for the formation of
a dispute is much lower than the benchmark for arguing the substantive issues
of the dispute in the merits. Although the preliminary issue of whether there is
existence of dispute is difficult to separate its essential from issues concerning
merits, the former claim does not request the equal depth and accurateness as
those required for making arguments on merits. Accordingly, the evidences supporting the two levels of augments would be different. What can be said that the
confrontation in substantive issues has reached the threshold for formation of
a dispute, and therefore can be taken as evidences for evaluating the objective
existence of the dispute?
Firstly, evidence can be found in the practice of the State who denies the existence of a dispute, especially by reference of its contradictory or inconsistent
positions. These may include but not limited to: 1) self-contradictory positions
to a specific dispute, either found in speeches of high-rank officials whose acts
attributing to the State,47 or other state practice such as treaty making or treaty
interpretation with regard to that specific dispute. 2) A long period of silence to a
provoked assertion of existence of a dispute is detrimental for those deny of such
a dispute; 3) double standard toward disputes with same nature and structure
46Ibid., paragraphs 3536.
47The Legal Status of Eastern Greenland (Norway v. Denmark), (1933) PCIJ Series A/B
No. 53, 7071; Nuclear Test Case, 269 paragraph 49 (Australia); 474, paragraph 51 (New
Zealand).
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zhang xinjun
that a state is a party. For that state, if one is believed to be a dispute, it can hardly
be denied by the same state the existence of the other.
Secondly, evidence includes precedents dealing with disputes with same nature
and structure that have been considered in the jurisprudence. Disputes that can
be settled through international judicial process at least indicate that parties are
of the view that the said dispute satisfies the criteria for the formation of dispute.
Further, by adjudicating the dispute, the courts or tribunals would endorse such
a view that the differences in law or fact have reached the threshold that lead to
formation of dispute. All these mean that a same category of disputes with same
nature and structure are qualified to be dispute in international law. Resorting
to these precedents is feasible under the contemporary international law, particularly for certain categories of disputes such as maritime delimitation disputes
and islands/territorial disputesthe ICJ and other international tribunals have
accumulated a great number of cases.
Thirdly, evidence can be found in the positions of the third parties (including
international organizations) to a specific dispute. A third partys acknowledgement of existence/non existence of a specific dispute is quite reflective. However, several foot notes must be put here: 1) whether such views of international
organizations are binding or not is not important; 2) to be qualified for the use
of evidence, such positions must be consistent.
Finally, Evidence can be found in academic research concerning a specific
dispute or relevant issues. Generally speaking, a conclusion that can be drawn
by each of the study on the merits of a specific dispute is not important. The
hardcore lies on the frequency of the publications of the studies as well as on
the academic platform they have been published. In the latter case, a better quality of the proof for asserting the existence of a specific dispute would be those
studies appearing in peer-review law journals. The reason is rather simple: if a
dispute alone is purely fictitious, study relating to the issue would be pointless
with no value of publication. Footnotes on this type of evidence can also be put
on the following points: 1) language barrier (non-English literatures) leading to
blind spots of selections should be avoided; 2) academic opinions in the State of
denial of the dispute supporting the other claimant State on the merits of that a
particular dispute may add some credits to the latters argument for the existence
of such a dispute.
Conclusions
Under the Charter, Members are obliged to settle their international disputes,
including those with legal nature, by peaceful means. This fundamental duty
of states in international relations can be discharged in various means. In practice,
states tend to settle their disputes by diplomatic talks rather than by resorting to
judicial means. Nevertheless, a common question relating to dispute settlement
is that there could be a dispute as to whether there is a dispute.
notion of dispute in the contemporary international legal order283
When being resorted to a judicial means, the court must settle the first dispute in the preliminary stage in order to answer the jurisdictional or admissibility
questions regarding the second dispute, which may be left to deal with in the
merits. It seems that in diplomatic talks for dispute settlement, there could be a
preliminary talks on whether there is a dispute at all.
The jurisprudence of PCIJ and ICJ, together with some other international tribunals, provides rich resources to the answer of this preliminary question. Rather
than being discussed from the perspective of procedural questionsjurisdiction
and admissibilityin municipal judicial process, the uncentralised international
society, and the lack of compulsory judicial settlement of disputes in international legal order, make such procedural discussion unnecessary and meaningless
in a preliminary talk for dispute settlement by diplomatic talks.
The International Court of Justice recalled from time to time in its decisions,
that the Permanent Court of International Justice stated in 1924 that [a] dispute is a disagreement on a point of law or fact, a conflict of legal views or of
interests between two persons.48 It is equally true for both the first and the second dispute mentioned above. Therefore, in the preliminary stage, the court has
to make decision on the base of law and fact. It involves interpretation of law,
and on their true construction, to the alleged facts and circumstances. However,
the methodology of interpretation that the court employs may be different from
those that shall be employed in merits. Moreover, the court must also draw a line
in between the preliminary phase and the merits, when it is required to examine
the alleged facts and circumstances, bearing in mind that the examination of
facts and circumstances is normally left to the stage of the merits.
In the same token, the present author argue in this article, that in the preliminary talk concerning the existence of the dispute, there must be different level
of arguments from those on merits and shall be supported by different evidence.
Without any pretence at exhausting the variety of arguments regarding the first
dispute, the author proposed certain tests on qualification and evidence to be
deliberated in supporting the existence of the dispute in the preliminary talk.
These tests, however, are very tentative ones. Their effectiveness and significance
needs to be further examined in state practice.
48Mavrommatis Palestine Concessions, 1924, P. C. Z. J., Series A, No. 2, p. 11.
Chapter twelve
Perspectives on East China Sea Maritime Disputes:
Issues and Context
Suk-Kyoon Kim*
Introduction
The East China Sea is bounded on the east by the Kyushu and Ryukyu Islands,
on the south by Taiwan and on the west by mainland China. It is connected
with the South China Sea by the Taiwan Strait and with the East Sea of Korea by
the Korea Strait. The countries bordering on the East China Sea include China,
Japan, Korea, and Taiwan.
The maritime disputes in the East China Sea have increasingly proved to be a
flashpoint between China and Japan, as it was a case in the recent conflict over
a collision of a Chinese fishing boat with a Japan Coast Guard ship. On 8 September 2010, the Japan Coast Guard arrested the captain of a Chinese fishing boat
within 12 nautical miles of the Senkaku (Diaoyu)1 Islands for a charge of obstructing officers on duty by ramming two Japanese Coast Guard ships.
This episode sparked a diplomatic row between the two countries and threatened to impact on every aspect of the two countries relations, especially trade,
in which the two countries have increasingly been interdependent over the past
decades.2 The diplomatic conflict ultimately came to an end with the release of
*Commissioner General, Korean Coast Guard, Korea. The opinions expressed in this presentation are solely the views of author and are not intended to reflect the positions of
the Korea Coast Guard nor the Korean Government.
1 Hereinafter it is referred to as Senkaku only for simplicity, excluding any political or territorial implications. The Diaoyu dao is known in Taiwan as Tiaoyutai. There are some
differences in English spellings of the Islands, depending on literatures and writers. It is
believed that they are the differences as to how to translate Chinese sounds into English.
Senkaku means pinnacle house, in Japanese, while Diaoyu means fishing platform
in Chinese.
2The article China-Japan economic, trade ties have great potential to tap, http://
news.xinhuanet.com/english/2008-05/04/content_8104901.htm): According to Chinas
Ministry of Commerce two-way trade between the two countries climbed by 13.8%
286
suk-kyoon kim
the Chinese captain by Japan in consideration of future relations of Japan and
China.3 This case arguably demonstrates how volatile maritime disputes are,
and how they can adversely affect the two countries relations, which are competing in many respects.
The East China Sea maritime issues, such as maritime boundary delimitation,
ownership of the disputed islands, exploitation of natural resources, and security
of sea lanes of communication, do not exist separate but intrinsically are interrelated to each other, to the extent which is described as mixed disputes in character. Furthermore, maritime disputes over those issues remain a source of conflicts
and increasingly have become a key determinant in international relationships in
the post Cold War period in East Asia.
This chapter, in the wake of a diplomatic row caused by the collision of a
Chinese fishing vessel with Japan Coast Guard ships, attempts to examine the
sources and unravel the different aspects of longstanding East China Sea maritime disputes.
Ownership of the Islands and the Delimitation of Maritime
Boundaries
The issues of ownership over the Senkaku Islands and the legal status of the Okinawa Trough lie at the core of maritime disputes between China and Japan in the
East China Sea. Seemingly they are separate but they are nonetheless intrinsically
interrelated, considering in particular the effects to be given to the islands and
the role of troughs in the seafloor in the delimitation of maritime boundaries.
Competing Claims to the Senkaku Islands
The Senkaku Islands, currently under the control of Japan, consist of eight
islandsfive uninhabited islets, of which the largest is about two miles in length
and slightly less than a mile in width, and three rocky outcroppings.4 They are
situated about 120 nautical miles northeast of Taiwan and 200 nautical miles
west of Okinawa.
The history of the Senkaku Islands dates back to the Ming (13681644) and
Ching (16441911) dynasties of China and the Ryukyu kingdom, later annexed
to the Prefecture of Okinawa, Japan in 1879. Throughout this period, a naviga-
y ear-on-year to 236 billion U.S. dollars I 2007. Japan became Chinas biggest exporter
and its fourth biggest export market.
3The Chosun Ilbo (Korean Daily Newspaper), on 24 September 2004, http://news.chosun
.com/site/data/html_dir/2010/09/24/2010092401000.html.
4Choon-ho Park, East Asia and the Law of the Sea, The Institute of Social Science International Studies Series No. 5 (Seoul: Seoul National University Press, 1983), 31.
perspectives on east china sea maritime disputes
287
tion record of Chinese envoys and maps specifying the boundary of the Ryukyu
kingdom have been found, which seems favorable to Chinese claims.5 According to China, Chinese historical records detailing the discovery and geographical
feature of these islands date back to the year 1403. China argues that the Islands
have been administered as part of Taiwan for several centuries and have always
been used exclusively by Chinese fishermen as an operational base.6
Japan argues that it confirmed by surveys from 1885, the Islands showed no
trace of having been under the control of China. The prefectural government of
Okinawa placed the Senkaku Islands and other islets under its jurisdiction in 1896
based on the Japanese Cabinet decision of 1895.7 Since then, the Senkaku Islands
have continuously remained as an integral part of the Nansei Shoto Islands (also
known as Ryukyu Islands) which are the territory of Japan.
Furthermore Japan claims that the Senkaku Islands were neither part of
Formosa (Taiwan) nor part of the Pescadores Islands which were ceded to Japan
from the Qing Dynasty of China in accordance with Article II of the Treaty of
Shimonoseki8 which was concluded in 1895 when China was defeated by Japan
in the Sino-Japanese War in 1894.9 Accordingly the Islands were not included in
the territories that Japan renounced in accordance with the 1951 San Francisco
Peace Treaty after the World War II.10
Under the 1951 San Francisco Peace Treaty, some parts of Japanese territories, including the Nansei Shoto Islands (or Ryukyu Islands), were placed under
U.S. trusteeship.11 When the Nansei Shoto Islands reverted to Japan according to
the 1971 Agreement between Japan and the U.S Concerning the Ryukyu Islands
and the Daito Islands (or the Okinawa Reversion Treaty), arguments arose as to
5Ibid.,
6Ibid.,
7Ibid.
8The
3233.
33.
Treaty of Shimonoseki, Article 2: China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public
property thereon... (b) The island of Formosa, together with all islands appertaining
or belonging to the said island of Formosa. (c) The Pescadores Group, that is to say, all
islands lying between the 119th and 120th degrees of longitude east of Greenwich and
the 23rd and 24th degrees of north latitude.
9The Ministry of Foreign Affairs, http://www.mofa.go.jp/region/asia-paci/senkaku/
senkaku.htlm.
10See The New York Times, In Japan: Its Our Territory, contributed by Satoru Satoh,
Press Secretary of Ministry of Foreign Affairs of Japan, on January 26, 2011. The article
was a response to a column on 20 January 2011, by Nicholas D. Kristofs depiction of
the status of the Senkaku Islands.
11 San Francisco Peace Treaty, Article 3: Japan will concur in any proposal of the United
States to the United Nations to place under its trusteeship system, with the
United States as the sole administering authority, Nansei Shoto south of 29deg. north
latitude (including the Ryukyu Islands and the Daito Islands)...
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suk-kyoon kim
whether the Senkaku Islands belonged to the Nansei Shoto. Japan claims that the
Senkaku Islands had been placed under the administration of the U.S. as part of
the Nansei Shoto south of 29 N, and included in the area for which the administrative rights were reverted to Japan in accordance with the said agreement.12
On the other hand, China argues that when Taiwan and its associated islands
were ceded to Japan in 1895 as a result of the Shimonoseki Treaty, as discussed
earlier, the Senkaku Islands were undoubtedly included in that part of the Chinese territory so ceded. According to China, in 1945, when Japan surrendered
to the Allies, China accepted the return of the Chinese territories, among them
presumably the Senkaku Islands, earlier ceded to Japan.13
In summary, the key questions to be answered with regard to disputes over the
ownership of the Senkaku Islands may include; 1) whether China had established
a title to the Islands and this sovereignty had maintained until Japan launched
its claim; 2) whether the Senkaku Islands were included in all islands appertaining or belonging to the island of Formosa (Taiwan), ceded to Japan under the
1895 Shimonoseki Treaty and renounced by Japan under the 1951 San Francisco
Peace Treaty; 3) whether the Senkaku Islands were included in the Nansei Shoto
Islands, placed under the control of the U.S. and reverted to Japan in 1971.
Japan denies that any issue of the territorial sovereignty concerning the Senkaku Islands exists, arguing that they are an integral part of the Japanese territory.14
China has also claimed that it has indisputable sovereignty over the Islands in the
wake of a series of episodes concerning them.15
12Ministry of Foreign Affairs, Japan, The Basic View on the Sovereignty over the Senkaku
Islands, http://www.mofa.go.jp/region/asia-paci/senkaku/qa_1010.html.
13See, Ji Guoxing, Similarities and Differences between the KoreanJapanese Dokdo
Disputes and the Sino-Japanese Diaoyudao Disputes, in Seokwoo Lee and Hee Eun Lee
(eds.), Dokdo: Historical Appraisal and International Justice (Leiden: Martinus Nijhoff
Publishers, 2011), 201; At the Cairo Conference in November 1943 to discuss the war
against Japan, President Franklin D. Roosevelt and Prime Minister Winston Churchill
met with Generalissimo Chiang Kai-Shek. The three conferees issued a declaration of
intent: to take from Japan all of the Pacific islands occupied by it since 1914; to restore
to China all the territories seized by Japan, such as Manchuria, Formosa, and the Pescadores Islands; San Francisco Peace Treaty, Article 2(b) Japan renounces all right, title
and claim to Formosa and the Pescadores.
14See, the Ministry of Foreign Affairs, Japan, Statement by the Press Secretary on the
Collision between Japan Coast Guard Patrol Vessels and a Chinese Fishing Trawler in
Japans Territorial Waters off the Senkaku Islands, on 25 September 2010, http://www
.mofa.go.jp/announce/announce/2010/9/0925_01.html.
15See, Foreign Ministry spokespersons remarks on Chinese landing on Diaoyu Islands, 25
March 2004, building a lighthouse on the Diaoyu Islands, 11 February 2005, maritime
scientific exploration in the waters adjacent to the Diaoyu Islands, on 6 February 2007,
JCG stationing patrol vessels in the waters of the Diaoyu Islands, February 6, 2009, and
Japan detaining captain of the Chinese fishing boat, on September 2009.
perspectives on east china sea maritime disputes
289
Tensions between China and Japan over the Senkaku Islands escalated when the
two countries declared their own territorial waters and EEZs in the 1990s16 which
enclosed the Senkaku Islands within their own EEZs of 200 nautical miles.
Disputes over the Delimitation of Maritime Boundaries
The delimitation of maritime boundaries in the East China Sea whose width is
only 360 nautical miles has remained hotly disputed. The disputes primarily
concern the extent of their respective EEZs and continental shelves, with the
application of different maritime boundary delimitation principles to their own
advantage, and granting different legal effects to the disputed islands.
First, China and Korea employ the natural prolongation of land territory
toward Japan, while Japan argues the median line (or equidistance line) toward
the two countries.
Second, China and Korea use their claims to the continental shelf as the basis
for the EEZ claims, in the geographical feature of the East China Sea whose width
is less than 400 nautical miles.
Third, China and Japan disagree with effects to be given to the Senkaku Islands
and the Okinawa Trough with respect to maritime zones.
The ownership issue of the Senkaku Islands is essential to addressing the maritime boundary delimitation in the East China Sea, as Choon-ho Park argues that
the resolution of this dispute is prerequisite to the ultimate settlement of the
continental shelf boundary issues between China and Japan.17 This might become
even more apparent given the maritime boundary claims of the two sides enclose
the Senkaku Islands within their maritime zones.
Concerning the Senkaku Islands legal effects on the maritime boundary delimitation in the East China Sea, China holds a position that the Islands are small,
uninhabited and cannot sustain economic life of their own, and thus that they
are not entitled to have an EEZ and continental shelf, as provided in Article 121(3)
of the United Nations Convention on the Law of the Sea, 1982 (LOSC).18 On the
other hand, Japan argues that the Islands are entitled to generate maritime zones
16China promulgated The Law on the Territorial Sea and the Contiguous Zone, declaring
12 nautical miles of territorial sea, on February 25, 1992. China enacted The Exclusive
Economic Zone and Continental Shelf Act, adopted at the third session of the Standing Committee of 9th National Peoples Congress on June 26, 1998. Japan enacted
Law on Territorial Sea and Contiguous Zone to adopt 12 nautical miles of territorial zone,
on June 14, 1996 and Law on Exclusive Economic Zone and Continental Shelf on 1 June
1996.
17Park, East Asia and the Law of the Sea, 31.
18United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 3.
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and thus Japan intends to use them as base points for continental shelf and EEZ
claims in the East China Sea.19
On the part of the status of the Okinawa Troughthe most striking geophysical feature of the seabed of the East China SeaChina and Korea share the
same view in their respective delimitations with Japan. The Okinawa Trough,
which lies in the east of the East China Sea and runs from the Japanese islands
of Kyushu along the Japanese chain of Ryukyu Islands, is about 900 km in length
and 36150 km in width.20
China and Korea argue that the Okinawa Trough disrupts the unity of the
continental shelf in the East China Sea, and constitutes the natural boundary
between the continental shelves of the two countries on the one hand and the
continental shelf of Japan on the other hand.21 China argues that the continental shelf of the East China Sea is the natural extension of its mainland territory
on the ground that the continental shelfwhich is less than 100 meters deep
and has a gently rolling slopeextends all the way to the Okinawa Trough, in
which the slope abruptly drops to the deepest point of 2,717 meters.22 By the
same token, China claims that its continental shelf and EEZ should be drawn
along the Okinawa Trough, which would result in two-thirds of the continental
shelf coming under Chinese jurisdiction.23
Chinas claims regarding the natural prolongation of land territory build on
two primary points. First, China refers to the 1969 North Sea Continental Shelf
Cases,24 in which the International Court of Justice (ICJ) ruled on the continental shelf delimitation cases concerning Germany, the Netherlands, and Denmark
in the North Sea by invoking the principle of natural prolongation, upholding a
legal title of a coastal State to continental shelf on the basis of its dominion on
the land territory.25
Second, China also refers to the definition of the continental shelf under LOSC
which describes continental shelf as the seabed and subsoil of the submarine
19 See, Ji Guoxing, Similarities and Differences, 205. Also see Mark J. Valencia, The East
China Sea Dispute: Context, Claims, Issues, and Possible Solutions, Asian Perspective,
31/1, (2007): 154.
20Gao Jianjun, The Okinawa Trough Issue in the Continental Shelf Delimitation Disputes
Within the East China Sea, Chinese Journal of International Law, 9/1 (2010): 143.
21 Ibid.
22See, Suk Kyoon Kim, Understanding Maritime Disputes in Northeast Asia: Issues and
Nature, The International Journal of Marine and Coastal Law, 23 (2008): 223.
23Ibid.
24North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark and Federal
Republic of Germany/Netherlands) (1969) ICJ Reports, 3.
25Ibid., paragraph 43 where the ICJ ruled that the ipso jure title, which international law
attributes to the coastal state in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which
the coastal state already has dominion.
perspectives on east china sea maritime disputes
291
areas that extend beyond its territorial sea throughout the natural prolongation
of its land territory to the outer edge of the continental margin, or.26 However, it
appears that the Chinese argument disregards the other part of the definition of
the continental shelf in LOSC based on the principle of adjacency, which grants
a coastal State an entitlement of 200 nautical miles of continental shelf from
baselines.27
China also maintains, in response to Japans claim to the median line, that the
boundary of its EEZ should be delimitated on the basis of equitable principles,
arguing that the relevant factors, including disparity in the length of the relevant
coastlines, should be considered in the boundary delimitation.
Japan insists that the Okinawa Trough is a casual indent in the natural prolongation of the continental shelf in the East China Sea and that maritime
boundaries should be median lines between the coasts of States concerned,
objecting the principle of natural prolongation as the single significant factor to
be considered.
It appears that the Japanese position has been affected by the maritime boundary cases afterward, which receded from the natural prolongation principle and
considered relevant circumstances for equitable solution such as fishing grounds,
geographical configuration, length of coasts, and effects of islands. The development of international law, which allows a coastal State a claim to 200 nautical
miles of continental shelf from the baseline, as discussed earlier, is also an essential factor.28
Many commentators have viewed the issues of maritime boundary delimitation and ownership of the Senkaku Islands inseparable. However, some commentators open up the possibility of separating the two issues, given recent legal
developments, State practice and the ratification of LOSC by the claimants and
international adjudications, which have ignored small islets in seabed boundary
delimitations between opposite States. This suggests that regardless of their ultimate owner, the features will only have a maximum 12 nautical mile territorial
sea around them, not permitted to generate their own continental shelf or EEZ
beyond that limit.29
26LOSC, Article 76(1).
27Ibid.
28See, Case Concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya) (1982)
ICJ Reports, 18, paragraph 61; Continental Shelf (Libyan Arab Jamahiriya/Malta) (1985) ICJ
Reports, 13, paragraph 39; Case Concerning the Continental Shelf (Tunisia v Libyan Arab
Jamahiriya) (1982) ICJ Reports, 18, paragraphs 61, 67 and 73; Continental Shelf (Libyan
Arab Jamahiriya/Malta) (1985) ICJ Reports, 13, paragraphs 39, 48 and 61.
29See, Valencia, The East China Sea Dispute, Asian Perspective, Vol. 31, No. 1, 2007,
p. 166.
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By all accounts, three basic agreements in principle are necessary before
details of any solution can be negotiated for the maritime boundary delimitation
between China and Japan.30
First is agreement that the disputed territory (Senkaku Islands) cannot be used
as a basis for EEZ or continental shelf claims.
The second agreement necessary to negotiate a solution is on a unified boundary for both the EEZ and continental shelf.
The third agreement necessary is that regardless of where the boundary is
located, joint development of fish, minerals, and hydrocarbon resources will
be undertaken.
Competition for Energy Resources
Having been a net oil importer since 1993, China depends on at least 35 per cent
of its oil consumption on imports. Chinas oil consumption growth accounted for
over a third of the worlds oil consumption growth in 2010.31 Japan is the third
largest oil consumer in the world behind the U.S. and China, and the third-largest
net importer of crude oil. Japan is also the worlds largest importer of liquefied
natural gas (LNG).32
As part of efforts to meet rapidly growing energy demands, China and Japan
have endeavored to develop offshore hydrocarbon deposits in the East China
Sea, which is thought to contain up to 100 billion barrels of oil equivalent.33 To
complicate matters, however, the deposits are mostly centered on overlapping
boundary claimed waters. The unilateral exploration and exploitation of hydrocarbon resources by either China or Japan in the disputed East China Sea waters
in the absence of agreed development schemes gave rise to conflicts. Conversely
coastal States relentless quest for offshore hydrocarbon resources renders it more
difficult to settle maritime boundary delimitation in the East China Sea and fuels
territorial disputes over the Senkaku Islands.
China began explorations in the 1980s with a view to developing natural gas
in the Xihu Trough, in which natural gas deposits are estimated at 8.49 billion m3.34
The Chinese grand plan was to build seven oil and natural gas fields, including the
Pinghu, Canxue, Duanqiao, Tianwaitian, and Chunxiao sites and covering an area
30Ibid., 158159.
31 U.S. Energy Information Administration, Country Analysis Brief, http://www.eia.gov/
countries/ cab.cfm?fips=CH.
32Ibid. available at http://www.eia.gov/countries/cab.cfm?fips=JA.
33Valencia, The East China Sea Dispute, 128.
34See, James Hsiung, Sea Power, the Law of the Sea, and the Sino-Japanese East China
Resource War, American Foreign Policy Interests, 27(6), 2005, 521523.
perspectives on east china sea maritime disputes
293
of 22,000 km2.35 Among them, Pinghu began operation as early as 1998, with its
natural gas product transported to Shanghai via undersea pipelines.36
The current phase of tensions has its origin in August 2003, when the China
National Oil Corporation (CNOOC) entered into a partnership to develop gas
fields with Unocal and Royal Dutch/Shell and subsequently started constructing drilling facilities. The most hotly disputed was the Chunxiao (in Japanese
name Shirakaba) gas field, located 3.1 nautical miles west of the Japanese claimed
median line to the Chinese side. Japan strongly demanded that China should
cease the development project on the ground that the gas field would siphon off
its hydrocarbon resources on the side of the Japanese EEZ. Japan also demanded
that China turn over the seismic data on the field.
However, China claims that Japan has no right to protest its Chunxiao
operations because the development operations are being conducted in its EEZ
under either interpretation. Then Chinese foreign minister Li Zhaoxing, in return,
offered joint development in the East China Sea in April 2004. The offer was
not readily accepted by the Japanese side, prompting the Japanese media to
call for joint development. During subsequent talks, Japan modified its position
and became more receptive to the idea of joint development, but the two sides
could not agree on which area to develop and what form of cooperation should
take place.37
In July 2005 the Japanese government, in the face of rising public pressure,
authorised Teikoku Oil Company to drill adjacent to the Chunxiao field on the
side of Japanese claimed median line.38 Actually Japan had held a long-standing
position that did not grant drilling rights to its oil companies because it did not
want to antagonise China.39
Tensions over the Chunxiao field climaxed in mid- to late 2005. The first expedition was met with a significant show of force by the Chinese navy in early September 2005, when a flotilla of five vessels, including the advanced Sovremenny
destroyer, appeared near the Chunxiao gas field.40
Amid heightened tensions, the two countries held 11 rounds of official talks
between 2004 and 2007 to resolve the issue. At the fourth round of talks on
30 September 2005, Japan officially proposed joint development of four gas
fields: Tianwaitian, Chunxiao, Duanqiao, and Longjing. However, this proposal
35Ibid.
36See, Kim, Understanding Maritime Disputes in Northeast Asia, 240.
37Kung-wing Au, The East China Sea Issue: Japan-China Talks for Oil and Gas, East Asia,
25 (2008): 225.
38Valencia, The East China Sea Dispute, 132.
39Au, The East China Sea Issue, 226.
40James Manicom, Hu-Fukuda Summit: The East China Sea Dispute, China Brief, 8/12,
http://www.jamestown.org/programs/chinabrief/single/?tx_ttnews%5Btt_news%5D
=4968&tx_ttnews%5BbackPid%5D=168&no_cache=1.
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suk-kyoon kim
was rejected by China because these sites had already begun or were to
about to begin production. In addition, China was also concerned that if it
accepted Japans proposal, it would be tacitly lending validity to Japans EEZ
boundary claim.41
As a step toward making the East China Sea a sea of peace, cooperation and
friendship, rather than a sea of confrontation, a common understanding shared
by leaders of the two countries,42 on 8 July 2006 at the 6th round of talks in
Beijing, they agreed to set up a maritime hotline to deal with unpredictable situations in the area. In the Tokyo summit meeting on 11 April 2007, Chinese Premier
Wen Jiabao and Japanese Prime Minister Abe Shinzo agreed to conduct joint
development as a provisional arrangement until final delimitation.43 Through
rounds of consultation afterward, the two countries finally reached the Principled Consensus on the East China Sea Issue. The joint statement on June 18,
2008 states:
The block for joint development, the area of 2,700 km2 that is bounded by
7 straight lines near the Longjing gas field, is established.
Through joint exploration areas for joint development in the block will be
selected by mutual agreement under the principle of mutual benefit.
The two sides continue consultations for the early realization of joint development in other parts of the East China Sea.
China allows the participation of Japanese legal person in the development of
the existing oil and gas field in Chunxiao in accordance with the relevant laws
of China governing cooperation with foreign enterprises in the exploration and
exploitation of offshore petroleum resources.
It is apparent that the Principled Consensus is a major breakthrough toward
joint development, but there are some issues to be addressed in the future.
First, it is a question of whether the Principled Consensus is a treaty, which
has binding force on State parties or just a consensus, which is a diplomatic
expression of willingness by the two sides. From a perspective of the Vienna Convention on the Law of Treaties,44 the Principled Consensus is not sufficient to
be qualified as a treaty in international law for a number of points. Rather it is
viewed as only a commitment of willingness of the two countries, as an interim
measure before signing a formal final agreement for joint development.
41 Valencia, The East China Sea Dispute, 132.
42See, Principled Consensus on the East China Sea Issue, agreed on June 18, 2008 between
China and Japan.
43Au, The East China Sea Issue, 233.
44Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, in force
27 January 1980, 1155 UNTS 331.
perspectives on east china sea maritime disputes
295
Thus further negotiations are needed to strengthen its legal ground in a form
of a treaty and to specify the area of joint development in the block. On May 31,
2010, to this end, Premier Wen Jiabao and Prime Minister Hatoyama agreed to
begin negotiations on a treaty over gas fields in the East China Sea.45 However,
there has been little progress since then. Rather negotiations were suspended
in the aftermath of the diplomatic row sparked by a Chinese trawler ramming
Japanese patrol ships off the Senkaku Islands.46
Second, China and Japan seem to have a different interpretation over what
joint development exactly means, and of some wordings of the Principled Consensus. Japan argues that China betrays the two countries consensus of continuous consultation on joint development in the East China Sea by conducting the
unilateral development of the Tianwaitian oil and gas field.47
Japan believes that the joint development means that China must cease its
current exploration and development in Japanese-claimed areas and that China
will share the gas on Chinas side of the median line claimed by Japan. In contrast, China argues joint development means that Japan will not interfere with
the Chinese exploitation of fields on its side of the line.
More specifically the two countries differ in the interpretations of the wordings
over consultation for the early realization of the joint development of the other
parts of the East China Sea in the Principled Consensus. Based on the wordings,
Japan asserts that the unilateral development of the East China Sea other than
the block for joint development should be stopped until they reach an agreement for joint development. In response, China claims that this does not include
Chinas undisputed waters and thus there is no basis for raising the issue of joint
development in the Tianwaitian field.48
Third, controversies may arise as to the nature of the participation of Japanese legal persons in the development of the Chunxiao field. The participation of
Japanese companies may be viewed as joint venture, rather than joint development because Japanese companies are allowed to participate in the development
of Chunxiao in accordance with the relevant Chinese laws. Thus this may be
regarded that the development of the gas field falls under the jurisdiction of the
Chinese law and thus China has the sovereign right over the Chunxiao field.49
45Wen open to treaty to end gas field row, Japan Times, 1 June 2010 http://search.japan
times.co.jp/cgi-bin/nn20100601a1.html.
46China says wells in disputed gas field are operational, Asahi Shimbun, 10 March 2011,
http://www.asahi.com/english/TKY201103090272.html.
47China develops gas field in East China Sea, Reuters, Reuters, 4 January 2009, http://
www.reuters.com/article/2009/01/04/japan-china-gas-idUST33874420090104.
48Hee Cheol, Yang, Joint Development Arrangement in the East China Sea and its Legal
Issues, paper presented in the 5th International Maritime Security Conference, 2527
May 2011, (translated by author) Incheon, Korea.
49Ibid.
296
suk-kyoon kim
Apparently the Principled Consensus between China and Japan is a significant
achievement toward efforts of making the East China Sea a sea of peace, cooperation and friendship, given ensued conflicts over the exploration and exploitation of energy resources. From a perspective of international law, the Principled
Consensus is primarily a provisional arrangement of a practical nature, as provided in the LOSC, pending the delimitation of maritime boundaries.50
Closing Words
As discussed above, the East China Sea is a focus of competing maritime interests
between China and Japan. Besides the U.S., as an extra-regional country, also has
a keen interest in safe passage for shipping and free mobility of its naval ships
in the region. When the interests of Korea, Taiwan, and Russia, which have also
vital interests in the East China Sea, are considered, the complexity of the issues
will be much greater.
During a 6 September 2011, telephone conversation, newly elected Japanese
Prime Minister Noda and Chinese Premier Wen Jiabao agreed to establish a
system for maritime contingency management to prevent such a confrontation
caused by the collision of a Chinese trawler with Japanese Coast Guard ships.51 As
indicated in the agreement between the two leaders, China and Japan apparently
do not intend that the East China Sea maritime issues militate further development of China-Japan relations and remain a flashpoint of conflicts in the region.
Given a number of critical factors involved in the East China Sea maritime
disputes, such as maritime interests, complexity of the issues, and the lack of
governing regimes and confidence, however, they are not likely to be solved in
the near future.
50LOSC, Articles 74(3) & 83(3).
51 Kuk Min Ilbo, http://news.kukinews.com/article/view.asp?page=1&gCode=kmi&arcid=
0005331 658&cp=du.
Chapter thirteen
The China-Japan Dispute Over Entitlement in the East
China Sea: Legal Issues and Prospects for Resolution
Tara Davenport*
Introduction
The East China Sea is less than 400 nautical miles broad and is surrounded the
Peoples Republic of China (China), the Republic of Korea (Korea), Japan and by
the Republic of China (Taiwan). It is reportedly rich in both seabed hydrocarbon1
and fishery resources,2 however, overlapping claims in the East China Sea by the
coastal States have hindered the effective exploitation and management of such
resources, and the unilateral actions of the countries concerned have threatened
to undermine peace and stability in the region.
One of the major challenges for the delimitation of the overlapping claims
between China and Japan is the difference in their respective positions on continental shelf entitlement. China has consistently argued that the natural prolongation of its continental shelf in the East China Sea extends up to the Okinawa
Trough, a depression in the seabed which is closer to Japan. In 2009, it submitted Preliminary Information to the Commission on the Limits of the Continental Shelf (CLCS) stating that the Okinawa Trough represented the extent of its
outer continental shelf entitlement.3 In December 2012, China followed up its
*Research Associate, Centre for International Law (CIL), Faculty of Law, National University of Singapore (NUS), Singapore.
1 However, estimates of proven and potential hydrocarbon resources vary considerably:
Reinhard Drifte, Territorial Conflicts in the East China SeaFrom Missed Opportunities to Negotiation Stalemate, paper delivered at the Conference on Dokto, Yeungnam
University Dauegu, May 1314, 2009, http://www.japanfocus.org/-Reinhard-Drifte/3156.
2Pollution, overfishing destroy East China Sea fishery, Xinhua, 16 August 2006, http://
english.gov.cn/2006-08/16/content_363493.htm.
3Paragraph 6 of Preliminary Information Indicative of the Outer Limits of the Continental
Shelf Beyond 200 Nautical Miles of the Peoples Republic of China, http://www.un.org/
depts/los/clcs_new/submissions_files/preliminary/chn2009preliminaryinformation_
english.pdf.
298
tara davenport
Preliminary Information with a Partial Submission to the CLCS in part of the
East China Sea which also showed the outer limits of its continental margin terminating at the axis of the Okinawa Trough.4 Japan, on the other hand, argues
that under present principles of international law, States are not entitled to an
extended continental shelf in areas less than 400 nautical miles, and has issued
strong protests against Chinas CLCS submissions.5
Chinas submissions to the CLCS raise a difficult issue under international law,
namely, whether a State can have an extended continental shelf beyond 200 nautical miles in areas less than 400 nautical miles. This chapter will examine the
issues arising from Chinas claim that it is entitled to an extended continental
shelf in the East China Sea. After examining the basis of Chinas extended continental shelf entitlement, it will argue that international law presently has no
clear-cut answer to the question of whether a State is entitled to an extended
continental shelf in areas less than 400 nautical miles and arguments can be
made to support either position. However, until Chinas entitlement in the East
China Sea is decided, it is not possible to determine the nature of overlapping
entitlements between China and Japan. This will, in turn, have consequences for
delimitation as the overlapping entitlements will dictate the applicable delimitation principles. In light of this, the Chapter suggests that China and Japan should
explore avenues to definitively settle the issue of entitlement in the East China
Sea, so as to pave the way for negotiations on delimitation.
Maritime Claims in the East China Sea
The United Nations Convention on the Law of the Sea (LOSC)6 allows States to
claim an exclusive economic zone (EEZ) up to 200 nautical miles where it has
sovereign rights over living and non-living resources in the seabed and subsoil as
well as the superjacent waters.7 LOSC also grants coastal States sovereign rights
over the mineral and non-living resources of the seabed and subsoil of the continental shelf, which is defined in Article 76(1) of LOSC as:
4Paragraph 1 of the Executive Summary of the Submission by the Peoples Republic of
China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles
in Part of the East China Sea, 14 December 2012, http://www.un.org/depts/los/clcs_new/
submissions_files/chn63_12/executive%20summary_EN.pdf.
5See Japans Note Verbale, dated 23 July 2009, to the Submission of Preliminary Information of China to the CLCS, http://www.un.org/Depts/los/clcs_new/commission_
preliminary.htm; Japans Note Verbale dated 28 December 2012 to the Partial Submission of China to CLCS, http://www.un.org/depts/los/clcs_new/submissions_files/
chn63_12/jpn_re_chn_28_12_2012.pdf.
6United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 U.N.T.S. 397 (LOSC).
7See generally, Part V of LOSC as well as Article 56.
the china-japan dispute over entitlement in the east china sea 299
[T]he seabed and subsoil of the submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer edge of the
continental margin does not extend up to that distance.
Coastal States can therefore claim a continental shelf up to a distance of 200 nautical miles (distance-based continental shelf) or a continental shelf up to the
outer edge of the continental margin8 (often termed the extended or outer
continental shelf) provided that it meets certain criteria set out in Articles 76(46)
of LOSC. If coastal States wish to define the outer limits of the continental shelf
seawards of the 200 nautical miles limit, they must submit evidence that they
meet the criteria set out in Articles 76(46) to the CLCS, which is empowered to
issue recommendations on the outer limits of a coastal States extended continental shelf.9 The limits of the extended continental shelf established by a coastal
State on the basis of these recommendations are final and binding.10
While China and Japan both made unilateral claims to the seabed in the East
China Sea in the early 1970s prior to the adoption of LOSC,11 they both became
parties to LOSC in 1996,12 and have since claimed an EEZ and continental shelf
pursuant to this Convention.
For example, China has passed legislation claiming a 200 nautical miles EEZ in
the East China Sea,13 but has not deposited the co-ordinates of the outer limit lines
of the EEZ pursuant to Article 75 of LOSC. In its legislation, it has also claimed a
continental shelf that extends to the outer edge of the continental margin or to
a distance of 200 nautical miles where the continental margin does not extend
up to that distance.14 As mentioned above, it has also made submissions to the
8LOSC
defines the continental margin as the submerged prolongation of the land mass
of the coastal State, and consists of the seabed and subsoil of the shelf, slope and rise:
See, Article 76(3), LOSC.
9Article 76(8), LOSC.
10Article 76(8), LOSC.
11 Choon-Ho Park, Oil Under Troubled Waters: The Northeast Asia Sea-Bed Controversy,
Harvard International Law Journal, 14 (1973): 212 at 212.
12China ratified LOSC on 7 June 1996, Japan ratified LOSC on 20 June 1996.
13Article 2, Chinas Exclusive Economic Zone and Continental Shelf Act, adopted at the
Third Session of the Standing Committee of the Ninth National Peoples Congress,
26 June 1998, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/
chn_1998_eez_act.pdf.
14In its 1998 Law on the Exclusive Economic Zone and Continental Shelf (1998 Law), China
claimed a continental shelf which extends to the outer edge of the continental margin
or to a distance of 200 nautical miles where the continental margin does not extend up
to that distance: Article 2, Chinas Exclusive Economic Zone and Continental Shelf Act,
adopted at the Third Session of the Standing Committee of the Ninth National Peoples
Congress, 26 June 1998, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/
PDFFILES/chn_1998_eez_act.pdf.
300
tara davenport
CLCS indicating that the limits of the outer edge of its continental margin lie in
the axis of the Okinawa Trough. The Okinawa Trough is a depression in the seabed of the East China Sea which is 1,200 kilometres (km) long, 26120 km wide.
The Troughs bottom has an average width of 104 km. The Trough is shallow
in the northern part, and deep in the southern part; the water depth is
894 meters (m) in the north; 1,188 m in the centre, and 2,700 m in the south.15
Japan has also made claims to both continental shelf and an EEZ in the East
China Sea.16 With regards to its continental shelf, it has claimed sovereign rights
over the seabed and subsoil in the areas of the sea extending from the baseline
of Japan to the line every point of which is 200 nautical miles from the nearest
point on the baseline of Japan.17 Like China, it has also claimed a 200 nautical
miles EEZ18 but has not deposited the coordinates of the outer limits of its EEZ
with the UN.
China-Japan Disputes in the East China Sea
The claims of China and Japan overlap and need to be delimited. However, when
a delimitation exercise is carried out, it is not on the basis of overlapping claims
made by the parties but rather on overlapping entitlements recognised and validated under LOSC.19 As noted by the International Tribunal for the Law of the
Sea (ITLOS) in the Bangladesh/Myanmar Case, delimitation presupposes an
area of overlapping entitlements.20 The first step in delimitation is to determine
whether there are entitlements and whether they overlap.21 Accordingly, entitlement and delimitation in respect of the EEZ and continental shelf are two distinct but interrelated concepts.22
The difference in views between China and Japan on entitlement and the
applicable delimitation principles have posed a major challenge to delimitation
in the East China Sea. With regard to entitlement, China argues that the Okinawa
Trough is the natural prolongation of its continental shelf and represents its
15 Zhao Lihai, Literature of the Law of the Sea (Beijing: Peking University Press, 1996), 80.
16 Japans Law on the Exclusive Economic Zone and the Continental Shelf (Law No. 74 of
1996),http://www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/
bulletinE35.pdf.
17 Ibid., Article 2.
18 Ibid., Article 1.
19 Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Case No. 16, Judgment dated
14 March 2012, International Tribunal for the Law of the Sea (ITLOS), paragraph 397.
20Ibid.
21 Ibid.
22Ibid.
the china-japan dispute over entitlement in the east china sea 301
extended continental shelf entitlement.23 For the delimitation of the continental
shelf, China emphasizes the principle of equitable solution through consultations rather than delimitation based on the median or equidistant line.24 China
has not publicly indicated where it believes the continental shelf boundary with
Japan to be although China will likely argue that the Okinawa Trough should constitute the applicable boundary,25 given its submission to the CLCS that the extent
of its continental shelf lies at the axis of the Okinawa Trough. If the Trough is recognised as representing the outer limit of Chinas extended continental shelf and
is consequently taken into account in delimitation, the Japanese Ryukyu Islands
would be attributed a maritime boundary in the East China Sea to the west that
is relatively close to Japan and far from the opposite coastline of China.26 China
would resultantly get a greater share of the supposedly hydrocarbon-rich continental shelf.
This is obviously not a preferred outcome for Japan. Japan has accordingly
argued that the Okinawa Trough is a mere dent in the continental shelf27 of
these two countries and, by virtue of distance-based entitlements to EEZs up
to 200 nautical miles in breadth, there can be no extended continental shelf
23China has consistently endorsed the concept of the continental shelf being the natural
prolongation of the territory of the coastal State. While Chinas statements and legislation have always endorsed the natural prolongation principle, they have all avoided
directly mentioning the Okinawa Trough. It was only in 2009 in their Preliminary
Information to the CLCS that China explicitly mentioned the Okinawa Trough as representing the extent of its outer continental shelf entitlement. See, Xinjun Zhang, Why
the 2008 Sino-Japanese Consensus on the East China Sea has stalled: Good Faith and
Reciprocity Considerations in Interim Measures Pending a Maritime Boundary Delimitation, Ocean Development and International Law, 42 (2011): 5365, 56.
24During the negotiations of LOSC, China strongly supported equitable principles in
relation to the delimitation of both the EEZ and continental shelf and that the median
line was only to be adopted when its use was in accordance with equitable principles: See Statement of PRC Delegate Shen Wei-Liang at the Plenary Meeting held on
25 August 1980, UN Press Release (Geneva) SEA/128. Also see Article 2 of Chinas 1998
Law of the Exclusive Economic Zone and the Continental Shelf which states delimitation
of the continental shelf shall be settled, on the basis of international law and in accordance with the principle of equity, by an agreement delimiting the areas so claimed.
25Gao Jianjun, Joint Development in the East China Sea: Not an Easier Challenge than
Delimitation, International Journal of Marine and Coastal Law, 23 (2008): 3975, 67.
26Jonathan Charney, The Diaoyu/Senkaku Islands Maritime and Territorial Dispute,
in K. Chiu, (ed.) Proceedings of the International Law Conference on the Dispute Over
Diaoyu/Senkaku, April, 1997 (Taipei: Taiwan Law Society and Taiwan Institute of International Law, 1997), 126.
27Xinjun Zhang, Chinas Peaceful Rise, Harmonious Foreign Relations, and Legal
Confrontationand Lessons from the Sino-Japanese Dispute over the East China Sea,
in Foreign Policy Research Institute, April 2010, http://www.fpri.org/enotes/201004
.zhang.chinariselegalconfrontation.html.
302
tara davenport
e ntitlement in areas less than 400 nautical miles apart.28 Because the Okinawa
Trough is irrelevant in establishing entitlement, it is also irrelevant for delimitation. The median line is therefore the applicable boundary between China and
Japan.29 However, Japan has maintained that the fact that the median line is
the applicable boundary does not mean that Japan has given up its title to a
200 nautical miles EEZ beyond the median line.30
The Basis of Chinas Entitlement in the East China Sea
There are two aspects to Chinas argument that it is entitled to an extended continental shelf in the East China Sea. First, China argues that the Okinawa Trough
constitutes the natural prolongation of its land territory. Inherent in this natural prolongation argument is the idea that a geological or geomorphologic feature such as the Okinawa Trough can interrupt natural prolongation. In other
words, there is a break in the continental shelf which causes there to be two
separate shelves.31 For example, one Chinese scholar and former ITLOS Judge has
argued the Okinawa Trough is also the end of the respective natural prolongation of Chinas continental shelf and Japans Liqiu (Okinawan) Islands32 continental shelf in the East China Sea. The Troughs axis line is the natural dividing
line of China and Japan.33 This shall be referred to as natural prolongation
entitlement.
Second, China also appears to be arguing that the axis of the Okinawa Trough
constitutes the outer edge of its continental margin, as reflected in its 2009 submission of Preliminary Information and its 2012 Partial Submission to the CLCS
(outer continental margin entitlement). The crux of this argument is that the:
28Article 2(1) of the 1996 Japanese Law on the Exclusive Economic Zone and the Continental Shelf provides that, where any part of that line lies beyond the median line as
measured from the baseline of Japan, the median line (or the line which may be agreed
upon between Japan and a foreign country as a substitute for the median line, and the
line to be drawn to connect with the said line, which shall be prescribed by Cabinet
Order) shall be substituted for that part of the line.
29See, Article 2 of Japanese Law on the Exclusive Economic Zone and the Continental
Shelf.
30Zhang, Why the 2008 Sino-Japanese Consensus on the East China Sea Has Stalled,
56, citing the Japanese MOFA Statement on Our Countrys Legal Position Concerning
Resource Exploration in the East China Sea, November 2006, www.mofa.go.jp/mofaj/
area/china/higashi_shina/tachiba.html.
31 Gao Jianjun, The Okinawa Trough Issue in the Continental Shelf Delimitation Disputes
within the East China Sea Chinese Journal of International Law, 9 (2010): 143177, 170.
32This is the Chinese name for Ryukyu Islands.
33Zhao Lihai, Literature of the Law of the Sea, 85.
the china-japan dispute over entitlement in the east china sea 303
East China Sea continental shelf belongs to stable continental earths crust; whereas
the Okinawa Trough belongs to a structural belt in the transition from continental
earths crust, and is a basin in the edge of the continental margin and the outer limit
of the East China Sea continental shelf.34
The validity of each of Chinas arguments is examined below.
Chinas Entitlement to Extended Continental Shelf Based on
Natural Prolongation
The nature of natural prolongation, its relationship with geology (the composition and structure of the seabed), geomorphology (the shape and form of the
seabed) and its role in establishing title and in delimitation, has been steeped in
confusion. This is partly due to the fact that international courts and States have
viewed natural prolongation as serving a variety of functions, including a basis
of title, a means of delimitation, an equitable principle of delimitation, a criterion
for delimitation and as a relevant circumstance.35 While often used by States and
international courts/tribunals alike, it has never been defined,36 at least with any
degree of certainty. There are three critical cases which shed light on the nature
of natural prolongation as a basis of entitlement: the 1969 North Sea Continental Shelf Cases;37 the 1985 Libya/Malta Case38 and the 2012 Bangladesh/Myanmar
Case.39 An examination of these cases will demonstrate that while it is unsurprising that China has utilised natural prolongation as a basis of entitlement, such
arguments may no longer be valid under international law.
North Sea Continental Shelf Cases
The dispute between China and Japan arose in the early 1970s, immediately
after the seminal North Sea Continental Shelf Cases decided by the International
Court of Justice (ICJ) whereby the ICJ addressed the nature of the legal institution of the continental shelf and thence proceeded to elaborate on the principles
and rules that would apply to its delimitation.40
34Ibid.
35Malcolm Evans, Relevant Circumstances and Maritime Delimitation (Oxford: Clarendon
Press, 1989), 100.
36A point acknowledged by ITLOS in Bangladesh/Myanmar Case, paragraph 432.
37North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands) Judgment (1969) ICJ Reports 3.
38Continental Shelf (Libya v. Malta) (1985) ICJ Reports 13.
39Bangladesh/Myanmar Case.
40Keith Highet, The Use of Geophysical Factors in the Delimitation of Maritime Bound
aries, in Jonathan Charney and Lewis Alexander (eds.), International Maritime Boundaries,
Volume I (Leiden: Martinus Nijhoff Publishers, 1987), 167.
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tara davenport
With regards to the legal nature of the continental shelf, the ICJ identified the
concept of natural prolongation as the basis of legal title of the continental shelf:
What confers the ipso jure title which international law attributes to the coastal State
in respect of its continental shelf, is the fact that the submarine areas concerned
may be deemed to be actually the territory over which the coastal State already has
dominionin the sense that, although covered with water, they are a prolongation
or a continuation of that territory, an extension of it under the sea.
From this, it would follow that whenever a given submarine area does not constitute a natural or the most naturalextension of the land territory of a coastal
State, even though that area may be closer to it than it is to the territory of any
other State, it cannot be regarded as appertaining to that State; or at least it cannot
be so regarded in the face of a competing claim by a State whose land territory the
submarine area concerned is to be regarded as a natural extension, even if it is less
close to it [emphasis added].41
The courts concept of whether the continental shelf constituted a natural or the
most natural extension of territory meant that it was inevitable that parties must
seek to demonstrate that the area subject to overlapping or competing claims
was the most natural extension of its land mass.42 Accordingly, where the natural prolongation manifests itself in a suitably unambiguous form, it automatically defines the extent of continental shelf rights.43 In subsequent cases such as
in the 1977 Anglo-French Channel Arbitration,44 Tunisia/Libya Continental Shelf
Case45 and the Gulf of Maine Case,46 one party or both sought to argue that the
41 North Sea Continental Shelf Cases, paragraph 43. The ICJs formulation of the continental
shelf was rooted in a geological concept arguably a response to the uncertainty inherent
in the definition of the continental shelf in the 1958 Continental Shelf Convention which
set the limits of the continental shelf to where the depth of the superjacent waters
admits of the exploitation of the natural resources of the said areas. The exploitability
criterion had become increasingly untenable in light of technical advances made since
1958: See Evans, Relevant Circumstances and Maritime Delimitation, 47.
42Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries,
168.
43Evans, Relevant Circumstances and Maritime Delimitation, 107.
44Arbitration between the United Kingdom of Great Britain and Northern Ireland and the
French Republic on the Delimitation of the Continental Shelf (Decisions of the Court of
Arbitration dated 30 June 1977 and 14 March 1978), Cdmg. 7438, Misc. No. 16 (1978)
(Anglo-French Arbitration). UK argued that there existed in the English Channel a
trough or trench called the Hurd Deep or Hurd Deep Fault Zone along the axis of
which the Tribunal was asked to find a boundary as an alternative to the equidistant
line.
45Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (1982) ICJ
Reports 18. Both Tunisia and Libya sought to prove that the area of shelf in dispute was
more naturally the appurtenance of its own landmass. Tunisia relied on its bathymetry to show the naturalness of its prolongation eastward. Libya argued that the continental shelf was more geologically akin to the southward lying Libyan coast than they
were to the westward-lying Tunisian coast.
46Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/US), (1984)
ICJ Reports 246. The US utilized, to a limited extent, a geological/geomorphologic
the china-japan dispute over entitlement in the east china sea 305
area of shelf in dispute was a more natural prolongation of its own landmass.
The courts, while never being convinced of these so-called natural prolongation
arguments, implied that a geological or geomorphologic factor, could in certain
circumstances, for example, if they were more pronounced or were more fundamental, be used to indicate the natural or most natural extension of the land
territory of a coastal State and thus the location of the boundary line for the
continental shelf.47
For example, in the Anglo-French Arbitration, the UK argued that the Hurd
Deep-Hurd Deep Fault Zone was a natural boundary. The Tribunal found that
while these features were geological faults and distinct features in the geomorphology of the shelf, they were minor discontinuities that did not interrupt
the essential unity of the continental shelf, particularly when compared to the
deep Norwegian Trough in the North Sea.48 Similarly, in the Tunisia/Libya Case,
Tunisia argued, based on geomorphological and bathymetric considerations, that
the Tripolitanian Furrow was an eastward natural prolongation of Tunisia and a
continuum northward or north-eastward of Libya and hence a true submarine
frontier.49 The Court however ignored the Tripolitanian Furrow, as it is not such
a significant feature that it interrupts the continuity of the Pelagian Block as the
common natural prolongation of the territory of both parties.50 It observed that
even so substantial a feature as the Hurd Deep was not attributed such a significance in the Franco-British Arbitration.51
The natural prolongation concept encouraged States to request international
tribunals to determine continental shelf boundaries on the basis of geological and
geomorphological features of the seabed.52 As noted by Higet,
As used by the Court in 1969, the idea of natural prolongation was a descriptive
attribute, designed to elaborate and describe basic elements to be considered by
parties in the course of reaching a delimitation agreement. It was not a functional
attribute, in the sense of being capable of providing a reason to find a boundary. Yet,
this is how it came to be used in the subsequent cases.53
a rgument. This was based on the separation between two banks, Browns Bank and
Georges Bank, to the Northeast Channel and was said to constitute an equitable reflection of geographic reality and also confirmed by geological elements.
47Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries,
172.
48Evans, Relevant Circumstances and Maritime Delimitation, 107; Gao Jianjun, The Okinawa Trough Issue 168.
49Tunisia/Libya Case, Judgment, paragraph 64.
50Ibid., paragraph 80.
51 Ibid., paragraph 66.
52Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation
(Portland: Hart Publishing, 2006), 232.
53Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries,
171.
306
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In other words, natural prolongation was given a fundamental character for both
the entitlement and delimitation of the continental shelf.54
Libya/Malta Case
It is commonly asserted that the 1985 Libya/Malta Case55 finally disposed of
natural prolongation once and for allat least up to a distance of 200 nautical miles from the baseline.56 In this case, Malta and Libya were less than
200 nautical miles apart and Malta argued that an equidistant boundary should
be used. Libya argued that between Malta and Libya, there existed a fundamental
geological and geomorphological discontinuity in the sea floor that should serve
as a natural boundary which it called the Rift Zone. The ICJ was persuaded by the
fact that within 200 nautical miles, a State was entitled to the seabed either by
virtue of the 200 nautical miles distance-based continental shelf or the new EEZ
concept recognised in the recently adopted LOSC:
The Court however considers that since the development of the law enables a State
to claim that the continental shelf appertaining to it extends up to as far as 200 miles
from its coast, whatever the geological characteristics of the corresponding seabed and
subsoil, there is no reason to ascribe any role to geological or geophysical factors within
that distance either in verifying the legal title of the States concerned or in proceeding
to a delimitation as between their claims...It follows that, since, the distance between
the coasts of the Parties is less than 400 miles, so that no geophysical feature can lie
more than 200 miles from each coast, the feature referred to as the rift zone cannot
constitute a fundamental discontinuity terminating the southward extension of the
Maltese Shelf and the northward extension of the Libyan as if it were some natural
boundary.57
At least in so far as those areas are situated at a distance of under 200 miles
from the coast in question, title depends solely on the distance from the coasts
of the claimant States of any areas of sea-bed claimed by way of continental shelf and
the geological or geomorphological characteristics of those areas [under 200 miles
from the coasts in questions] are completely immaterial [emphasis added].58
Nonetheless, the ICJ still did not completely close the door on natural prolongation
What it does mean is that where the continental margin does not extend as far as
200 miles from the shore, natural prolongation, which in spite of its physical origins
has throughout history become more and more a complex and juridical concept,
is in part defined by distance from the shore, irrespective of the physical nature of the
intervening sea-bed and subsoil. The concepts of natural prolongation and distance are
54Mahdi Zahraa, Natural Prolongation and Delimitation of Maritime Boundaries, Finnish Year Book of International Law, 7 (1996): 378, 384.
55Continental Shelf (Libya v. Malta), (1985) ICJ Reports 13.
56Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries,
176.
57Ibid., paragraph 39.
58Ibid.
the china-japan dispute over entitlement in the east china sea 307
therefore not opposed but complementary; and both remain essential elements in the
juridical concept of the continental shelf.59
The Libya/Malta Case was the end of the old law of maritime delimitation
and the start of a new one as it radically altered the legal conception of the continental shelf by substituting distance from the coast in lieu of the continental
shelf in the physical sense.60
By replacing natural prolongation with distance as the basis for title of the
first 200 nautical miles of the continental shelf, it rendered geophysical features
irrelevant because they were not relevant to the issue of title over the continental
shelf.61
Bangladesh/Myanmar Case
The delimitation dispute between Bangladesh and Myanmar was the first time
ITLOS had a delimitation case before it, and was the first time an international
tribunal had to directly consider delimitation of overlapping continental shelves
beyond 200 nautical miles. The decision clarified the role of natural prolongation as a basis of entitlement to the continental shelf. ITLOS rejected Bangladeshs arguments that the outer continental shelf was the natural prolongation
of Bangladeshs land territory by virtue of the uninterrupted seabed geology and
geomorphology. It did not accept Bangladeshs contention that Myanmar is not
entitled to a continental shelf beyond 200 nautical miles by reason of the significant geological discontinuity dividing the Burma plate from the Indian plate,
that is, the Sunda Subduction Zone.62 It found that while the notion of natural
prolongation and that of continental margin under Articles 76(1) and (4) of LOSC
are closely interrelated and refer to the same area,63 it was not a separate and
independent criterion a coastal State must satisfy in order to be entitled to a
continental shelf beyond 200 nautical miles.64 Instead, the notion of the outer
edge of the continental margin is an essential element in determining the extent
of the continental shelf.65 Entitlement to continental shelf beyond 200 nautical
miles should thus be determined by reference to the outer edge of the continental
margin, to be ascertained in accordance with Article 76 paragraph 4 [emphasis
added].66
59Ibid., paragraph 34.
60Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries
(New York: Martinus Nijhoff Publishers, 2003), 331.
61 Kolb, Case Law on Equitable Maritime Delimitation, 331, 333.
62Bangladesh/Myanmar Case, Judgment, paragraph 438.
63Ibid., paragraph 434.
64Ibid., paragraph 435.
65Ibid., paragraph 437.
66Ibid.
308
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There are some obvious merits to the Tribunals approach. First, arguably, the
formula used to establish the outer limits of the continental shelf in Article 76 (4)
is an approximation of the end of the natural prolongation of the continental
margin and/or the landmass of the coastal State (and consequently the extent of
a coastal States entitlement). The formulas used will generally result in a boundary that lies on the continental rise (particularly for mature, sediment-rich margins), and in the vicinity of the true geologic limit of natural prolongation.67
A second advantage is the fact that using the precise criteria set out in Article76(4) allows courts an objective method to determine the extent of continental shelf entitlement. It avoids the difficulties faced by previous courts on
deciding the meaning of natural prolongation or determining which is the most
natural prolongation of a coastal State. The fact that any proof regarding natural
prolongation will have the implicit uncertainty and speculative quality inherent in geophysical evidence68 is one of the reasons courts have been so disinclined to take into account geophysical factors in determining entitlement. For
example, in the Libya/Malta Case, Libyas scientists gave evidence that the Rift
Zone constituted a fundamental discontinuity whereas Malta gave equally compelling evidence that the data at present available was quite insufficient to prove
or disprove the existence of a fundamental discontinuity.69 The Court said:
The Court is unable to accept the position in order to decide this case, it must first
make a determination upon a disagreement between scientists of distinction as to
the more plausibly correct interpretation of apparently incomplete scientific data;
for a criterion that depends upon such a judgment or estimate having to be made
by a court, or perhaps negotiating governments, it is clearly inapt to a general rule
of delimitation.70
After the Bangladesh/Myanmar Case, it may be difficult for China to continue to
argue that natural prolongation is still a valid basis of entitlement under international law. The test of whether it is entitled to an extended continental shelf
is whether it can meet the requirements in Articles 76(46) of LOSC and not
whether the Okinawa Trough constitutes a separation of the continental shelf of
Japan and China.
That said, could China argue that the ICJ or arbitral tribunals have never considered a geophysical feature as significant as the Okinawa Trough and therefore
the above cases can be distinguished? The Okinawa Trough is a significant feature, arguably more significant than the features considered in the previous cases.
67Philip A. Symonds, Olav Eldholm, Jean Mascle, Gregory F. Moore, Characteristics of
Continental Margins, in Chris Carleton and Peter Cook (eds.), Continental Shelf Limits:
The Scientific and Legal Interface (Oxford: Oxford University Press, 2000), 2564, 29.
68Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries,
182.
69Libya/Malta Case, paragraph 41.
70Ibid.
the china-japan dispute over entitlement in the east china sea 309
In the 1977 Anglo-French Arbitration, the Tunisia/Libya Case and the Gulf of Maine
Case, all the features under discussion were found to be relatively minor.71 The
Norwegian Trough in the North Sea Continental Shelf Cases has been the only geomorphologic feature accepted by an international court as disrupting the unity of
the continental shelf,72 although it ultimately chose to ignore this for delimitation
purposes.73 The Norwegian Trough is a belt of water 200650 metres deep and
about 430 km long, fringing the southern and south-western coasts of Norway
to a width averaging about 80110 km.74 The Okinawa Trough is 8942,719 m
deep, 900 km in length and with a width of 36150 km.75 It has been argued that
because the Okinawa Trough is more conspicuous than the Norwegian Trough,
this feature disrupts the unity of the sea bed and hence, the shelf areas in the East
China Sea separated from the Japanese coast by the Okinawa Trough cannot be
said to be the natural prolongation of the Japanese land territory.76
The other significant geophysical seabed feature which has not been directly
considered in any maritime delimitation case is the Timor Trough in the Timor
Sea. However, in the separate opinion of Vice President Sette-Camara in the Libya/
Malta Case, he notes that regarding natural boundaries, Timor Trough seems to
be the only indisputable example of a geomorphological phenomenon governing a line of delimitation. Charney has also observed that the Timor Trough is a
substantially more significant feature than any other sea-bed on which natural
prolongation arguments have been previously presented to a third-party tribunal and that this may present a direct challenge to the Libya/Malta judgment
since the case for a geologically based distinction is so strong.77 The maximum
depth of the Timor Trough is approximately 3,200 m. Although the Timor Trough
appears to be a more conspicuous feature than the Okinawa Trough which has a
2,700 m maximum depth, the existence of such a substantial submarine feature
leaves room for arguing that the Okinawa Trough could be considered in determining the extent of continental shelf entitlement of China.
Notwithstanding the above, the decision of ITLOS in the Bangladesh/
Myanmar may have made it infinitely more difficult for China to rely on natural
71 Anglo-French Arbitration, Award, paragraph 107; Tunisia/Libya Case, Judgment, paragraph 66; Gulf of Maine Case, Judgment, paragraph 46.
72North Sea Continental Shelf Cases, paragraph 45. Interestingly, UN DOC. A/13/37, the
preparatory documents for UNCLOS I (Off. Rec. Volume 1, page 39 at paragraph 20),
the view is expressed that the Norwegian Trough does not mark the separation of the
shelves.
73North Sea Continental Shelf Cases, paragraph 45.
74Gao, The Okinawa Trough Issue, 170.
75Ibid.
76Ibid., 169.
77Charney, International Maritime Boundaries for the Continental Shelf: The Relevance
of Natural Prolongation, 1023.
310
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rolongation as a basis of entitlement in the East China Sea.78 The case suggests
p
that the only way China can justify its entitlement to an extended continental
shelf beyond 200 nautical miles if it meets the requirements in Article 76(4) of
LOSC necessary to establish the outer continental margin. This has its own particular challenges which will be dealt with below.
Chinas Entitlement based on the Outer Edge of the
Continental Margin
Article 76(4) of the LOSC sets out the geophysical criteria that States need to meet
before they can establish the outer edge of their continental margin. There are
two options. First, States can delineate a line by reference to the outermost fixed
points at each of which the thickness of sedimentary rocks is at least 1 per cent
of the shortest distance from such point to the foot of the continental slope.79
Second, States can delineate a line by reference to fixed points not more than
60 nautical miles from the foot of the continental slope.80 In both its Preliminary Information and Partial Submission to the CLCS, China relies on the second
option and states that the foot of the continental slope is located on the west
slope of the Okinawa Trough from which the point at a distance of 60 nautical
miles from the foot of the slope can also be identified.81 As mentioned above,
Japan has protested both Chinas submission of Preliminary Information and its
Partial Submission. Amongst other things, it has stated:
It is indisputable that the establishment of the outer limits of the continental shelf
beyond 200 nautical miles in an area comprising less than 400 nautical miles and
subject to the delimitation of the continental shelf between the States concerned
cannot be accomplished under the provisions of the Convention.82
Quite apart from whether China has met the requirements in Article 76(4),
Japans protest has raised a critical question, namely whether China is legally
entitled to an extended continental shelf beyond 200 nautical miles in areas less
than 400 nautical miles under current principles of international law. This will
be dealt with in the next section.
78It should be noted that the Chinese Judge, Judge Gao Zhiguo, in the Bangladesh/
Myanmar Case issued a separate opinion which mounted a spirited defense of the
natural prolongation principle.
79Article 76(4)(a)(i), LOSC.
80Article 76(4)(a)(ii), LOSC.
81 See Preliminary Information Indicative of the Outer Limits of the Continental Shelf
Beyond 200 Nautical Miles of the Peoples Republic of China, 3; Executive Summary of
Submission by Peoples Republic of China Concerning the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles in Part of the East China Sea, 3;
82Japans Note Verbale, dated 23 July 2009; Japans Note Verbale dated 28 December
2012.
the china-japan dispute over entitlement in the east china sea
311
Is China Entitled to an Extended Continental Shelf in the
East China Sea?
Prima facie, there is nothing in the text of UNCLOS that prohibits extended continental shelf entitlements in areas less than 400 nautical miles. One can speculate
that the negotiators of LOSC did not envisage the possibility of a State making an
extended continental shelf submission in areas less than 400 nautical miles from
another State (just as they did not anticipate the number of extended continental
shelf submissions that have been made to date).83
The crux of the issue is that if China does have an extended continental shelf up
to the Okinawa Trough in the East China Sea, it would significantly deprive Japan
of its entitlement to its 200 nautical miles EEZ and distance-based continental
shelf, which it is entitled to under the LOSC. On the other hand, if China were
found not to be entitled to an extended continental shelf in the East China Sea
(even though it has met the requirements in Article 76(4)), it would also be
deprived of a large portion of its continental shelf which it has unwaveringly and
consistently claimed, and which exists ipso facto and ab initio.84
The fact is that the validity of an extended continental shelf in areas less than
400 nautical miles is an issue that has not been conclusively decided under
international law. Many will argue that the law since the entrenchment of the
200 nautical miles EEZ regime and the Libya/Malta Case precludes an extended
continental shelf claim from being made in areas less than 400 nautical miles
(see discussion in the next section on The Primacy of the EEZ). However, as will
be explained below, there are arguments that can be made supporting Chinas
entitlement beyond 200 nautical miles as well as against Chinas entitlement
beyond 200 nautical miles. Much of the problem stems from the fact that the
LOSC validated a regime (i.e. the EEZ) which included both the water column and
the seabed, without clarifying the relationship between the EEZ and the continental shelf. This will elaborated on below.
The Primacy of the EEZ
Japan can argue that China does not have a legal entitlement to extended continental shelf in areas less than 400 nautical miles because the only entitlement in such situations is an entitlement to an EEZ only or at the very most,
83In 1978, the UN drew up a list of States which may have extended continental shelves
and it numbered at 33 whereas todate, there are 59 submissions: See The Establishment of the Outer Limits of the Continental Shelf Beyond 200 Nautical MilesIts
International Circumstances and its Scientific and Technical aspects, Report by the
Ocean Policy Research Foundation In Cooperation with the Ministry of Foreign Affairs
of Japan, United Nations University and Japan Coast Guard, 14 available at http://www
.sof.or.jp/en/report/pdf/200803_ISBN%20978-4-88404-199-1.pdf.
84As reflected in Article 77(3), LOSC.
312
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an entitlement to an EEZ and distance-based continental shelf. This is on the
basis that within 200 nautical miles, the EEZ has absorbed or has trumped
the continental shelf. Advocates of the argument that the EEZ has had the effect
of eclipsing the continental shelf to the extent that there is, in reality, only one
zone85 argue that under LOSC, the continental shelf regime and the EEZ regime
essentially give the coastal State the same sovereign rights over the seabed and
subsoil up to 200 nautical miles.86 All States are entitled to claim a 200 nautical miles EEZ and continental shelf regardless of the extent of their continental
margin. The law has developed to such an extent that the EEZ has now subsumed
the continental shelf regime within 200 nautical miles. This is supported by the
finding in the Libya/Malta Case that for areas situated at a distance of under
200 nautical miles from the coasts in questions, title solely depends on the distance from the coast and any areas of sea-bed claimed by way of continental
shelf and the geological or geomorphological characteristics of those areas are
completely immaterial.87 Although the ICJ in that case stated that this does not
mean that the EEZ regime has absorbed the continental shelf within 200 nautical miles, as noted by Robert Kolb, despite the Courts denials, its reasoning was
on the primacy of the exclusive economic zone over the continental shelf. The
former not only absorbed the latter but impressed its own criteriondistance
upon it. In a sense, the water triumphed over the soil and subsoil.88
Further, there is also some judicial support in separate or dissenting opinions for the idea that the continental regime has been subsumed by the EEZ
regime.89 For example, in the Tunisia/Libya Case, Judge Arechaga, in a separate
opinion, noted that, at least in the case of continental shelves not extending
beyond 200 nautical miles, the notion of the continental shelf was in the process
of being incorporated in that of the EEZ.90 Judge Oda in his dissenting opinion
noted that this trend towards the absorption of the continental regime into that
of the exclusive economic zone is too pronounced to be ignored.91
Under the terms of LOSC itself, there are also crucial differences between the
inner continental shelf within 200 nautical miles and the outer continental
shelf beyond 200 nautical miles which speaks in favour of the homogeneity of
85Malcolm Evans, Delimitation and the Common Maritime Boundary, British Yearbook
of International Law, 64 (1993): 286.
86Surya P. Sharma, The Single Maritime Boundary Regime and the Relationship between
the Continental Shelf and the Exclusive Economic Zone International Journal of Estuarine and Coastal Law, 2 (1987): 203, 212; Evans, Delimitation and the Common Maritime Boundary, 290.
87Libya/Malta Case, Judgment, paragraph 39.
88Kolb, Case Law on Equitable Maritime Delimitation, 331.
89See generally, Sharma, The Single Maritime Boundary Regime, and Evans, Delimitation and the Common Maritime Boundary.
90Tunisia/Libya Case, Separate Opinion of Judge Arechaga, paragraphs 55 and 56.
91 Tunisia/Libya Case, Dissenting Opinion of Judge Oda, paragraph 129.
the china-japan dispute over entitlement in the east china sea 313
regimes within the 200-mile zone.92 For example, in the outer continental shelf,
State Parties to LOSC are obliged to make payments or contributions in kind in
respect of the exploitation of the non-living resources93 and the waters above
are high seas.94
If the EEZ has indeed subsumed the continental shelf within 200 nautical
miles, and the overlapping entitlement between China and Japan is to an EEZ
only, then China has no legal entitlement to a continental shelf beyond 200 nautical miles in areas of less than 400 nautical miles.
Even if the EEZ has not absorbed the continental shelf within 200 nautical
miles, Japan could still argue that China does not have a legal entitlement to a
continental shelf beyond 200 nautical miles on the basis that Chinas entitlement in the East China Sea is to a 200 nautical mile EEZ and a 200 nautical mile
distance-based continental shelf. There can be no entitlement to an extended
continental shelf for the same reasons mentioned above in relation to the EEZ.
The Primacy of the Extended Continental Shelf
If China meets the requirements in Article 76(4), it may be able to argue that
the only entitlement that matters in the East China Sea is an entitlement to
an extended continental shelf. This is on the basis that Chinas entitlement to the
extended continental shelf trumps entitlement to Japans distance-based continental shelf and the EEZ.
There is arguably some legal basis to this argument. First, the outer continental
shelf regime developed separately and prior to both the distance-based continental shelf and the EEZ. The continental shelf regime had existed in international
law from the Truman Proclamation in 1945, before the development of the EEZ.
The concept of the EEZ was initially motivated by the increasing assertion of
States to exclusive fishing zones (EFZs) from their coasts.95 EFZs developed in
tandem with the sea-bed claims of States and it was inevitable that there was
an attempt to merge claims to the water column and claims to seabed resources
into one resource zone concept, combining the essential elements of both.96 In
1971, during the negotiations of LOSC, Kenya proposed the concept of the EEZ to
be a zone relating to all of the natural resources of adjacent seas, including the
sea-bed and water column.97 The distance of 200 nautical miles had no general
92Sharma, The Single Maritime Boundary Regime, 224.
93Article 82, LOSC.
94Articles 77 and 78, LOSC.
95Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart
Publishing, 2010), 83.
96Evans, Relevant Circumstances and Maritime Delimitation, 34.
97Rothwell and Stephens, International Law of the Sea, 83.
314
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geographical, ecological or biological significance98 and was accepted for pragmatic reasons that it represented the most extensive claims then in existence.99
The fact that the EEZ also covered the seabed meant that States had to consider the impact on the continental shelf which also covered the seabed. Some
States thought the continental shelf regime should be abandoned and its seabed
jurisdiction absorbed by the EEZ,100 whereas most advocated its retention as a
separate concept additional to the EEZ.101 Accordingly, after it was decided to
retain the separate concept of the continental shelf, LOSC could either harmonize the content of the legal interestso that it did not matter which regime
was operable within 200 nautical miles of the coast or both regimes could have
the same extent, with a priority given to one over the other.102 The definition
of the continental shelf in Article 76 was ultimately a compromise that incorporated both elements. The rights afforded to the coastal State over the seabed
were essentially the same under the EEZ and continental shelf up to 200 nautical
miles, accommodating the views of States with narrow shelves through the recognition of the distance-based shelf. However, it also recognised the rights of the
broad margin states by allowing them to claim beyond 200 nautical miles when
their physical shelf extended beyond that distance.103
Accordingly, one could argue, first, that Article 76 implies a hierarchy between
the outer continental shelf and the distance-based continental shelf and this is
reflected in the history and plain reading of Article 76 itself. The distance-based
continental shelf was not motivated by a desire to redefine the conceptual basis
of continental shelf jurisdiction but to accommodate and facilitate the emerging EEZ regime.104 The ICJ in the Tunisia/Libya Case arguably supported this
interpretation when it observed that the definition of the continental shelf in
Article 76 contains two parts, and that natural prolongation of the land territory
was the main criterion and that distance of 200 nautical miles was, in certain circumstances, the basis of the title of a coastal State.105 The Libya/Malta Case also
arguably recognised this when it stated that when the continental margin does
not extend as far as 200 nautical miles from the shore, natural prolongation...is
in part defined by distance from the shore.106
98Robin
R. Churchill and A. Vaughan Lowe, The Law of the Sea, 3rd Edition (Manchester:
Manchester University Press, 1999), 163.
99Rothwell and Stephens, International Law of the Sea, 84.
100Evans, Relevant Circumstances and Maritime Delimitation, 35 citing the examples of
Switzerland, Congo, Egypt and Malta.
101 Ibid., 35, note 18.
102Ibid., 36.
103Ibid., 53.
104Ibid., 53.
105Tunisia/Libya Case, Judgment, paragraph 47 (emphasis added).
106Libya/Malta Case, Judgment, paragraph 34.
the china-japan dispute over entitlement in the east china sea 315
It could also be argued that there is an inherent hierarchy between the continental shelf and the EEZ under LOSC. First, under Article 56(3), rights set out
in this Article with respect to the seabed and subsoil shall be exercised in accordance with Part VI (on the continental shelf). This implies that EEZ rights are
governed by the continental regime or that the EEZ is derivative from the continental shelf and thus subordinate to it.107 Further, it is argued that the crucial
distinction between the continental shelf and the EEZ, which underscores the
formers superiority, is the fact that continental shelf rights are inherent while
EEZ rights must be claimed. As Article 77 of LOSC states:
2.The rights referred to in paragraph 1 are exclusive in the sense that if the coastal
State does not explore the continental shelf or exploit its natural resources, no
one may undertake these activities without the express consent of the coastal
State.
3.The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
As put by Evans:
...a continental shelf automatically appertains to a State by operation of law. The
1982 Convention makes this clear by repeating the corresponding provisions of
the 1958 Convention, which was described by the Court as enshrining the most fundamental rule concerning the continental shelfthat the rights in the natural prolongation of a State exist ipso facto and ab initio. On the other hand, not all States
possess EEZs and they do not automatically appertain to coastal States. International
law allows states to claim EEZs but they do not exist ipso facto and ab initio.108
The implication of the primacy of the extended continental shelf is that even if
there is an element of fusion between the EEZ and distance-based continental
shelf,109 this only applies when the geological shelf does not extend to 200 nautical miles. In other words, Japan, as a narrow margin State, would only be able to
claim continental shelf up to a distance of 200 nautical miles and an EEZ only
when there was no entitlement to outer continental shelf.110 However, when the
geological shelf does extend beyond 200 nautical miles, a State cannot claim an
EEZ or a distance-based continental shelf in an area over which another State
already has a continental shelf which exists ipso facto and ab initio.111
107Chris Cook, Filling the GapDelimiting the Australia-Indonesia Maritime Boundary,
Australian Yearbook of International Law, 10 (19811983): 131, 165; Evans, Delimitation
and the Common Maritime Boundary, 287.
108Evans, Relevant Circumstances and Maritime Delimitation, 55.
109Ibid., 3239.
110 Ibid., 54; Gao, The Okinawa Trough Issue, 164.
111 Evans, Relevant Circumstances and Maritime Delimitation, 55.
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Separate Entitlement to Distance-Based Continental Shelf and Extended
Continental Shelf
There is also the third argument, which is arguably a compromise between the
two extremes described above. This is based on the idea that there are two definitions of continental shelf, the distance-based continental shelf and the extended
continental shelf, and neither of them have precedence or priority over each
other.
There are ample grounds to justify this. As mentioned above, Article 76(1) of
LOSC contains two definitions of the continental shelf, that is, to the outer edge
of the continental margin or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance. LOSC
intended to provide two definitions of the continental shelf to accommodate the
views of the States with a broad continental margin and States with a narrow
continental margin. The States with a broad continental margin, using the North
Sea Continental Shelf Cases, expressed a preference for two limits, one based on
distance of up to 200 nautical miles and another based on the outer limit of
the continental margin.112 They argued that under existing law at the time, the
entire continental margin was subject to their exclusive rights and any diminution
of the rights of the coastal State over the continental shelf would be inequitable.113
On the other hand, the narrow margin States expressed a preference for a limit up
to 200 nautical miles114 to accommodate the EEZ and to ensure that not all States
could claim a continental shelf beyond 200 nautical miles at the expense of the
deep seabed area which was the common heritage of mankind.115 Accordingly,
Article 76 was a compromise intended to accommodate the views of both the
11216th Meeting, (26th July 1974)20th Meeting (30 July 1974) of the Second Session; Third
United Nations Conference on the Law of the Sea, Official Records, Volume II, at 147165.
Those delegations supporting the idea of two alternative limits included Australia, the
Republic of Korea, Spain, El Salvador, Argentina, Ecuador, Vietnam, Norway, Cuba and
the Federal Republic of Germany. Alex Oude Elferink notes that it is unlikely that
before the negotiations on what was to become Article 76 started, the legal continental
shelf extended to the outer edge of the continental margin, as was submitted by the
group of broad margin States. At the same time, the legal continental shelf did extend
well beyond the 200 nautical mile limit in certain parts of the word: See Alex G. Oude
Elferink, Article 76 of the LOSC on the Definition of the Continental Shelf: Questions
concerning its Interpretation from a Legal Perspective, International Journal of Marine
and Coastal Law, 21 (2006): 269285, 274.
113Statement of Australia in 16th Meeting, (26th July 1974)20th Meeting (30 July 1974)
of the Second Session; Third United Nations Conference on the Law of the Sea, Official
Records, Volume II, at 147.
114Trinidad and Tobago, Denmark, Tunisia.
115See generally, Michael D. Morin, Jurisdiction Beyond 200 nm: A Persistent Problem,
California Western International Law Journal, 10 (1980): 514, 524526.
the china-japan dispute over entitlement in the east china sea 317
broad margin States and the narrow margin States.116 The Virginia Commentary
also provides that a coastal State may apply either a geomorphologic criterion or
a distance criterion in determining the outer limit of its continental shelf.117
On this reasoning, the finding in Libya/Malta that distance is the sole title
of continental shelf within 200 nautical miles is incorrect. As argued by Judge
Oda in his dissenting opinion in the Libya/Malta case, a logical analysis of these
words will show that Article 76 thus offers is not, as the Judgment seems to suggest, two complementary definitions of the (legal) continental shelfhence two
complementary criteria for determining its appurtenance, but two radically alternative definitions.118 He goes on to state that the Courts finding that distance was
the sole basis of title within 400 nautical miles would have been open to challenge had the sea-bed in the present case featured, not a rift-zone, but the outer
edge of a continental margin.119
The Court would then almost certainly have had to weigh the merits of two convincing claims invoking the sense of Article 76, the one based on geomorphology, the
other relying on distance. As it happens, the only real problem before the Court was
actually that of discerning the rule for the division of a single maritime area homogeneous in terms of the 200-mile distance criterion.120
Accordingly, a better interpretation of Article 76(1) is that there are two definitions of continental shelf, which coastal States can apply depending on the extent
of their continental margin. A coastal State is entitled to a 200 nautical mile continental shelf only when the continental margin of that coastal State does not extend
up to that distance,121 that is, the geological shelf is less than 200 nautical miles.
Distance is clearly the basis of entitlement in such cases. However, a coastal State
whose continental shelf extends beyond its territorial sea through the natural
prolongation of its territory to the outer edge of the continental margin, it is the
outer continental margin and not distance that forms the basis of entitlement.
116 Elferink notes that Article 76 to a very considerable extent accommodates the views
of the broad margin States but they made some concessions such as Article 82 which
provides that the coastal State shall make payments and contributions with respect to
the exploitation of the continental shelf beyond 200 nautical miles to the international
community and the detailed provisions on the establishment of the outer limits may
in certain cases result in an outer limit considerably landward of the outer edge of
the continental margin. See, Elferink, Article 76 of the LOSC on the Definition of the
Continental Shelf, 274.
117 Myron Nordquist, Satya Nandan and Shabtai Rosenne (eds.), The United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II (Leiden: Martinus Nijhoff
Publishers, 1993), 841.
118 Libya/Malta Case, Dissenting Opinion of Judge Oda, paragraph 61.
119 Ibid.
120Ibid.
121 Nordquist et al., Commentary on LOSC, 841. Gao, The Okinawa Trough Issue,165.
318
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Accordingly, the distance criteria and the outer continental margin criteria are
two distinct bases for entitlement for both wide margin States and narrow margin
States separately. Distance is the basis for title when the physical continental
margin does not extend up to 200 nautical miles whereas natural prolongation
is the basis of title when the continental margin does extend beyond 200 nautical miles.
On this reasoning, Japan has distance-based entitlement up to 200 nautical
miles of legal shelf regardless of the Okinawa Trough. However, China has an
equally valid claim to its shelf based on natural prolongation/outer continental
margin entitlement. As stated by the arbitral tribunal in the Guinea/Guinea-Bissau
Case, the rule of distance reduced the scope of the rule of natural prolongation
by substituting it in certain circumstances122 and there is neither priority nor
precedence between them.123
The implications of this are that in the East China Sea, there is an overlapping
entitlement between Chinas extended continental shelf and Japans distancebased shelf. This is equivalent to an overlap between entitlement to extended continental shelf and EEZ. As explained above, the distance-based shelf was negotiated
to take into account of the 200 nautical miles EEZ. LOSC intended for there to
be a degree of harmonization or fusion between the EEZ and the distance-based
shelf recognised under Article 76(1).124 The basis of title for both the EEZ and
distance-based shelf is distance from the shore. Accordingly, there is symmetry
in an overlap between entitlement to extended continental shelf and distance-based
shelf and an overlap between entitlement to extended continental shelf and EEZ as
both essentially involve an overlap between title based on natural prolongation/
outer continental margin and title based on distance. The upshot of this analysis
is that China has an extended continental shelf claim that overlaps with Japans
distance-based shelf/EEZ.
Implications for Maritime Delimitation
The different views of China and Japan on entitlement in the East China Sea
inevitably have an effect on the applicable delimitation principles each prefers.
As mentioned above, China has emphasized the principle of equitable solution
through negotiations rather than equidistance whereas Japan has argued for an
equidistant boundary with China.
Articles 74(1) and 83(1) of LOSC set out the applicable principles for delimitation of the EEZ and continental shelf in identical terms, namely delimitation shall
122Guinea/Guinea-Bissau Case, Award, paragraph 115.
123Ibid., paragraph 116.
124Evans, Relevant Circumstances and Maritime Delimitation, 3239.
the china-japan dispute over entitlement in the east china sea 319
be effected on the basis of international, as referred to in Article 38 of the Statute
of the ICJ, in order to achieve an equitable solution.
There are two distinct phases in international jurisprudence interpreting these
articles. The first phase from 1969 to 1992125 has been characterised as the equitable principles-relevant circumstances phase.126 Delimitation was to be effected
in accordance with equitable principles or equitable criteria, taking account of all
the relevant circumstances, in order to achieve an equitable result. The underlying premise of this fundamental norm is the emphasis on equity and the rejection of any obligatory method.127 Instead, the goal of achievement of equitable
results was the most important in delimitation (as opposed to the method of
delimitation).128 Chinas focus on equitable solution is consistent with this phase
in international jurisprudence.
This approach was modified in the second phase that began in later cases from
1993 onwards which found that the equitable principles-relevant circumstances
rule as it had been adopted since 1958 is closely interrelated129 or very similar130
to the equidistance-special circumstances method applicable to the delimitation
of the territorial sea.131 While the need for an equitable solution is still the defining goal, the courts have now set out a definite methodology in order to achieve
such an equitable solution, which was recently stated to consist of three steps
in the 2009 Black Sea Case.132 In short, the court will first establish a provisional
delimitation line; second, it will consider whether there are any factors calling for
the adjustment of the provisional equidistance line (i.e. relevant circumstances);
third, the court will verify that the line does not, as it stands, lead to an inequitable result by reason of any marked disproportion between the ratio of the
respective coastal lengths and the ratio between the relevant maritime area of
each State by reference to the delimitation line. Japans emphasis on equidistance
125North Sea Continental Shelf Cases; Gulf of Maine Case; Tunisia/Libya Case; Libya/Malta
Case; Guinea/Guinea Bissau Case and St. Pierre and Miquelon Case, 31 (1992) ILM.
126See, for example, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening) (2002) ICJ Reports 303, at paragraph 288;
Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, 2nd
Edition (Leiden: Martinus Nijhoff Publishers, 2005), 221.
127St. Pierre and Miquelon Case, paragraph 38.
128Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Nicaragua/Honduras
Case, paper presented at the International Law Association British Branch, 5 March
2008 available at, <http://www.zaoerv.de/68_2008/68_2008_4_a_903_938.pdf>.
129Maritime Delimitation and Territorial Questions between Qatar and Bahrain (2001) ICJ
Reports 40, paragraph 231.
130Cameroon/Nigeria, paragraph 228.
131 See Article 15, LOSC.
132Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, (2009) ICJ
Reports 61, paragraphs 115122.
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is supported by this second phase in jurisprudence and is arguably more consistent with current trends in maritime delimitation law.
There is no doubt that the nature of overlapping entitlements in the East China
Sea will determine the applicable methodology and principles for delimitation.
For example, if China does not have an extended continental shelf claim in the
East China Sea, and the overlapping entitlements are only to overlapping EEZs,
the three-stage test would be the most appropriate method delimitation, and the
applicable boundary a median line.
Similarly, if China does have an entitlement to an extended continental shelf
which overlaps with Japans distance-based shelf or EEZ, this would affect the
applicable methodology and principles for delimitation. Indeed, the existence of
an overlapping entitlement between distance-based title and outer continental
margin title raises unique issues when it comes to delimitation. As noted by Judge
Oda in his dissenting opinion in the Jan Mayen Case that there are in fact no
rules of law for effecting a maritime delimitation in the presence of overlapping
titles...and that the court could only decide a case ex aequo et bono.133
In this regard, if China does have an extended continental shelf entitlement,
a court or tribunal may very well find that the three-stage test with its emphasis on equidistance will not achieve an equitable solution.134 For example, to
apply equidistance, even on a provisional basis, would completely deny China
the whole of its entitlement to an outer continental shelf which exists ipso facto
and ab initio. While the exercise of delimitation may necessarily involve a result
whereby China is unable to claim some of its entitlement, using equidistance
would involve China giving up its entire continental shelf entitlement which it is
entitled to under law.135
In addition, if the three-stage test is used, the fact that China has an extended
continental shelf may also be a relevant circumstance that would warrant the
adjustment of the provisional equidistance line for a continental shelf boundary.
On the basis that factors that play a part in the establishment of title (Article 76 (4)
employs both geologic and geomorphological criteria) should be taken into
account as relevant circumstances in delimitation,136 one cannot exclude geophysical factors from consideration.137
133Maritime Delimitation in Area between Greenland and Jan Mayen (Denmark/Norway),
Judgment (1993) ICJ Reports 38, Dissenting Opinion of Judge Oda, paragraph 72.
134There is judicial precedent for not using the provisional equidistance line. For example, in the Nicaragua/Honduras Case, the court found that an equidistance line could
not produce an equitable outcome in light of the particular circumstances of the case
and applied what is known as the angle bisector method: See Territorial and Maritime
Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, (2007) ICJ Reports 659.
135Gao Jianjun has a useful analysis of possible Chinese arguments related to the inequity
of equidistance: See Gao, The Okinawa Trough Issue, 169173.
136Libya/Malta Case, paragraph 40.
137Gao, The Okinawa Trough Issue, 169173.
the china-japan dispute over entitlement in the east china sea 321
While constraints of space prohibit a detailed examination of the different
permutations of overlapping entitlements and the corresponding delimitation
principles, it is evident from the above that Chinas extended continental shelf
entitlement will play a significant role in the delimitation of boundaries.
Options for Determining Entitlement in the East China Sea
Without clarification on the nature of overlapping entitlements in the East China
Sea (and in particular whether a State is entitled to an extended continental shelf
in areas less than 400 nautical miles), delimitation of boundaries will face considerable challenges. It is true that if China and Japan were to choose to negotiate
boundaries in the East China Sea, they are not constrained by international law
and are free to agree to any boundary they want provided that the rights and
interests of third States, or of the international community are not prejudiced.138
Arguably, they could negotiate boundaries without determining the nature of
their overlapping entitlements.
However, the problem is that China and Japan can employ valid legal arguments, of varying strengths, to support their positions on entitlement. China can
validly and in good faith139 assert that the extent of its continental shelf entitlement ends at the Okinawa Trough. Similarly, Japans arguments in favour of
distance as the basis for title for continental shelves within 200 nautical miles
and the irrelevance of geophysical factors such as the Okinawa Trough within
200 nautical miles are also equally valid good faith claims in that they have
some basis under international law. This could result in an impasse in negotiations, with each side believing they have certain rights under international law
that they do not wish to give up. In the meantime, the status of the continental
shelf in the East China Sea is in legal limbo, hindering effective resource exploitation and management and increasing bilateral tensions. The question is how
China and Japan can resolve the dispute on entitlement in a way which will facilitate meaningful negotiations on boundaries.
The CLCS
The CLCS cannot decide on whether China has an entitlement beyond 200 nautical miles in an area less than 400 nautical miles. While the CLCS considers the
submission and issues recommendations on the outer limits of the continental
shelf, this process assumes that there is already a pre-existing entitlement.140 As
138Ibid.
139A good faith claim is one which has prima facie basis in international law. See Zhang,
Why the 2008 Sino-Japanese Consensus on the East China Sea has stalled, 59.
140See Alex G. Oude Elferink, Causes, consequences and solutions relating to the absence
of final and binding outer limits of the continental shelf, in C. R. Symmons (ed.), Selected
322
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noted in the Bangladesh/Myanmar Case, the existence of entitlement does not
depend on the establishment of the outer limits of the continental shelf by the
coastal State.141 It is not the role of the CLCS to decide on entitlement beyond
200 nautical miles, but only to ensure that the outer limits have been established
in accordance with Article 76.
That said, if the CLCS does make recommendations on the outer limit of
Chinas continental shelf, such recommendations will no doubt contribute to the
determination of the scientific character of the Okinawa Trough.142 For example,
if the CLCS does make a recommendation that the foot of the slope is located on
the axis of the Okinawa Trough, this would at the very least serve as evidence that
China has met the requirements in Article 76(4).
However, CLCS may not be able to consider the submission in the first place.
Under the Rules of Procedure, the CLCS shall not consider and qualify a submission made by any of the States concerned in a land or maritime dispute,
although they may consider the submission in an area under dispute with prior
consent given by all parties to such a dispute.143 Japan has protested Chinas partial submission to the CLCS arguing that a maritime dispute exists and that Japan
has not consented to CLCSs consideration of the submission.144 If the CLCS finds
that there is a dispute related to Chinas submission, it will in all likelihood not
consider the submission.145
It may be in Japans interests to consent to the CLCS considering Chinas
submission. This is because there are significant safeguards to ensure that any
recommendations made by the CLCS are without prejudice to the question of
delimitation of the continental shelf between States with opposite or adjacent
Contemporary Issues in the Law of the Sea (Martinus Nijhoff Publishers, 2011), 25327,
at 255.
141 Bangladesh/Myanmar Case, paragraph 409.
142Gao, The Okinawa Trough Issue, 155.
143Annex 1, Paragraph 5(a), Rules of Procedure of the Commission on the Limits of the
Continental Shelf.
144Japans Note Verbale dated 28 December 2012.
145There have been a number of cases where a submitting State and a third State have
shared different views over the issue of whether there was a dispute in relation to
the submission. In many of the cases, the CLCS decided that it would not consider the
submissionSee the Commissions decision not to consider the partial submission of
the United Kingdom in respect of the Falkland Islands and of South Georgia and the
South Sandwich Islands (see CLCS/66 of 30 April 2010 (available at <daccess-dds-ny
.un.org/doc/UNDOC/GEN/N10/337/97/PDF/N1033797.pdf?OpenElement>),paragraphs 5559; the Commissions decision to defer the consideration of Myanmars submission (see CLCS/64 of 1 October 2009, paragraphs 3540; CLCS/76 of 5 September
2012 (available at <daccess-ods.un.org/access.nsf/Get?Open&DS=CLCS/76&Lang=E>),
para 23; CLCS/78 of 1 April 2013 (available at <daccess-ods.un.org/access.nsf/Get?
Open&DS=CLCS/78&Lang=E>), paragraph 47); and the Commissions decision not to
establish a subcommission to consider the submission of Fiji (see CLCS/64 of 1 October
2009, paragraph 7071; CLCS/76 of 5 September 2012, para 24).
the china-japan dispute over entitlement in the east china sea 323
coasts,146 and shall not prejudice the position of States which are parties to a land
or maritime dispute.147 If the CLCS issues a recommendation that Chinas outer
continental margin is at the Okinawa Trough, there will still be the additional
legal hurdle of whether China is legally entitled to an extended continental shelf
in areas less than 400 nautical miles. Further, it will not mean that the Okinawa
Trough should be the boundary between the two States as recommendations are
without prejudice to delimitation. On the other hand, if the CLCS finds that China
has not met the requirements of the CLCS, then it will considerably strengthen
Japans bargaining position in negotiations. It should be borne in mind that, even
if Japan does consent, there is already a backlog of submissions to the CLCS and
consequently, it will take a considerable amount of time for a decision on the
outer limits to be made.
Part XV of UNCLOS
Can the parties use the compulsory procedures entailing binding decisions in
Part XV of LOSC to obtain a binding decision on Chinas entitlement beyond
200 nautical miles in the East China Sea? Article 286 of LOSC provides that any
dispute concerning the interpretation or application of the Convention can be
submitted at the request of any party to the dispute to compulsory dispute settlement. China has exercised its option under Article 298 of LOSC to opt out
of the compulsory dispute settlement procedures for disputes concerning the
interpretation or application of Articles 15, 74 and 83 relating to sea boundary
delimitations, or those involving historic bays or titles.148 However, a dispute
over the interpretation or application of Article 76 would not be covered by this
exclusion.
Accordingly, either Japan or China could unilaterally refer a dispute to an Arbitral Tribunal constituted under Annex VII149 over whether there is an extended
continental shelf entitlement under Article 76 in areas less than 400 nautical
miles. The decision in the Bangladesh/Myanmar Case makes it clear that there
is no need for the CLCS to make final recommendations on the outer limits
of the extended continental shelf for the Tribunal to decide whether the parties concerned had entitlement to the continental shelf.150 Accordingly, in the
present case, the fact that the CLCS has not considered the submission of China
146Article 76(10), LOSC; Article 9, Annex II, LOSC; Annex I, Paragraph 6, Rules of Procedure of the Commission on the Limits of the Continental Shelf.
147Annex I, Paragraph 5(b), Rules of Procedure of the Commission on the Limits of the
Continental Shelf.
148Article 298(1)(a)(i), LOSC.
149Under Article 287(5) of LOSC, if parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in
accordance with Annex VII, unless the parties otherwise agree.
150Bangladesh/Myanmar Case, Judgment, paragraphs 364 to 394.
324
tara davenport
is not a bar to an Arbitral Tribunal considering the issue of whether there can be
extended continental shelf entitlement in areas less than 400 nautical miles.
It warrants note, however, that the question of whether there can be an
extended continental shelf claim in areas less than 400 nautical miles is distinct
from the issue of whether China has met the requirements of outer continental
margin in Article 76(4). In the Bangladesh/Myanmar Case, the Tribunal found
that it could interpret Article 76 without waiting for the CLCS to issue its recommendations because the Parties did not differ on the scientific aspects of the
seabed and subsoil of the Bay of Bengal.151 The parties agreed on the geological
and geomorphological data, and the Tribunal only had to decide the legal significance of Article 76 (that is, the meaning of natural prolongation). In the present
situation between China and Japan, there may be disagreement on the geological
and geomophological data presented. An Arbitral Tribunal may not be able to
decide on the very technical question of whether China has met the requirements
in Article 76(4).
Conclusion
Until recently, Chinas arguments that it is entitled to an extended continental
shelf in the East China Sea based on natural prolongation have been perceived as
contrary to current trends in maritime delimitation law which rendered geophysical features such as the Okinawa Trough irrelevant in areas less than 400 nautical miles. However, a confluence of events has transformed the status quo. The
Bangladesh/Myanmar Case and the 2009/2012 submissions by China to the CLCS
have provided China with the opportunity of adducing verifiable and objective
evidence that it is entitled to an extended continental shelf in the East China Sea.
However, it still faces significant challenges in establishing this entitlement. From
a factual point of view, it will be unable to prove that it meets the requirements
in Article 76(4) unless Japan consents to the CLCS considering Chinas submission. From a legal point of view, it is also not clear whether China is entitled to
an extended continental shelf in areas less than 400 nautical miles. The dispute
between China and Japan on entitlement does not appear to be one that can be
resolved by negotiation, given the fact that the parties respective positions are
so far apart and at the same time, prima facie warranted under international law.
Accordingly, allowing the CLCS to consider Chinas submission and referring the
dispute over legal entitlement in areas less than 400 nautical miles to an arbitral tribunal may help clarify the overlapping entitlement in the East China Sea.
This can then set the stage for the negotiation of boundaries between China and
Japan.
151Ibid., paragraph 412.
PART four
MARITIME SECURITY AND THE LIMITS OF MARITIME JURISDICTION
Chapter fourteen
Maritime Security in the post-9/11 World:
A New Creeping Jurisdiction in the Law of the Sea?
Stuart Kaye*
Introduction
The following chapter was written as part of an edited collection in 2005
under the title: Freedom of Navigation in a Post 9/11 World: Security and Creeping
Jurisdiction in Richard Barnes, David Freestone and David Ong (eds.), The Law of
the Sea: Prospects and Problems (Oxford: Oxford University Press, 2006) 347364.
In the seven years since this chapter was written, while much has remained the
same, there have been further efforts by States to place greater restrictions on
rights at sea in the interest of security. For example, there has been a sharp rise
in the actions of pirates around the Horn of Africa, leading to the United Nations
Security Council authorising certain actions against pirates within Somalias territorial sea. There have been a number of acknowledged PSI incidents, particularly
since 2007 which seem to give a greater outline of how the PSI will operate and
what its implications for the international community might be. There have also
been moves by a number of States to provide for greater protection of undersea
pipelines and cables from both accident and deliberate sabotage, at least some
which may be in advance of what international law permits. Finally, the huge
number of continental shelf submissions and preliminary information lodgements to the Commission on the Limits of the Continental Shelf saw some States
use the opportunity to reform their law of the sea practice to substantially expand
the jurisdiction they assert. Additions to the original chapter will assess international practice in the more than half a decade since the original work was written,
to critically assess whether a case for jurisdictional creep can actually be made,
or whether fundamental rights and freedoms available to States in the worlds
oceans have essentially remained intact over this time.
*Professor of Law, Australian National Centre for Ocean Resources and Security
(ANCORS), University of Wollongong, Australia.
328
stuart kaye
The phrase creeping jurisdiction has been applied by a number of publicists
to the gradual extension of State jurisdiction offshore in the law of the sea through
the course of the Twentieth Century.1 The phase aptly captures the nature of this
change, as States have slowly increased their control over progressively wider
areas. For example, in 1900, the width of the territorial sea would have been
accepted as 3 to 4 nautical miles. By the Second United Nations Conference on
the Law of the Sea (UNCLOS II) in 1960 the favoured proposal of 6+6 nautical
miles for the territorial sea and contiguous zone was only just short of achieving
the required two-thirds majority of participating States. Under the current United
Nations Convention on the Law of the Sea (LOSC),2 and confirmed by international
practice, the territorial sea is now 12 nautical miles wide. Similar observations
could be made in respect of resource jurisdiction, with the emergence of the continental shelf with the Truman Proclamation in 1945, and the exclusive economic
zone (EEZ) growing out of Latin American and African practice to be confirmed
at the Third United Nations Conference on the Law of the Sea (UNCLOS III).3
It might have been thought that jurisdictional creep had ended with the conclusion of the LOSC in 1982, and such a conclusion would find support in the
general lack of acceptance of States attempting to grab jurisdiction beyond what
the Convention permits. Neither the Chilean presential sea4 nor the Canadian
extension of jurisdiction over the Grand Banks have received much in the way
of international support.5 Rather than an extension of national jurisdiction to
resolve the problems facing high seas marine living resources, the international
community has thrown its energy into cooperative arrangements, facilitated by
regional fisheries organisations.
1 For example see, John A. Knauss, Creeping Jurisdiction and Customary International
Law, Ocean Development and International Law, 15 (1985): 209; Barbara Kwiatkowska,
Creeping Jurisdiction beyond 200 nautical miles in the Light of the Law of the Sea
Convention and State Practice, (1991) 22 Ocean Development and International Law,
22 (1991): 159.
2United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3.
3The history of the width of the territorial sea, and the emergence of the continental
shelf and EEZ has been ably recorded by a number of publicists: see Robin R. Churchill
and A. Vaughan Lowe, The Law of the Sea (Manchester: University of Manchester Press,
1999); Constantine John Colombos, The International Law of the Sea (London: Longman,
1967).
4See, Christopher C. Joyner and Peter N. de Cola, Chiles Presential Sea Proposal: Implications for Straddling Stocks and the International Law of Fisheries, Ocean Development
and International Law, 24 (1993): 99.
5See, Peter G. G. Davies and Catherine Redgwell, The International Regulation of Straddling Fish Stocks British Yearbook of International Law, 67 (1996): 199; Christopher C.
Joyner and Alejandro A. von Gustedt, The Turbot War of 1995: Lessons from the Law of
the Sea, International Journal of Marine and Coastal Law, 11 (1996): 425.
maritime security in the post 9/11 world
329
However, this chapter will consider whether contemporary practice may lead
to a further creeping of jurisdiction, not in a further grab for resources, but in an
effort by States to provide themselves with greater security from threats from the
sea. It will examine contemporary and emerging practice in respect of maritime
security, and address the question whether seeking greater control over security
is the next generation of jurisdictional creep, and what erosion of existing freedoms might occur.
Security Jurisdiction under the LOSC
The LOSC does not deal with security issues to a significant extent. It almost
completely avoids consideration of the law of naval warfare, and references to
security matters are not dealt with in a single location, but rather in the context
of other matters. Such references as there are can be found concentrated in the
context of the regime of innocent passage, where the coastal State may temporarily suspend innocent passage for the purposes of essential security protection,6
and where different activities are deemed to be prejudicial to the peace, good
order or security of the coastal State if they occur on board a foreign ship in the
territorial sea of the coastal State.7
Article 19 of the LOSC indicates the activities of a vessel that are considered
inconsistent with a right of innocent passage:
1. Passage is innocent so long as it is not prejudicial to the peace, good order or
security of the coastal State. Such passage shall take place in conformity with this
Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good
order or security of the coastal State if in the territorial sea it engages in any of the
following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or
political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the
United Nations;
(b) any exercise or practice with weapons of any kind;
6Article 25(3) of the LOSC provides:
The coastal State may, without discrimination in form or in fact among foreign ships,
suspend temporarily in specified areas of its territorial sea the innocent passage of
foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly
published.
A provision with similar effect extends the same right to an archipelagic State in respect
of archipelagic waters where innocent passage may be exercised. See Article 52(2),
LOSC.
7Article 19, LOSC.
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stuart kaye
(c) any act aimed at collecting information to the prejudice of the defence or
security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the
coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary
to the customs, fiscal, immigration or sanitary laws and regulations of the
coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any
other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
This list does not render passage undertaken by warships, or even squadrons of
warships contrary to innocent passage, nor does it permit a coastal State from
excluding warships from its waters for failure to notify the coastal State or seek its
authorisation. This is supported by the view taken by the International Court of
Justice in the Corfu Channel Case of the passage of the four British warships along
the Channel that led to the damage to HM Ships Saumarez and Volage.8
It is notable that the Convention permits a wider definition of security than
what might ordinarily inferred from the word alone. While the term security is
typical linked to military security in most contexts, it is notable that the reach of
the restrictions on activities deemed non-innocent for passage include a wider
range of issues. In addition to essentially military activities such as weapons testing and threats of force, other matters which might be deemed harmful to the
security of the sovereignty of the coastal State are also inconsistent with innocent
passage. These include harm to the marine environment, through pollution or
illegal fishing, the undermining of State quarantine and customs control, or the
transmission of propaganda. This broader definition of security is not appropriate in all contexts, even within the Convention, but it will be used within this
chapter to deal with efforts by States based on protecting their interests to restrict
freedom of navigation in their adjacent waters.
Freedom of navigation beyond the territorial sea has its origins in Hugo
Grotius response to the Spanish and Portuguese claims of control over the
oceans and territories outside of Europe by virtue of the Papal Bull9 and Treaty of
Tordesillas.10 These documents purported not only to give control over territory
Channel (United Kingdom v Albania) (1949) ICJ Reports 4.
Inter Caertera of Pope Alexander VI, done on 4 May 1493, reprinted at, http://
bullsburning.itgo.com/essays/Caetera.htm#theBull.
10Treaty of Tordesillas, done at Tordesillas on 7 June 1494, ratified by Spain 2 July 1494,
ratified by Portugal 5 September 1494: reproduced at http://www.yale.edu/lawweb/
avalon/modeur/mod001.htm.
8Corfu
9Bull
maritime security in the post 9/11 world
331
outside of Europe, but also provided for exclusive seaborne trading rights in the
South Atlantic and Indian Oceans.11 In reaction to this assertion, Grotius produced his seminal work, Mare Liberum, asserting that the oceans were incapable
of appropriation by States, and that the ships of any State could journey anywhere on the worlds oceans.12
In the modern law of the sea, freedom of navigation was equally perceived as
important, and this status was reflected in the now superseded Geneva Conventions on the law of the sea. Freedom of navigation on the high seas was guaranteed in Article 2 of the Convention on the High Seas,13 with Article 3 of the
Convention on the Continental Shelf ensuring that the status of waters above a
States continental shelf remained as high seas, and therefore enjoying freedom
of navigation.14 The LOSC therefore maintains the approaches found in the Corfu
Channel Case and the Geneva Law of the Sea Conventions.
Beyond the territorial sea, the LOSC also confirms there is freedom of navigation for all vessels. This is essentially applicable for the EEZ and high seas areas
beyond it. Article 87 of the LOSC provides:
1. The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for
coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted
under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2.These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also
with due regard for the rights under this Convention with respect to activities in
the Area.
While the LOSC makes it clear there is freedom of navigation on the high seas,
the same freedom is extended to the EEZ by Article 58(1):
11 Colombos, The International Law of the Sea, 4849; Hugo Caminos, Sources of the Law
of the Sea in Rene-Jean Dupuy & Daniel Vignes, A Handbook of the New Law of the Sea
(Dordrecht: Martinus Nijhoff, 1991), 29, 6465.
12Hugo Grotius, The Freedom of the Seas (New York: Carnegie Endowment for International Peace, reprinted 1952).
13Convention on the High Seas, opened for signature 29 April 1958, entered into force
30 September 1962, 450 UNTS 82.
14Convention on the Continental Shelf, opened for signature 29 April 1958, entered into
force 10 June 1964, 499 UNTS 311.
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In the exclusive economic zone all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article
87 of navigation and overflight and of the laying of submarine cables and pipelines,
and other internationally lawful uses of the sea related to these freedoms, such as
those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
The right of freedom of navigation on the high seas and the EEZ is circumscribed
by the notion of due regard for the rights of others. As such, if a State is lawfully fishing, or engaged in exploration or exploitation of seabed resources, other
States ought not prejudice or interfere with that activity in undertaking their
rights. As such, it is clear that undertaking military exercises on the high seas
and EEZ of another State would be subject to the non-interference with the rights
of other users.15
Military Security
A number of States have sought to apply restrictions on vessels navigating in their
territorial waters or their vicinity for the purpose of safeguarding their security.
Such measures have no explicit support within the LOSC, and implicit support
only insofar as the LOSC indicates passage through the territorial sea ought not
prejudice international peace and security. The coastal State has the ability to
regulate certain matters with respect to a vessel exercising a right of innocent
passage, although these do not refer to security interests.16 Rather they are essentially limited to ensuring that the territorial sea remains an area where navigation
is safe, criminal activity to avoid immigration or customs control is prohibited,
and unauthorised fishing and pollution do not occur.
15See Bernard Oxman, The Regime of Warships under the United Nations Convention on
the Law of the Sea, Virginia Journal of International Law, 34 (1984): 809.
16Article 21 of the LOSC provides:
The coastal State may adopt laws and regulations, in conformity with the provisions
of this Convention and other rules of international law, relating to innocent passage
through the territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the
coastal State;
(f) the preservation of the environment of the coastal State and the prevention,
reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary
laws and regulations of the coastal State.
maritime security in the post 9/11 world
333
The issue of military activities, including surveillance, in the EEZ of another
State is one not directly dealt with in the LOSC.17 While the Convention makes
it plain that military exercises and weaponry testing in the territorial sea of a
coastal State would be contrary to the regime of innocent passage, there is no
equivalent restriction articulated with respect to other maritime zones. However,
neither is their any authorisation with respect to such exercises, with there being
no inclusion of military exercises or related activities in the list of freedoms. The
lack of direct reference to military activities is not fatal to the case for the conduct
of such exercises in the EEZ of another State. The rights listed in Article 87(1) of
they are by no means an exhaustive list, and are merely specifically enunciated
examples. This is explicit in the use of the phrase inter alia. Further, the freedoms of the high seas are described as being subject to the conditions set down
in the Convention and other rules of international law. The use of this language
makes it clear that the LOSC is not intended to be the only source of law in relation to the use of the high seas or EEZ.18
If the case for freedom to undertake military exercises in another States EEZ
can be made, it is clearly subject to some qualification. For this the crux of the
issue will essentially turn on the meaning of the phrase with due regard. This
qualification is applied to high seas freedoms generally in Article 87(2), and it
would seem logical that if one must have due regard to the rights of others while
navigating through the EEZ.19
One issue that could be relevant in assessing the legitimacy of freedom of navigation for warships in the contiguous zone relates to whether passage by such a
vessel might constitute a threat to international peace and security, and therefore
be illegitimate and capable of being intercepted. The LOSC provides limited assistance through Article 88 which provides that: The high seas shall be reserved for
peaceful purposes.
A wide reading of this provision would, in theory, see great limitation of the
uses of warships on the high seas, and the potential circumscription of all military activities. When read with the Preamble, which invokes the Conventions
role in the furtherance of peace and security in the world,20 suggesting that only
17 For example see George V. Galdoresi and Alan G. Kaufman, Military Activities in the
Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict, California
Western Journal of International Law, 32 (2002): 253.
18 See also the discussion below infra note 25.
19 See, Francesco Francioni, Peacetime Use of Force, Military Activities, and the New
Law of the Sea, Cornell International Law Journal, 18 (1985): 203, 215, see also Myron H.
Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary
(Dordrecht: Martinus Nijhoff, 1993), 553565.
20The Preamble states in part: Prompted by the desire to settle, in a spirit of mutual
understanding and co-operation, all issues relating to the law of the sea and aware of
the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world, and Believing that
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stuart kaye
eaceful uses of the sea are permissible. By extension this could be drawn into
p
the EEZ, as Article 58 adopts the high seas freedoms in the LOSC, and explicitly
includes Article 88 in this list.21 Similarly, the provisions with respect to marine
scientific research under Part XIII of the LOSC indicate that marine scientific
research can only be undertaken for peaceful purposes.22 A case could be made
that military activity from the high seas or another States EEZ were incompatible
with the LOSC, because such an activity would be inconsistent with the peaceful
purposes that use of high seas freedoms can be put. However, such an interpretation has not been favoured by many States or publicists.23 The San Remo Manual
on Armed Conflicts at Sea, which sought to update and consolidate the law of
armed conflict at sea, makes it clear that armed conflict at sea can take place on
the high seas and, in certain circumstances, in the EEZ of a neutral State.24 The
Manual provides that provided belligerents have due regard to the uses to which
another State may wish to put its EEZ and avoids damage to the coastal State.
A better view is that the LOSC encourages the peaceful uses of the sea, but is
lex generalis, which must be considered in the context of the lex specialis dealing
with the use of force at international law.25 The legitimate use of force under the
United Nations Charter, either in self-defence or pursuant to a Security Council
resolution should still be permissible in maritime areas, and not restricted by the
LOSC. Such an interpretation is supported explicitly in Article 301 of the LOSC.26
the codification and progressive development of the law of the sea achieved in this
Convention will contribute to the strengthening of peace, security, co-operation and
friendly relations among all nations in conformity with the principles of justice and equal
rights and will promote the economic and social advancement of all peoples of the
world, in accordance with the Purposes and Principles of the United Nations as set
forth in the Charter.
21 Galorisi and Kaufman, Military Activities in the Exclusive Economic Zone, 275278.
22Article 240, LOSC provides:
In the conduct of marine scientific research the following principles shall apply:
(a)marine scientific research shall be conducted exclusively for peaceful purposes.
23On this point see, David J. Attard, The Exclusive Economic Zone in International Law
(Oxford: Clarendon Press, 1987), 75; F. Orrego Vicuna, The Exclusive Economic Zone:
Regime and Nature under International Law (Cambridge: Cambridge University Press,
1989), 110113; Galdorisi and Kaufmann, Military Activities in the Exclusive Economic
Zone, 274276.
24Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed
Conflicts at Sea (San Remo: IIHL, 1995) paragraph 10, 8.
25Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) ICJ Reports,
paragraph 25.
26Article 301 of the LOSC provides:
In exercising their rights and performing their duties under this Convention, States
Parties shall refrain from any threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the
principles of international law embodied in the Charter of the United Nations.
maritime security in the post 9/11 world
335
Measures to assert a security jurisdiction typically centre on a requirement
of notification of voyages by foreign warships, but in some cases by any foreign
vessels, through the territorial sea or a wider zone based on jurisdiction added
to the contiguous zone or even beyond.27 An example of this is the requirement
asserted by China.28 Overall over 60 States have asserted extended rights, and the
nature of their claims is summarised in Table 14.1.
Table 14.1.State PracticeFreedom of Navigation and Security29
State
Albania
Algeria
Antigua and Barbuda
Bangladesh
Barbados
Brazil
Bulgaria
Cambodia
Cape Verde
China
Congo
Costa Rica
Type of Rights Asserted
Warships require prior special authorization
Authorization must be obtained for warships 15 days prior to
their passage; exception: force majeure
Warships require prior authorization
Warships require prior authorization; CZ 18 nautical miles
Security interests
Warships require prior authorization
Prohibition of the boarding, searching and of the exclusive
economic zone and enact and capturing of vessels in the
exclusive economic zone; military exercises and manoeuvres
may be conducted in the exclusive economic zone only with
the consent of Brazil
24 nautical miles (Control rights)
Control of all foreign activities on the continental shelf,
irrespective of their purpose; CZ 24 nautical miles Security
interests
Warships require prior authorization; Prohibition of
non-innocent use of the exclusive economic zone, including
weapons exercises
Requires prior notice for transports of waste in TS and EEZ;
warships require prior authorization; CZ 24 nautical miles
Security interests
All ships require prior authorization
Fishing vessels must announce their passage through the
exclusive economic zone beforehand
27As is evident in Table 14.1, some States assert security zones even beyond the 24 nautical mile contiguous zone. For example North Korea asserts a security jurisdiction to up
to 62 nautical miles from its coast, and Syria to a distance of 41 nautical miles. These
examples are unusual, with the great majority of States asserting such a jurisdiction
linking it to the contiguous zone.
28Article 13 of the Law of the Territorial Sea and the Contiguous Zone of 25 February 1992
provides that the Chinese exercise jurisdiction over security within the contiguous
zone, and seeks prior notification. This is rejected by the United States as inconsistent
with Article 33 of the LOSC, which has no reference to a security jurisdiction in respect
of the contiguous zone.
29The table was derived from S. B. Kaye, Freedom of Navigation in a Post 9/11 World:
Security and Creeping Jurisdiction in R. Barnes, D. Freestone & D. Ong (eds), The Law
of the Sea: Prospects and Problems (Oxford, Oxford University Press, 2006) 347.
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Table 14.1 (cont.)
State
Croatia
Denmark
Djibouti
Ecuador
Egypt
El Salvador
Estonia
Finland
Gambia
Greece
Grenada
Guinea
Guyana
Haiti
India
Indonesia
Iran
Type of Rights Asserted
Warships must announce their passage; the number of warships is limited
Warships and governmental ships are required to notify the
Danish authorities prior to their passage through territorial
waters if that involves passage through the Great Belt, the
Sams Belt or the re Sound; prior authorization is required for
more than 3 warships passing through at the same time
Prior notice required of any passage of nuclear-powered ships
and ships carrying nuclear or other radioactive material
Special area to be avoided
Warships have to announce their passage in advance; ships
carrying nuclear material or other hazardous substances
require prior authorization; CZ 24cm Security interests
Expressed concern at UNCLOS III in respect of military
activities in the EEZ
Warships and research vessels must announce their passage
48 hours in advance; authorization must be applied for nuclearpowered ships 30 days; prior to their passage
Warships and governmental ships have to announce their
passage in advance
Asserts the right to prohibit navigation in certain areas of its
continental shelf
Claims only a 6 nautical miles territorial sea but 10 nautical
miles of airspace for air traffic control purposes
Warships require prior authorization
Taking photographs and transporting toxic or hazardous
material are considered a criminal offence
Warships have to announce their passage in advance
Passage prohibited to ships carrying waste or materials with
an inherent health or environmental hazard; Prohibition of
the passage of all vessels carrying waste or materials that are
environmentally harmful or detrimental to health; furthermore
claims the right to exercise the control required in the
exclusive economic zone in order to ensure navigational
safety and prevent violations of financial, customs, health and
environmental protection regulations; CZ 24 nautical miles
Security interests
Warships have to announce their passage in advance; Prior
consent to military exercises and manoeuvres in the exclusive
economic zone and on the continental shelf; CZ 24 nautical
miles Security interests
Warships and all vessels other than merchant ships must
announce their passage in advance; 100 nautical miles Ships
are not allowed to stop, anchor or cruise without legitimate
cause.
Warships, submarines, nuclear-powered ships as well as
ships carrying nuclear or other hazardous materials require
authorization; Prohibition of military activities and practices
in the exclusive economic zone and on the continental shelf;
CZ 24 nautical miles Security interests
maritime security in the post 9/11 world
337
Table 14.1 (cont.)
State
Latvia
Libya
Type of Rights Asserted
Reserves the right to regulate the passage of warships
Innocent passage to be announced in advance and allowed
during daylight hours only; four exclusion zones
Lithuania
Warships require prior authorization if this is required by the
flag state
Malaysia
Prior consent to military exercises and manoeuvres in the
exclusive economic zone and on the continental shelf
Maldives
Warships require prior authorization; With regard to the EEZ,
acknowledge only the right of innocent passage; make entry of
fishing and research vessels into the exclusive economic zone
conditional upon prior consent
Malta
Asserts the claim for warships to obtain prior authorization
Mauritania
Reserves the right to restrict navigation and aviation in or
above the exclusive economic zone if this is necessary for
reasons of national security
Mauritius
Warships must announce their passage; Apparently makes
the passage of warships and submarines through the EEZ
conditional upon prior approval
Myanmar
Warships require prior authorization; Claims the right to
restrict the freedom of navigation and overflight in its exclusive
economic zone; CZ 24 cm Security interests
Namibia
Claims sovereign rights with regard to financial, customs,
immigration and health regulations in the exclusive economic
zone as well
Nicaragua
25 nautical miles Security interests15 days advance notification
for warships and military aircraft, seven days for civilian traffic
North Korea
62 nautical miles Military zone 50 nautical miles seaward of
the territorial sea. All ships and aircraft require prior approval.
Oman
Warships, nuclear-powered ships, submarines and ships
carrying hazardous loads require prior authorization
Pakistan
Warships require prior authorization; supertankers, nuclearpowered ships and ships carrying nuclear materials are
required to announce their passage in advance; Claims
authority to regulate transit through parts of the exclusive
economic zone and enact and enforce all regulations required
for controlling activities in the exclusive economic zone;
CZ 24 cm Security interests
Peru
Prior consent to military exercises and manoeuvres in the
exclusive economic zone and on the continental shelf
Philippines
Expressed concern at UNCLOS III in respect of military
activities in the EEZ
Poland
Reserves the right to regulate the passage of warships
Portugal
With regard to the exclusive economic zone, acknowledges
only the right of innocent passage
Romania
Reserves the right to regulate the passage of warships
So Tom and Prncipe Reserves the right to regulate the passage of warships
Saudi Arabia
Reserves the right to regulate the passage of nuclear-powered
ships; CZ 18 nautical miles Security interests and navigation
Senegal
Expressed concern at UNCLOS III in respect of military
activities in the EEZ
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stuart kaye
Table 14.1 (cont.)
State
Seychelles
Slovenia
Somalia
South Korea
Sri Lanka
St. Vincent and
Grenadines
Sudan
Syria
United Arab Emirates
Uruguay
Venezuela
Vietnam
Yemen
Yugoslavia
Type of Rights Asserted
Warships are required to announce their passage in advance
Reserves the right to regulate the passage of warships
Warships require prior authorization
Warships and government ships have to announce their passage three days in advance
Warships require prior authorization; CZ 24cm Security
interests
Warships require prior authorization
Warships require prior authorization; the right of innocent passage may be suspended for security reasons; CZ 18nm Security
interests
Warships require prior authorization; 41nm Security interests
Warships require prior authorization; nuclear-powered ships
and ships with nuclear or hazardous loads must announce their
passage in advance; CZ 24 nautical miles Security interests
Asserts the right to prohibit military exercises in the EEZ
15 nautical miles National and security interests
Warships require authorization to be applied for at least
30 days prior to passage; passage restricted to 3 warships
at a time; CZ 24 nautical miles Security interests Submarines
are required to navigate on the surface and to show their flag;
aircraft are not allowed to land on board ships or be launched
from them; on-board weapons have to be set in nonoperational mode prior to the entry into the zone.
Warships require prior authorization; nuclear-powered ships or
ships carrying nuclear materials must announce their passage
in advance; CZ 24 nautical miles Security interests
Warships must announce their passage 24 hours in advance
There is no justification within the text of the LOSC that permits a jurisdiction
based around security concerns to be included within the regime of the contiguous zone. The contiguous zone is dealt with in a single article, and does not refer
to security directly, or even by implication.30
Since 2007, there has been no reduction in the assertion of security jurisdictions by some coastal States, however there has also been no dramatic increase in
30Article 33 of the LOSC provides:
In a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its
territory or territorial sea.
maritime security in the post 9/11 world
339
such claims. Since such claims are rarely enforced by most States in any meaningful way, the fact they remain enshrined in coastal State law is a relatively passive
way for such States to continue to maintain their positions. What is the source of
some concern is whether the assertion of such rights by China, supported by the
kind of pressure applied to the USNS Impeccable in 2009,31 might see a rise in
tension among the regions littoral States. Given tensions have risen in the context of a number of sovereignty disputes, the assertion of a security jurisdiction
by China, will do little to lower the diplomatic temperature.
Proliferation Security Initiative
The PSI was announced in Krakow, Poland on 31 May 2003 by President George W.
Bush.32 It initially was a cooperative venture between 11 States,33 but has gradually widened its support base to include a number of additional States, including
Russia.34 In addition to this direct support, the PSI received tacit approval from
States attending an international conference directed at international security
arrangements. This was demonstrated at the recent first anniversary meeting in
Krakow on 31 May1 June 2004, which was attended by over 60 States.35
The thrust of the PSI is to prevent the proliferation of WMD by sea, land and air,
although within the scope of this chapter, only the marine aspect of the Initiative
will be considered.36 The PSI is not a treaty, but rather a statement of intention
31 See, Raul Pedrozo, Close Encounters at Sea: The USNS Impeccable Incident Naval
War College Review, 62 (2009): 101.
32President Bush stated:
When weapons of mass destruction or their components are in transit, we must
have the means and the authority to seize them. So today I announce a new effort to
fight proliferation called the Proliferation Security Initiative. The United States and
a number of our close allies, including Poland, have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons
or missile technologies. Over time, we will extend this partnership as broadly as possible to keep the worlds most destructive weapons away from our shores and out of
the hands of our common enemies.
Reprinted at, http://www.whitepages.gov/news/releases/2003/05/20030531-3.html.
33Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the
United Kingdom and the United States.
34Canada, Denmark, Norway, Russia, Singapore and Turkey.
35See paragraph 2, Chairmans Statement, First Anniversary Proliferation Security
Initiative Meeting, Krakow, 31 May1 June 2004, http://www.dfat.gov.au/security/
statements/1st_psi_chairmans_statement_040601.html.
36See generally, Michael Byers, Policing the High Seas: The Proliferation Security Initiative, American Journal of International Law, 98 (2004): 526; Ian P. Barry, The Right of
Visit, Search and Seizure of Foreign Flagged Vessels on the High Seas Pursuant to Customary International Law: A Defense of the Proliferation Security Initiative, Hofstra
Law Review, 33 (2004): 299.
340
stuart kaye
on the part of participating States, and of itself, it does not create formally binding obligations at international law. Participating States have agreed to abide
by a set of interdiction principles, set out in a formal Statement of Interdiction
Principles. The interdiction principles indicate that States will undertake effective measures to combat the proliferation of WMD, delivery systems or related
materials,37 cooperate on information exchange and coordination of activities to
combat such proliferation,38 and review domestic and, if necessary international
law to strengthen these efforts.39
In terms of specific circumstances when interdiction will take place, the PSI
provides a number of instances, and these are worth extracting:
Take specific actions in support of interdiction efforts regarding cargoes of WMD,
their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks, to include:
...d.To take appropriate actions to (1) stop and/or search in their internal waters,
territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected of carrying such cargoes to or from states or non-state actors
of proliferation concern and to seize such cargoes that are identified; and
(2) to enforce conditions on vessels entering or leaving their ports, internal
waters or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and
seizure of such cargoes prior to entry.40
37Paragraph 1 of the Statement of Interdiction Principles provides:
Undertake effective measures, either alone or in concert with other states, for
interdicting the transfer or transport of WMD, their delivery systems, and related
materials to and from states and non-state actors of proliferation concern. States
or non-state actors of proliferation concern generally refers to those countries or
entities that the PSI participants involved establish should be subject to interdiction
activities because they are engaged in proliferation through:
(a) efforts to develop or acquire chemical, biological, or nuclear weapons and
associated delivery systems; or
(b) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials.
Reprinted at, http://www.dfat.gov.au/globalissues/psi/psi_statement.html.
38Paragraph 2 of the Statement of Interdiction Principles provides:
Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified
information provided by other states as part of this initiative, dedicate appropriate
resources and efforts to interdiction operations and capabilities, and maximize coordination among participants in interdiction efforts.
Reprinted at, http://www.dfat.gov.au/globalissues/psi/psi_statement.html.
39Paragraph 3 of the Statement of Interdiction Principles provides:
Review and work to strengthen their relevant national legal authorities where necessary
to accomplish these objectives, and work to strengthen when necessary relevant international laws and frameworks in appropriate ways to support these commitments.
Reprinted at, http://www.dfat.gov.au/globalissues/psi/psi_statement.html.
40Reprinted at, http://www.dfat.gov.au/globalissues/psi/psi_statement.html.
maritime security in the post 9/11 world
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These categories have been effectively widened in 2004, with bilateral agreements
between the United States on the one hand, and initially Liberia and Panama on
the other, and subsequently also with Belize, Cyprus the Marshall Islands and
Croatia, with a view to permitting US vessels to stop and search suspect vessels
flagged in these countries.41 Liberia and Panama will not function as PSI States,
but, in certain circumstances, they have agreed to allow the United States to
inspect their flag vessels.42
The PSI has also been the subject of consideration by the United Nations
Security Council. On 28 April 2004, the Security Council unanimously adopted
Resolution 1540 on the prevention of the proliferation of weapons of mass
destruction to non-State actors. The Resolution provided that States could take
all measures consistent with international law to prevent the proliferation of
weapons of mass destruction, and that States were under an obligation to ensure
that such weapons did not fall into the control of non-State actors. Significantly,
there is no reference to interdiction of vessels,43 so the Resolution falls short
of the range of measures contemplated within the PSI, however it is clear the
41Agreement between the Government of the United States of America and the Government
of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, their Delivery Systems, and Related Materials by Sea, done at
Washington DC on 11 February 2004, entered into force 9 December 2004: reprinted at,
http://www.state.gov/t/np/trty/32403.htm. Amendment to the Supplementary Arrangement between the Government of the United States of America and the Government of the
Republic of Panama to the Arrangement between the Government of the United States
and the Government of Panama for Support and Assistance from the United States Coast
Guard for the National Maritime Service of the Ministry of Government and Justice, done
at Washington DC on 12 May 2004, entered into force 1 December 2004: reprinted
at http://www.state.gov/t/np/trty/32858.htm; Agreement Between the Government of
the United States of America and the Government of Belize Concerning Cooperation to
Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and
Related Materials By Sea, done at Washington DC on 4 August 2005: reprinted at, http://
www.state.gov/t/np/trty/50809.htm; Agreement Between the Government of the United
States of America and the Government of the Republic of Cyprus Concerning Cooperation
to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and
Related Materials By Sea, done at Washington DC on 25 July 2005: reprinted at, http://
www.state.gov/t/np/trty/50274.htm; Agreement between the Government of the United
States of America and the Government of the Republic of Croatia concerning cooperation
to suppress the proliferation of weapons of mass destruction, their delivery systems, and
related materials, done at Washington DC on 1 June 2005: reprinted at, http://www
.state.gov/t/np/trty/47086.htm; Agreement Between the Government of the United States
of America and the Government of the Republic of the Marshall Islands Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, done at Honolulu on 13 August 2004, entered into
force on 24 November 2004: reprinted at http://www.state.gov/t/np/trty/35237.html.
42Liberia will also have the right to inspect United States flag vessels, but it is unlikely
this right will be exercised.
43This omission was at the request of China.
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Resolution would render the shipping of weapons in the circumstances contemplated to be addressed by the PSI unlawful.
Upon their face, these controls do not provide a basis for a coastal State to
assert jurisdiction over a passing vessel in its territorial sea for the purposes of
the PSI. The matters Article 21 of LOSC permits regulation of are clearly restricted
to matters pertaining to the safe navigation of the ship, the protection of the surrounding marine environment, and the maintenance of customs and immigration
controls of the coastal State. Unless there was a clear intention to illegally import
WMD into the coastal State, which could be accomplished when the vessel came
alongside in any case, there is no authority that can be drawn from Article 21 to
assist coastal States in the implementation of the PSI.
Other articles in the LOSC may be of more utility. Article 19 of LOSC requires
that a ships passage cannot be prejudicial to the peace, good order or security of
the coastal State, and that a range of activities that fall outside this requirement
be explicitly listed, including any other activity not having a direct bearing on
passage.44 Clearly, the delivery of WMD to terrorists may well be highly prejudicial to the peace, good order and security of a coastal State, and an argument
could be made that such a passage is therefore not innocent, and the restrictions
on coastal State authority over the passing vessel are removed.
The ability of a coastal State to close territorial waters for essential security
purposes on a temporary basis will not assist the PSI. Such closures are to be nondiscriminatory in their application, and clearly this is not possible with the PSI.
The PSIs objective is to interdict suspect vessels, not to institute what resembles
a blockade and compel the inspection of every passing ship. Further, Article 25(3)
is intended to clear areas of the sea temporarily, not to authorise an inspection
regime.45
Coastal State criminal jurisdiction, which would usually encompass preparations to undertake terrorist activities, can also be awakened under Article 27 of
the LOSC for vessels passing through the territorial sea. This can occur in four
circumstances:
44Article 19(2) of the LOSC also provides, inter alia:
Passage of a foreign ship shall be considered to be prejudicial to the peace, good
order or security of the coastal State if in the territorial sea it engages in any of the
following activities:
(a)any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation
of the principles of international law embodied in the Charter of the United
Nations;...
45See generally Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary, Volume 2, 232233.
maritime security in the post 9/11 world
343
(a) if the consequences of the crime extend to the coastal State;
(b) if the crime is of a kind to disturb the peace of the country or the good order
of the territorial sea;
(c) if the assistance of the local authorities has been requested by the master of
the ship or by a diplomatic agent or consular officer of the flag State; or
(d) if such measures are necessary for the suppression of illicit traffic in narcotic
drugs or psychotropic substances.46
Of the categories above, only (a) and (b) will be of direct relevance to the PSI,
because if the master or flag State seek assistance as in (c), then there is no issue
of legality. For (a) and (b), it may be that conspiracy to commit a terrorist act and
preparatory steps towards such an act are criminal matters, the consequences of
which might extend to the coastal State, or disturb its peace or good order. This
would then potentially invoke coastal State jurisdiction. However, the materials
may be intended for a third State. This nullifies Article 27 of LOSC, which is specific to the coastal State.
For transit passage and archipelagic sea lanes passage, the same concerns
apply, save that such passage cannot be interrupted for any reason, not even the
essential security concerns of the coastal State. This would make the stopping
of a vessel in an international strait or archipelagic sea lane of greater significance. Further, the categories of coastal State law applicable to such vessels, as
described in Article 42 of LOSC, are more limited than those for innocent passage.
However, Article 39 of LOSC does require vessels to refrain from any violation of
the principles of the United Nations Charter, as in Article 19, so the above discussion there would similarly be applicable.47
The PSI also includes interdiction within the contiguous zone of a participating
coastal State. This raises additional issues with respect of freedom of navigation,
because whilst vessels in the territorial sea are obliged to observe the regime of
innocent passage or be subject to the wider law of the coastal State, the contiguous zone is unfettered by such concerns. Were WMD destined to be imported
into the coastal State for use in a terrorist attack, it would seem to fall clearly
within the rubric of prevention of infringement of customs and, in certain circumstances, possibly immigration48 under Article 33 of LOSC. The coastal State
could therefore argue a right to stop, search, and seize was necessary to uphold
46Article 27(1), LOSC.
47Articles 39 and 42 of LOSC apply to transit passage. For archipelagic sea lanes passage, Article 54 of LOSC provides: Articles 39, 40, 42 and 44 apply mutatis mutandis to
archipelagic sea lanes passage.
48Immigration laws might pertain to a situation where terrorists accompanied the WMD
aboard the ship.
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stuart kaye
its customs laws, and prevent the delivery of highly dangerous and undesirable
materials to its territory.
A more difficult situation arises were the WMD are destined for another State.
It would not be open to a coastal State to assert its customs laws were to be
infringed by a passing vessel carrying WMD, as the vessels master might never
have had any intention to enter the territorial sea of the coastal State. It would
seem an unreasonable adaptation of Article 33 to have it include not mere prevention of infringement of customs of the coastal State, but of other States as
well. This is particularly the case given the freedom of navigation guaranteed for
vessels in the contiguous zone, as a foreign flag vessel will have breached no law
of the coastal State, and should be entitled to transit through the zone without
being interfered with.
Since 2007, the catastrophe which the PSI was designed to prevent has not
occurred, although whether this success can be credited to the PSI is open to
debate. The United States has added to the number of ship-boarding agreements
it has concluded with flag States, providing additional legal support to the PSIs
architecture.49 PSI exercises, which were commonly held on multiple occasions
through the year have reduced in number. Whether such a reduction points
to a degree of comfort in undertaking ship-boardings by States in cooperation, or
a decline in the relevance remains to be seen, although the former seems more
likely than the latter.
Environmental Security
A number of States have also sought to assert the right to deny vessels carrying ultra-hazardous cargoes, most notably nuclear materials for reprocessing
or disposal, passage through not only their territorial sea, but even their EEZ.
These States have often been motivated by particular incidents, where vessels have been likely to pass through their waters on planned voyages between
other States. Such voyages between Europe and Japan have elicited responses
from States in Africa, South America and the South Pacific.50
The LOSC provides little direct assistance for States who wish to assert the right
to deny passage to vessels carrying ultra-hazardous cargoes. There is no indication
in the Convention of any restriction that can be placed on navigation in the EEZ
based upon the nature of the cargo. Indeed, the Convention appears to indicate
49See, http://www.state.gov/t/isn/c27733.htm for a current list of shipboarding agreements concluded by the United States.
50For example see Jon M. Van Dyke, Sea Shipment of Japanese Plutonium under International Law, Ocean Development and International Law, 24 (1993): 399; Eric J. Molenaar,
Coastal Jurisdiction over Vessel Source Pollution (The Hague: Kluwer Law International,
1998).
maritime security in the post 9/11 world
345
the reverse situation is the case; that is, that ships carrying hazardous cargoes can
navigate freely. This can be seen in respect of the exercise of innocent passage for
ships carrying nuclear or other hazardous materials in Article 23 of LOSC:
Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage
through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.
Rather than indicate duties owed to the coastal State, and the option of that State
to deny passage, Article 23 indicates that special precautionary measures drawn
from other instruments ought to be complied with. No similar provision exists
for the EEZ.
The rationalisation for States seeking to exclude is based upon their jurisdiction in the EEZ over environmental matters. It is argued by these States that the
ultra-hazardous nature of the cargo poses such a threat to the environment that
they have a right to prevent the possibility of irreparable harm occurring. At the
very least, they have a right to be notified of a voyage carrying such cargo, if only
to be prepared to respond appropriately to an accident or other disaster, should
one occur.
Examples of State practice from States that take the view that freedom of navigation can be circumscribed because of a ships cargo cover a range of situations.
As a result of the break up of the oil tanker Prestige in November 2002, Spain and
France asserted that they would undertake inspections of single hulled oil tankers
in excess of fifteen year old passing through their EEZs, and if the vessels were
found to be unseaworthy, they would not be permitted to remain in the EEZ.51
Further examples can be drawn from international reactions to shipments of
radioactive materials around the world, particularly since the 1990s. The voyages
of the Pacific Pintail, Pacific Teal and Pacific Swan and the Atatsuki Maru carrying highly radioactive material attracted protests from a significant number of
States, and lead States such as Argentina, Chile, Antigua and Barbuda, Colombia,
Dominican Republic, New Zealand, South Africa and Mauritius to all purport to
exclude vessels carrying radioactive ultra-hazardous cargo from their EEZs. Voyages were also condemned by Caricom, representing the Caribbean States, and
the South Pacific States.52 States who have asserted that they not permit nuclear
cargo vessels in the territorial sea or EEZ are noted in Table 14.2.
51 See, Jon M. Van Dyke, Military Ships and Planes operating in the Exclusive Economic
Zone of Another Country, Marine Policy, 28 (2004): 29, 37.
52See, generally Marco Roscini, The Navigational Rights of Nuclear Ships, Leiden Journal
of International Law, 15 (2005): 251; Jon M. Van Dyke, Balancing Navigational Freedom
with Environmental and Security Concerns, Colorado Journal of International Environmental Law and Policy, 15 (2003): 19; Jon M. Van Dyke, The Legal Regime Governing
Sea Transport of Ultrahazardous Radioactive Materials, Ocean Development and International Law, 33 (2002): 77.
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stuart kaye
Table 14.2.States That Have Objected to Nuclear Ships Passing through Their Territorial
Sea or EEZs53
Antigua and Barbuda
Argentina
Brazil
Chile
Colombia
Dominican Republic
Egypt
Fiji
Guinea
Haiti
Indonesia
Iran
Kiribati
Malaysia
Malta
Nauru
New Zealand
Oman
Papua New Guinea
Peru
Philippines
Saudi Arabia
Singapore
South Africa
Venezuela
Yemen
Again, since 2007, little has changed with respect to assertions of a right to
exclude ships carrying ultra-hazardous cargos from a coastal States EEZ. There
has been no significant variation in State behaviour, nor has their been an accident or incident involving vessels carrying ultra-hazardous cargo that might act
as a catalyst for change.
Conclusion
A sizeable number of States seek to impose restrictions in respect of security
in their adjacent waters. These States represent approximately one third of the
international community, and a between one third and one half of States possessing a sea coast. While such a proportion would not reach the level of support
indicated by the International Court of Justice in the North Sea Continental Shelf
Cases54 to indicate the presence of customary international law, it still represents
a sizeable body that do not accept the LOSC does not restrict freedom navigation
for security, beyond the limited exception in Article 25(3).
It is interesting to note that many States that strongly support freedom of
navigation are also supporters of the PSI. Whilst the PSI does not purport to be
contrary to international law and does not create a security zone for warship
reporting and authorisation, it does encourage participating States to take action
against suspect vessels in their territorial sea and contiguous zone. Such measures
53The table was derived from S. B. Kaye, Freedom of Navigation in a Post 9/11 World:
Security and Creeping Jurisdiction in R. Barnes, D. Freestone & D. Ong (eds), The Law
of the Sea: Prospects and Problems (Oxford, Oxford University Press, 2006) 347.
54North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of
Germany/ Netherlands) Judgment, (1969) I.C.J. Reports 3.
maritime security in the post 9/11 world
347
are designed to prevent the transport of WMD and related material, essentially
for the security of the coastal State and its fellow PSI participants. The concern
arising out of this is that the PSI States do not figure in the above table, and their
support for the PSI may be seen by many as a limited increase to the number of
States that place security based restrictions on freedom of navigation through
their waters. Such an increase would take the level of States interested in placing
security restrictions on navigation to over half of States possessing a sea coast.
However, in its present form, with the lack of a binding treaty, and the reiteration
that it is consistent with international law, the PSI does not erode the position of
the maritime powers with respect to security notification. As it is not based on
a treaty, the PSI could not be said to be strictly within the traditional corpus
of international law, and what little can be traced to traditional source, such as
Security Council Resolution 1540, is stated to be carried out in accordance with
international law. Unless and until an actual interception, without some other
ground based on flag or port State control, takes place and the maritime powers
assert the legality of their actions, those States seeking security notification will
remain without concrete action upon which to base their objections.
Given the small number of PSI interceptions to date, the erosion of navigational freedoms may be some time coming, and more than likely will not come at
all. The PSI States are also working hard to ensure that alternative measures are
available that do not do such potential violence to traditional freedom of navigation. The moves towards enhancing the SUA Convention55 in the latter half of
2005 and the conclusion of bilateral interception agreements between the United
States and States representing almost 60 percent of the worlds shipping tonnage
are all other avenues to achieve the PSIs objectives,56 without undermining the
fabric of international law that supports freedom of navigation.
Nevertheless, the PSI coupled with the significant number of States asserting a
security jurisdiction, and the body of States who have objected to the passage of
ships carrying ultra-hazardous cargoes, all place pressure on freedom of navigation. States asserting jurisdictions of this nature are each asserting that in certain
circumstances the freedom of navigation of vessels ought to be circumscribed for
reasons related to the interest of protecting their territory or waters from harm. If
the number of States asserting a right to deal with security measures continues to
grow, be it in the context of military, environmental or security from the transfer
55See, Convention for the Suppression of Unlawful Acts against the Safety of Marine Navigation, opened for signature 10 March 1988, entered into force 1 March 1992, 1678 UNTS
221; Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms
Located on the Continental Shelf, opened for signature 10 March 1988, entered into force
1 March 1992, 1678 UNTS 304; A conference to amend the SUA Convention and its
Protocol was adopted by a Resolution of the IMO Assembly in Resolution A.924(22).
See, http://www.imo.org/home.asp.
56See, note 39.
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stuart kaye
of WMD to non-State actors, then navigational freedoms may begin to erode, and
a new creeping of jurisdiction may take root.
In the years since 2007, there has been little activity that could be seen to
further undermine freedom of navigation. The PSI, which potentially was an
unknown factor, has not proven to be agent for change after all. To date, PSI
seems to have less prominence than in the days after 2003, and has become an
unobtrusive part of the maritime security architecture as opposed to a new element of the international legal landscape.
Chapter fifteen
Jurisdiction over Pirates and Maritime Terrorists
Robert Beckman*
Introduction
This chapter will first outline the principles of jurisdiction governing piracy and
crimes at sea which are set out in the United Nations Convention on the Law of
the Sea, 1982 (LOSC)1 and in general international law. It will then discuss three
challenges posed to the regime governing piracy and crimes against ships. First,
it will discuss the challenges posed by the hijacking of an Italian cruise ship, the
MS Achille Lauro, in 1985 and the response of the international community in
adopting the Convention for the Suppression of Unlawful Acts Against the Safety
of Maritime Navigation, 1988 (1988 SUA Convention).2 Second, it will explain the
challenges posed by Somali piracy to the piracy regime in LOSC. Third, it will
examine the challenges posed by piracy in Southeast Asia to the rules and principles on piracy and crimes at sea. It will then examine whether the 1988 SUA
Convention and other UN terrorism conventions could be effective tools in combating piracy in Somalia and Southeast Asia.
The chapter will then focus on the problems posed by the threat of maritime
terrorism to the international legal regime governing jurisdiction over crimes at
sea. It will examine two developmentsfirst, the adoption by the international
community of the Protocol to the 1988 SUA Convention, 2005 (2005 SUA Protocol)3
*Director, Centre for International Law (CIL) and Associate Professor, Faculty of Law,
National University of Singapore, Singapore.
1 United Nations Convention on the Law of the Sea, opened for signature December 10,
1982, entered into force November 16, 1994, 1833 UNTS 3 (LOSC).
2Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,
opened for signature March 10, 1988, entered into force March 1, 1992, 1678 UNTS 221
(1988 SUA Convention).
32005 Protocol to the 1988 Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation, opened for signature October 14, 2005, entered into force
July 28, 2010, IMO Doc LEG/CONF. 15/21 (2005 SUA Protocol).
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to enhance cooperation to deal with threats to the safety of maritime navigation
from acts of maritime terrorism and second, the development of the Proliferation
Security Initiative by the United States to enhance cooperation to combat the
threat of the proliferation of weapons of mass destruction by sea.
The chapter will conclude by examining whether the international legal regime
on jurisdiction over crimes at sea has been adapted or amended by the measures
taken to meet the above challenges.
LOSC and Principles of Jurisdiction Governing Crimes at Sea
Jurisdiction refers to the power of a State under international law to govern persons and property by its municipal law. It includes both the power to prescribe
rules (prescriptive jurisdiction) and the power to enforce them through executive
and judicial action (enforcement jurisdiction).4
The principles governing jurisdiction over maritime activities, as set out in
customary international law and LOSC, depend on whether the act took place
within a maritime zone under the territorial sovereignty of a coastal State, or in
a maritime zone outside the territorial sovereignty of a coastal State.
In maritime zones under the territorial sovereignty of a coastal State, that is, in
internal waters, archipelagic waters and territorial seas, coastal States have both
prescriptive and enforcement jurisdiction.5 Coastal States have prescriptive jurisdiction based on the territorial principle. Other States may also have prescriptive
jurisdiction based on the nationality principle (if the offenders are their nationals), the flag State principle (if the criminal acts take place on or against a ship
flying their flag) or the passive personality principle (if victims of the criminal
acts are their nationals). With respect to enforcement jurisdiction, the coastal
States jurisdiction is exclusive. No other State may exercise enforcement jurisdiction in maritime zones under the territorial sovereignty of a coastal State without
its express consent.6
In maritime zones outside the territorial sovereignty of a coastal State,
namely on the high seas, the general principle is that ships are subject to the
exclusive jurisdiction of the State whose flag they fly.7 Other States may have
prescriptive jurisdiction over criminal acts by persons aboard ships on the high
seas based on the nationality or passive personality principles. However, the general principle with respect to enforcement jurisdiction is that ships on the high
4David Harris, Cases and Materials on International Law, 7th Edition (London: Sweet and
Maxwell, 2010), 227.
5See, LOSC, Articles 2 and 49.
6SS Lotus (France v. Turkey) 1927 PCIJ (ser A) No. 10, 1819.
7LOSC, Article 92(1).
jurisdiction over pirates and maritime terrorists
351
seas may not be boarded without the express consent of the flag State or the
master of the ship.
There are limited exceptions to the principle of exclusive enforcement jurisdiction of the flag State on the high seas. First, warships or ships on government service of all States8 may board and arrest pirate ships.9 Second, a warship
may board another ship on the high seas if there are reasonable grounds for
suspecting that the ship is engaged in piracy, the slave trade, or unauthorized
broadcasting, if the ship is without nationality or the ship is the same flag as
the warship. This is known as the right of visit under LOSC.10 Third, LOSC also
recognises that additional reasons for exercising the right to board foreign flagged
ships may be established by treaty.11
Jurisdiction in the exclusive economic zone (EEZ) is often a source of confusion because it is neither subject to the sovereignty of the coastal State nor part of
the high seas. It is a sui generis regime governed by the provisions of LOSC. Under
LOSC coastal States have the power to enforce their fisheries laws and regulations
in their EEZ, including the power to board, inspect and arrest ships violating their
fisheries laws and regulations.12 Under LOSC coastal States also have limited jurisdiction to enforce their laws governing marine scientific research and pollution of
the marine environment.13 However, for all other matters, the general principles
on jurisdiction over ships on the high seas apply in the EEZ. These include the
provision on the immunity of warships, the provision stipulating that ships are
subject to the exclusive jurisdiction of the flag State, the provision on the right of
visit, and the provisions on piracy. Therefore, if an act of piracy or an act of maritime terrorism takes place in the EEZ of a coastal State, the coastal State has no
jurisdiction based on the territorial principle. The high seas rules on jurisdiction
apply. The suspect ship cannot be boarded without the consent of the master or
flag State, unless there are reasonable grounds for suspecting that an act of piracy
has occurred. In such case, a warship of any State may board the pirate ship and
arrest the pirates.
8LOSC,
Article 107.
LOSC, Article 105 which allows all States to seize a pirate ship or a ship taken by
piracy and under the control of pirates (piracy is defined in LOSC, Article 101), and
arrest the persons and seize the property on board. Article 105 applies in the exclusive
economic zone (EEZ) by virtue of LOSC, Article 58(2).
10See LOSC, Article 110 on the right of visit. This would apply in the EEZ by virtue of
LOSC, Article 58(2).
11 LOSC, Article 110 provides that [E]xcept where acts of interference derive from powers
conferred by treaty.
12See LOSC, Article 73.
13LOSC, Article 56(b) gives the coastal State jurisdiction over marine scientific research
and the protection and preservation of the marine environment in the EEZ.
9See,
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The Achille Lauro Hijacking and 1988 SUA Convention
The first major challenge to the LOSC piracy regime arose on 7 October 1985,
when four members of the Palestine Liberation Front hijacked the MS Achille
Lauro, an Italian cruise ship, in the Mediterranean Sea, off the coast of Egypt.14
The four hijackers had boarded the ship as passengers. They took control of the
ship, held the other passengers and crew hostage, and demanded the release of
50 Palestinians then in Israeli prisons.15
This incident raised two issues on the definition of piracy in Article 101 of
LOSC. The first issue is whether an attack on a ship for political purposes (to
free prisoners) is outside the definition of piracy because the definition provides
that the attack must be for private ends. Although some commentators have
suggested that private ends should be interpreted to mean for personal gain,
the legislative history of the provision does not support this position. The commentary to Article 39 of the 1956 International Law Commission Report (1956
ILC Report) states that the intention to rob (animus furandi) is not required, and
that Acts of piracy may be prompted by feelings of hatred or revenge, and not
merely by the desire for gain.16 In todays world, the better interpretation would
be that private ends should be contrasted with public ends. Therefore, all acts
not committed under the specific authorization of a State or of a recognised belligerent organisation would be acts committed for private ends.
The second issue raised by the hijacking of the Achille Lauro is whether the
hijacking of a ship by the passengers or crew of that ship is piracy under LOSC.
The wording of Article 101 suggests that the attack must come from a second
ship. Article 101 provides that the acts must be committed by the crew or the passengers of a private ship or a private aircraft, and directed against another ship,
or against persons or property on board such ship or aircraft. The commentary
to Article 39(1)(a) of the 1956 ILC Report confirms the two-ship requirement.17 It
specifically states that Acts committed on board a ship by the crew or passengers
14Helmut Tuerk, Combating Terrorism at SeaThe Suppression of Unlawful Acts
Against the Safety of Maritime Navigation, University of Miami International and Comparative Law Review, 15 (2008): 337338; Richard Pallardy, Achille Lauro Hijacking,
Encyclopaedia Britannica Online: http://www.britannica.com/EBchecked/topic/3574/
Achille-Lauro-hijacking.
15British Broadcasting Corporation (BBC), On this day: 7 October 1985: Gunmen hijack
Italian cruise liner, http://news.bbc.co.uk/onthisday/hi/dates/stories/october/7/
newsid_2518000/2518697.stm.
161956 International Law Commission Report: 282, Article 39, Commentary, para. (1) (i);
Report of the International Law Commission to the General Assembly covering the
work of its eighth session, April 23July 4, 1956 (UN Doc. A/3159) in Yearbook of
the International Law Commission 1956, Volume 2 (New York: United Nations, 1957) 253
(UN Doc. A/CN.4/SER.A. A/1956/Add.1).
17Ibid., 282.
jurisdiction over pirates and maritime terrorists
353
and directed against the ship itself, or against persons or property on the ship,
cannot be regarded as acts of piracy.18 Therefore, it seems clear that if the passengers or crew of a private ship take control of that ship by illegal acts of violence, this does not constitute piracy.
As a result of the issues raised in the Achille Lauro incident, a decision was
taken by the international community to draft a new terrorist convention to
deal with the hijacking of ships. Three years later, the international community
adopted the 1988 SUA Convention.19
The 1988 SUA Convention is administered by the International Maritime Organization (IMO). It follows the scheme of the UN terrorism conventions which
had been established in the Convention for the Suppression of Unlawful Seizure
of Aircraft, 1970 (1970 Hague Convention).20 First, States Parties to the 1988 SUA
Convention are obligated to make the offences defined in the convention a crime
under their national laws.21 The offences in the 1988 SUA Convention include taking control of a ship by force and the commission of acts of violence against
persons aboard the ship which endanger the safety of maritime navigation. The
commission of these acts is an offence, whatever the particular motive or purpose. Second, States Parties are required to establish jurisdiction over the offence
when they have a link to the offence based on the territorial, nationality and
flag State principles.22 Third, States Parties are obligated to establish jurisdiction
over the offence when alleged offenders are present in their territory and the
State chooses not to extradite them.23 Fourth, if alleged offenders are present
in their territory, States Parties are obligated to take them into custody and to
either extradite them or turn the case over to its authorities for the purpose of
prosecution.24 Fifth, the 1988 SUA Convention, like the other UN terrorist conventions, also has provisions relating to extradition25 and mutual legal assistance.26
The 1988 SUA Convention in effect makes the hijacking of a ship a universal
crime among States Parties, even if the hijacking takes place in a maritime zone
18 Ibid., paragraph (1) (vi).
19 Tuerk, Combating Terrorism at Sea 344346.
20Hague Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature December 16, 1970, entered into force October 14, 1971, 860 UNTS 105; Tuerk,
Combating Terrorism at Sea, 343344.
21 1988 SUA Convention, Article 6.
22Robert Beckman and Tara Davenport, Enhancing Regional Cooperation on Piracy and
Maritime Crimes, paper presented at the International Conference on Cooperation in
Dealing with Non-Traditional Security Issues in the South China Sea: Seeking More Effective Means, National Institute for the South China Sea Studies (NISCS), May 2122, 2010
(Haikou, China): 13.
231988 SUA Convention, Article 6(4).
241988 SUA Convention, Article 10(1).
251988 SUA Convention, Articles 6(4), 10(1) and 11(5).
261988 SUA Convention, Article 12.
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subject to the sovereignty of the coastal State, such as the territorial sea or archipelagic waters.27 Even though the 1988 SUA Convention is referred to as a terrorism convention, the purpose or motive of the hijacking is not relevant for an
offence to have been committed under the Convention. The Convention applies
equally to hijackings for private gain and hijackings for political purposes. The
Convention does not give States Parties any right to seize ships and arrest persons for SUA offences.28 Rather, the enforcement of the 1988 SUA Convention is
based on the presence of the offender in the territory of a State Party.29 The right
of States Parties to board ships and arrest persons suspected of committing an
offence under the 1988 SUA Convention continues to be governed by LOSC30 and
general international law. As explained, States Parties cannot board a ship in the
territorial sea of another State without the consent of the coastal State.31 Also,
warships cannot board a ship flying a foreign flag on the high seas or in an EEZ
without the consent of the flag State, unless the ship is a pirate ship as defined
in LOSC.32
The Challenges Posed by Somali Piracy
The acts of piracy off the coast of Somalia and in the Gulf of Aden have created
an extremely serious challenge for the international community. Somali piracy is
unique because there is no government in Somalia that is able to exercise effective control in either the territorial sea or EEZ of Somalia, and because the pirates
have significant support from the local coastal communities in some parts of the
country. Therefore, the UN Security Council had to intervene and, for the first
time, declared that the attacks on ships in the waters off Somalia were a threat to
international peace and security. This enabled the Security Council to exercise its
enforcement powers under Chapter VII of the UN Charter and to make decisions
which were binding on all member States.33
As the international community began to cooperate to address the threat to
shipping presented by Somali piracy, several weakness and limitations in the
LOSC piracy regime came to light.
27Beckman and Davenport, Enhancing Regional Cooperation, 12.
28Ibid., 16.
29Ibid.
30LOSC, Articles 105, 110.
31 Beckman and Davenport, Enhancing Regional Cooperation, 26.
32Ibid.
33United Nations Security Council Resolution 1816 (2008), available at http://documentsdds-ny.un.org/doc/UNDOC/GEN/N08/361/77/pdf/N0836177.pdf?OpenElement; http://
www.un.org/News/Press/docs/2008/sc9344.doc.htm [also accessible via the UN Official Documents System].
jurisdiction over pirates and maritime terrorists
355
First, since the LOSC piracy regime applies only on the high seas and in the
EEZ, the warships cooperating to combat Somali piracy had no right to seize
ships in the territorial sea of Somalia. This legal issue was resolved when the UN
Security Council adopted a resolution creating an exception to the LOSC piracy
rules by providing that the rules applied in the territorial sea of Somalia, thereby
authorizing foreign warships to seize pirate ships in the territorial sea as well as
in the EEZ and on the high seas.34
Second, Article 101 of LOSC provides a definition of piracy, but it imposes no
obligation on States Parties to enact national legislation making piracy, as defined
in LOSC, a criminal offence with appropriate penalties.35 It also imposes no obligation on States to ensure that their national legislation gives their judiciary jurisdiction to try acts of piracy, even in cases where their State has no direct link to
the offence.36 One of the problems with Somali piracy is that several States whose
forces are in the region only have jurisdiction under their national legislation
when acts of piracy are committed by their nationals or against ships flying their
flag. Consequently, these States have had to release pirates who they have captured because their courts have no jurisdiction to try them. Other States have
encountered problems because although their courts have jurisdiction, piracy as
defined in LOSC is not an offence under their national legislation.37
Third, Article 105 of LOSC gives every State the right, in areas outside the
territorial sovereignty of any State, to seize pirate ships and the property on
board and to arrest the pirates. However, it imposes no obligation on States to
exercise these enforcement powers. Naval forces have generally been reluctant
to exercise their authority in this respect, as they are acutely aware of the competing interests of the various stakeholders involved, including the State under
which the victim vessel is flagged, the company to which the ship is registered,
the State of the mariners taken hostage and the owner of the cargo on board.38
Fourth, Article 105 of LOSC gives the courts of the State which seized a pirate
ship and arrested the pirates the right to decide upon the penalties to be imposed.
However, it imposes no obligation to prosecute or punish the pirates. The catch
and release policy of some States with respect to Somali pirates indicates that
34Ibid.
35Robert Beckman, Somali PiracyIs International Law Part of the Problem or Part of
the Solution? Paper presented at the S. Rajaratnam School of International Studies
[RSIS], February 23, 2009 (Singapore).
36Ibid.
37Beckman and Davenport, Enhancing Regional Cooperation, 22.
38United States Department of Transportation (Maritime Administration), Statement of
RADM William Baumgartner on International Piracy on the High Seas before the Subcommittee on Coast Guard and Maritime Transportation, Committee on Transportation &
Infrastructure, US House of Representatives, February 4, 2009: available at http://www
.marad.dot.gov/documents/HOA_Testimony-RADM%20William%20BaumgartnerUSCG.pdf.
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there may be a lack of political will in many States to exercise their rights with
respect to Somali pirates. The pre-trial incarceration, trial and post-trial incarceration of Somali pirates involves significant political and resource commitments.39
Further, a successful legal outcome is not always assured,40 particularly if States
believe the evidence would be insufficient for a successful conviction under their
national laws and/or that their national legislation is inadequate to cover acts
which occur outside their territory, for reasons explained above. In addition, a
State which exercises jurisdiction may have to deal with convicted pirates seeking political asylum upon their release from prison.
Fifth, Article 100 of LOSC imposes a general obligation on States to cooperate
to the fullest possible extent in the repression of piracy. However, it imposes no
specific obligations on States to cooperate. Therefore, any cooperation among
States with respect to Somali piracy has been purely voluntary.
Sixth, the States with naval forces off Somalia seem to be unsure of how the
LOSC piracy regime applies to mother ships. Mother ships are ships which have
been seized by pirates. They are used by pirates to transport pirates, skiffs and
weapons in order to engage in pirate attacks far from the coast. It would seem
that the activities of the mother ships are offences under LOSC because they are
intentionally facilitating acts of piracy as provided in Article 101(c). In addition,
Article 105 permits the seizure of a ship taken by piracy and under the control
of pirates. Further, it can be argued that a mother ship is a pirate ship under
Article 103 of LOSC because it is intended by the persons in dominant control to
be used for the purpose of committing acts of piracy. Despite these provisions,
States with forces in the region seem reluctant to seize mother ships.
Seventh, questions have been raised as to whether the only State which can
prosecute the pirates is the State which seized them. Article 105 of LOSC provides
that the courts of the State which carried out the seizure may decide upon the
penalties to be imposed, and may also determine the action to be taken with
regard to the ships, aircraft or property, subject to the rights of third parties acting
in good faith. This provision implies that the seizing State will apply its national
legislation in imposing the penalty and in deciding upon the disposition of the
property and the ship. A literal reading of Article 105 suggests that the only State
which has the right to prosecute and punish the perpetrators is the State which
seized the pirates. However, when read in its context, in light of its object and
purpose and in light of the fact that piracy is generally regarded as a universal
crime under customary international law, Article 105 does not preclude the prosecution of the pirates by other States who have lawful custody over them.
39John I. Winn and Kevin H. Govern, Maritime Pirates, Sea Robbers and Terrorists: New
Approaches to Emerging Threats, The Homeland Security Review, 2/2 (Summer 2008):
141; Jon D. Pepetti, Building the Global Maritime Security Network: A Multinational
Legal Structure to Combat Transnational Threats, Naval Law Review, 55 (2008): 73, 111.
40Winn and Govern, Maritime Pirates, Sea Robbers and Terrorists.
jurisdiction over pirates and maritime terrorists
357
Eighth, practical problems exist in the prosecution of persons who are arrested.
Once a vessel is arrested for suspected piracy, the arresting officers have to ensure
that there is sufficient evidence to convict the perpetrators under the national
laws of the State in which the perpetrators are to be tried (be it the arresting State
or another State which has jurisdiction). However, officers on board warships
often lack the requisite experience in the securing of evidence at sea. Further, the
victims of the crime (the crew and owners of attacked ships) are from a different
jurisdiction from the prosecuting state and there may be difficulties in getting
them to give evidence in a trial against the perpetrators.
The attempts by the international community to enhance cooperation to deal
with acts of piracy by Somali pirates have highlighted the fact that there is a
wide divergence in the practice of States concerning the extent to which they
have exercised the permissive prescriptive and enforcement jurisdiction provided
for in the LOSC piracy regime. The IMO Secretariat has recognised that a lack of
uniformity in national legislation on piracy has made it more difficult to arrest
and prosecute pirates. In response, the IMO Secretariat has begun to compile
and review existing national legislation to prevent, combat and punish acts of
piracy.41
The problem of arresting and prosecuting Somali pirates is not just a problem
of national legislation on the definition of piracy and jurisdiction to prosecute
pirates. It also involves issues of human rights protections in national legislation,
the cost of transferring pirates to the territory of the arresting State, the difficulties
in obtaining evidence and witnesses, etc. Therefore, several States have entered
into bilateral transfer agreements with States in the region, such as Kenya and
the Seychelles, to transfer the pirates to them for prosecution.42 However, the
long-term effectiveness of such agreements is questionable. Neither Kenya nor
the Seychelles has sufficient capacity and resources to try and incarcerate pirates
in the absence of international support.43
In summary, Somali piracy has created unprecedented challenges to the LOSC
piracy regime. It has been difficult to seize pirate ships and arrest pirates, and it
has been even more difficult to prosecute them. The problems are in part legal,
but they are also economic and political. Seizing States are usually reluctant to
41 International Maritime Organization, Legal Committee, Piracy: Review of National
Legislation: Note by the Secretariat, LEG 96/7, August 20, 2009, paragraph 3.
42Yvonne M. Dutton, Bringing Pirates to Justice: A Case for Including Piracy within the
Jurisdiction of the International Criminal Court, Chicago Journal of International Law,
11 (2010): 197.
43For example, it is said that the current piracy trials have joined the huge backlog of
cases in Kenyas criminal justice system. Further, when an EU Delegation visited Kenya
between March and April 2009 to assess Kenyas needs for the detention and trial of
suspects, an amount of 1.74 million euros was said to be needed: James Thuo Gathii,
Kenyas Piracy Prosecutions, American Journal of International Law, 104 (2010): 416,
434.
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try the pirates unless they have a direct interest in the pirate attack, such as when
the ship attacked is flying their flag. Flag States arguably have an interest in prosecuting pirates who have attacked their vessels, but they seldom offer to do so.
Prosecuting the pirates in States in the region may be the only viable alternative,
as the economies of States in the region are directly affected. However, they may
be reluctant to do so unless they are provided with international assistance.44
The Challenges Posed by Piracy in Southeast Asia
Under LOSC, piracy can only be committed against ships on the high seas45 or
in the EEZ46 of States, that is, against ships in areas outside the territorial sovereignty of any State. While attacks on ships in Southeast Asia are commonly
described as piracy, in most cases the attacks are not piracy as defined in
Article 101 of LOSC. Most attacks on ships in Southeast Asia are against ships
in port, in internal waters, in the territorial sea, in straits used for international
navigation (such as the Malacca Strait or Singapore Strait) or in the archipelagic
waters of Indonesia, and consequently in maritime zones under the sovereignty
of the coastal State.47 These attacks are not considered acts of piracy governed by
the LOSC regime48 but are defined by the IMO as armed robbery against ships:
any illegal act of violence or detention or any act of depredation, or threat thereof,
other than an act of piracy, committed for private ends and directed against a ship,
or against persons or property onboard such ship, within a States internal waters,
archipelagic waters and territorial sea.49
The rules on piracy do not apply in these areas. Attacks on ships in maritime
zones under the sovereignty of the coastal States are not crimes under international law, but are only crimes under the laws of the coastal State, and possibly
the laws of the flag State and the State of nationality of the perpetrators.50 The
coastal State has the exclusive right to exercise the power of arrest over persons
44Gathii, Kenyas Piracy Prosecutions 434435.
45LOSC, Article 101.
46LOSC, Article 58(2).
47Robert C. Beckman, The 1988 SUA Convention and the 2005 SUA Protocol: Tools to
Combat Piracy, Armed Robbery and Maritime Terrorism, Maritime Affairs, 2(2) (2006):
29, reprinted in Sam Bateman et al. (eds.), Lloyds MIU Handbook of Maritime Security
(London: Taylor & Francis, 2009).
48LOSC, Article 101.
49International Maritime Organization, Code of Practice for the Investigation of Crimes
of Piracy and Armed Robbery against Ships, IMO Assembly Resolution A. 1025 (26)
(adopted December 18, 2009).
50For a general overview of criminal jurisdiction, see Robert Jennings and Arthur Watts
(eds.), Oppenheims International Law, Volume 1, 9th edition (Harlow: Longman, 1992),
456.
jurisdiction over pirates and maritime terrorists
359
in maritime zones under its sovereignty.51 Foreign warships have no power to
patrol in maritime zones under the sovereignty of a coastal State, and they have
no power to board ships or arrest persons without the consent of the coastal
State.52 Two areas in Southeast Asia where the piracy provisions could apply are
in the upper half of the Straits of Malacca and in the South China Sea, because
attacks in these areas could take place in the EEZ of the coastal States. The piracy
provisions do not apply to attacks on ships in the Singapore Strait and in the
lower half of the Malacca Strait because these areas are within the territorial sea
of the littoral States.53
The distinction between piracy and armed robbery against ships is very significant because it limits the types of cooperative measures which can be taken to
enhance the security of sea lanes and combat attacks against vessels. The countries in Southeast Asia jealously guard their sovereignty and oppose any suggestion for cooperative regimes which could undermine their sovereignty.54 They
are very unlikely to agree to other States patrolling waters or exercising police
power in maritime zones under their sovereignty. They are likely to insist that
any proposal for cooperative measures recognise their sovereignty and be consistent with the principles and rules of international law, especially LOSC.
UN Terrorism Conventions and Piracy in Somalia and Southeast Asia
One of the major reasons the international community has not been effective in
dealing with Somali piracy is that it has treated the issue almost exclusively as
one of piracy. Given the permissive nature of the LOSC regime on piracy, it may
have been wiser for the international community to have classified the acts of
Somali piracy as not only piracy, but also as terrorism by transnational organised
criminal groups. Almost every attack on a ship by Somali pirates is not only an
51 Robert Beckman and Tara Davenport, Maritime Terrorism and the Law of the Sea:
Basic Principles and New Challenges, (2010) Centre for International Law Conference
Paper, http://cil.nus.edu.sg/wp/wp-content/uploads/2010/12/Beckman-and-DavenportMaritime-Terrorism-31-Jan-2011-Final.pdf.
52Ibid., citing SS Lotus (France v Turkey), 1927 PCIJ (ser A) No. 10, 18.
53International Maritime Bureau, Piracy and Armed Robbery against Ships Annual Report 1
January31 December 2000, cited in Robert C. Beckman, Combating Piracy and Armed
Robbery Against Ships in Southeast Asia: The Way Forward, Ocean Development and
International Law, 33 (2002): 326.
54Eric Barrios, Casting a Wider Net: Addressing the Maritime Piracy Problem in Southeast Asia, Boston College International and Comparative Law Review, 28 (2005):
149, 160; Robert Beckman, The Establishment of a Cooperative Mechanism for the
Straits of Malacca and Singapore under Article 43 of the United Nations Convention
on the Law of the Sea, in Aldo Chircop, Ted L. McDorman and Susan J. Rolston (eds.),
The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Leiden:
Martinus Nijhoff Publishers, 2009).
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act of piracy. It is also an offence under both the 1988 SUA Convention and the
1979 International Convention Against the Taking of Hostages (1979 Hostages
Convention).55
The 1979 Hostages Convention is a general convention which applies to all acts
of hostage-taking, whether on land or at sea. It is relevant to maritime crimes in
instances where, in the commission of attacks on ships, the passengers or crew
are also held as hostages for ransom. The 1979 Hostages Convention may also apply
in situations where crew members are taken captive and are threatened to be
injured or killed unless the captain or other crew members perform a requested
act, such as opening the safe or opening the door to the ships citadel. The 1979
Hostages Convention follows the same scheme as the 1988 SUA Convention with
respect to jurisdiction, obligation to extradite or prosecute, and so forth as discussed above.56 As such, it becomes a useful addition to the toolbox that States
can use when a ship is hijacked and the ship and crew are held for ransom.
A third UN terrorism convention which could be used to combat Somali piracy
is the Convention for the Suppression of the Financing of Terrorism, 1999 (1999 Terrorism Financing Convention).57 The 1999 Terrorism Financing Convention is not
readily seen as a possible tool to deal with ship hijacking and hostage-taking
cases. One possible reason for this is the misconception that the Convention only
applies to financing of terrorist acts and that one has to prove that the act being
financed is committed with a terrorist intent or purpose. However, Article 2 of
the Convention provides that:
1.Any person commits an offence within the meaning of this Convention if that
person by any means, directly or indirectly, unlawfully and wilfully, provides or
collects funds with the intention that they should be used or in the knowledge that
they are to be used, in full or in part, in order to carry out:
(a)an act which constitutes an offence within the scope of and as defined in
one of the treaties listed in the annex;
The treaties listed in the annex to the Convention include the 1979 Hostages
Convention and the 1988 SUA Convention. As such, a person commits an offence
under the 1999 Terrorism Financing Convention if s/he provides funds with the
intention or knowledge that they will be used for the purpose of carrying out an
act which constitutes an offence under either the 1988 SUA Convention (such as
55Convention Against the Taking of Hostages, opened for signature December 17, 1979,
entered into force June 3, 1983, 1316 UNTS 205; Tuerk, Combating Terrorism at Sea,;
J. Ashley Roach, Global Conventions on Piracy, Ship-Hijacking, Hostage-taking, and
Maritime Terrorism, Session 3, Centre for International Law (CIL) Workshop on International Maritime Crimes: Legal Issues and Prospects for Cooperation in ASEAN, January1718, 2011, (Singapore).
56See, Beckman and Davenport, Enhancing Regional Cooperation.
57Convention for the Suppression of the Financing of Terrorism, opened for signature
December 9, 1999, entered into force April 10, 2002, 2178 UNTS 197.
jurisdiction over pirates and maritime terrorists
361
the hijacking of a ship) or the 1979 Hostages Convention (such as taking a crew
member hostage). The act of financing the commission of such offences is considered an offence under the Convention. There is no additional requirement that
the funds be used for a terrorist purpose or with a terrorist motive. The effect
of the provisions is that if a person provides funds with the intention or knowledge that they will be used for the purpose of hijacking a ship, he is deemed to
be financing terrorism, even though his motive or purpose, as well as that of
the pirates, is purely private gain.
The 1999 Terrorism Financing Convention could be used to pursue persons on
land who finance Somali piracy, even if they are based in other countries. This
could be a more effective tool in combating Somali piracy than attempting to
catch and seize pirates committing acts of piracy at sea.
These conventions would not only be useful tools in combating Somali piracy.
They would also be useful in combating serious attacks on ships in Southeast
Asia such as the hijacking of tug boats by criminal syndicates for re-sale in other
countries. These acts would be offences under both 1988 SUA Convention and the
1999 Terrorist Financing Convention.
Jurisdiction under the 2005 SUA Protocol
Background to the 2005 SUA Protocol
To enhance maritime security after September 11, 2001, the IMO urged its members to become parties to the 1988 SUA Convention. Consequently, the number of
States Parties to the 1988 SUA Convention almost tripled within five years, from
52 States on 31 January 2001 to 152 States on 31 October 2006. As of 30 April 2013,
there were 160 Parties to the 1988 SUA Convention.
In addition, in October 2001, the Legal Committee of the IMO also decided
to review the 1988 SUA Convention. The Legal Committee agreed to include the
review of the 1988 SUA Convention as a priority item in its work program.58 In
April 2002, the Legal Committee agreed to establish a Correspondence Group led
by the United States, with the short-term aim of developing a working paper on
the scope of possible amendments for consideration at the 85th session of the
Legal Committee in October 2003.
The Legal Committee worked on a revised draft protocol prepared by the
Correspondence Group over the next three years. The Correspondence Group
received comments and suggestions from numerous States and organizations
which participate in the work of the IMO. Most delegations expressed support
58IMO Legal Committee, 83rd Session, October 812, 2001. A summary of the work
of the Legal Committee is available on the IMO Home Page under Committees. See
www.imo.org.
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for the revision. However, concerns were expressed that the proposed draft
boarding provisions could intrude on the principles of freedom of navigation
on the high seas and upon the exclusive jurisdiction of flag States over their
ships on the high seas.59 Delegations also stated that the SUA Protocol must
not impinge on the operation of international commercial shipping. The two
articles which were the subject of major debate and disagreement were Article
3bis,60 which sets out new offences to be added to the 1988 SUA Convention, and
Article 8bis, which establishes new provisions for the boarding and search of
ships suspected of committing an offence under the 1988 SUA Convention and
the draft 2005 SUA Protocol.
After three years of study and deliberation, the Legal Committee completed
its work at its 90th session in April 2005.61 An International Conference on the
Revision of the SUA Treaties was held in October 2005 to adopt amendments to
the 1988 SUA Convention (and to the Protocol for the Suppression of Unlawful Acts
Against the Safety of Fixed Platforms Located on the Continental Shelf, 1988 (1988
SUA Protocol)).62 The 2005 SUA Protocol was formally adopted at the Conference
on 14 October 2005.
The 2005 SUA Protocol entered into force on 28 July 2010, ninety days after the
date on which 12 States formally ratified or accepted it by giving official notice
to the IMO Secretary-General of their consent to be bound by its provisions.63 To
become a Party to the 2005 SUA Protocol, a State must first become a Party to the
1988 SUA Convention.64
After the Protocol entered into force in July 2010, Articles 116 of the 1988 SUA
Convention, as revised by the 2005 SUA Protocol, together with Articles 17 to 24
of the 2005 SUA Protocol and its Annex, are to constitute a single instrument and
be referred to as the Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation, 2005.65 As of 30 April 2013, there were 23 States
Parties.
59IMO Legal Committee, 88th Session, April 1923, 2004.
60The term bis derives from Latin, meaning second or again. It is used in treaties and
similar documents when a revision/amendment adds another paragraph after an existing one, and it is not possible to simply add another number to the additional paragraph. For example, Articles 3bis and 8bis were added to the 1988 SUA Convention by
the 2005 Protocol and inserted after Articles 3 and 8 of the Convention.
61IMO Legal Committee, 90th Session, April 1829, 2005.
62Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms
Located on the Continental Shelf, opened for signature 10 March, 1988, entered into force
1 March 1992, 1678 UNTS 304.
632005 SUA Protocol, Article 18.
64Ibid., Article 17(4).
65Ibid., Article 15(2).
jurisdiction over pirates and maritime terrorists
363
Offences in the 2005 SUA Protocol
One of the significant aspects of the 2005 SUA Protocol is that it broadens the
list of offences by adding three categories of new offences. The first category of new
offences concerns acts of maritime terrorism, such as using a ship as a weapon or
as a means to carry out a terrorist attack.66 These new offences require a specific
knowledge and intent. They also require a terrorist motivethe purpose of the
act must be to intimidate a population or compel a government to do or abstain
from doing an act.67 These new offences update the categories of acts that might
endanger the safety of ships engaged in international maritime navigation.
The second category of new offences consists of non-proliferation offences.
These are intended to strengthen the international legal basis for impeding and
prosecuting the trafficking by commercial ships on the high seas of weapons of
mass destruction (WMD), their delivery systems and related materials. The nonproliferation provisions require States Parties to criminalize transport on the
high seas of WMD and certain related materials, as well as nuclear material and
equipment.68 The offence for trafficking in WMD or related materials on the high
seas requires certain knowledge and intent. However, no terrorist motive is
required because the proliferation offences are intended to cover the proliferation of WMD by sea for profit as well as for terrorist purposes. This category of
new offences establishes a new tool for combating the proliferation of WMD. The
United States justified the inclusion of this category of offences by pointing out
that it was a response to the measures called for in UN Security Council Resolution 1540 on the non-proliferation of WMD.69
The third category of new offences in the 2005 SUA Protocol makes it an offence
to transport by sea any person who has committed an offence under the 1988
SUA Convention or its 2005 Protocol or any of the other UN counter-terrorism
conventions when the transporting party intends to assist that person to evade
criminal prosecution. The counter-terrorism conventions concerned are listed in
an Annex. This offence also requires specific knowledge and intent to ensure
that innocent seafarers and masters are not made criminals.
Boarding Provisions in the 2005 SUA Protocol
The most significant change in the 2005 SUA Protocol is that it establishes a comprehensive set of procedures designed to facilitate the boarding of a vessel that
66Ibid., Article 3bis (1)(a).
67Ibid.
68Ibid., Article 3bis (1)(b).
69See Security Council Resolution 1540 (2004), adopted by the Security Council at its
4956th Meeting on April 28, 2004, UN Doc No. S/Res/1540/2004 available at, http://
daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/328/43/PDF/N0432843.pdf?OpenElement.
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is suspected of being involved in a SUA offence. Article 8bis allows States Parties
to board the vessels of other States Parties outside the territorial sea of any State.
If law enforcement or other authorized officials of a State Party (the requesting
Party) has reasonable grounds to suspect that the ship or a person on board the
ship is involved, or is about to be involved, in the commission of SUA offences, it
must ask the flag State of the ship to confirm the nationality of the ship and then
request authorization to board and to take appropriate measures to determine if
a SUA offence has been committed.70
The 2005 SUA Protocol envisages three mechanisms to allow States Parties to
consent to the boarding of a vessel.71 States Parties can either: (a) consent on
an ad hoc basis to requests for boarding,72 (b) consent implicitly by notifying
the Secretary-General of the IMO that prior authorization to board is given if
no response is received from the flag State after four hours of a request,73 or
(c) consent implicitly by notifying the Secretary-General of the IMO that prior
authorization to board is given (no time limit is imposed).74 Such notifications
of implicit consent given by notifying the Secretary-General of the IMO can be
withdrawn at any time.
For ad hoc requests to board, the flag State can either: (a) authorize the boarding subject to any conditions it may impose, (b) conduct the boarding with
its own law enforcement or other officials, (c) conduct the boarding with the
requested party subject to any conditions it may impose, or (d) decline to authorize a boarding.75
Many States and organisations argued that the new boarding provisions must
not unduly interfere with the economic interests of flag States and ship owners or
with the rights of seafarers. As a result, the new boarding provisions contain the
most comprehensive set of safeguards ever included in any such convention.76
Among the safeguards are the following:
Use of force must be avoided except when necessary to ensure the safety of
its officials and persons on board or where the officials are obstructed in the
execution of authorized actions, and any use of force must not exceed the
minimum necessary and reasonable in the circumstances;77
702005 SUA Protocol, Article 8bis (5).
71 Natalie Klein, The Right of Visit and the 2005 Protocol on the Suppression of Unlawful
Acts Against the Safety of Maritime Navigation, Denver Journal of International Law
and Policy, 35 (20062007): 319.
722005 SUA Protocol, Article 8bis (5)(c).
73Ibid., Article 8bis (5)(d).
74Ibid., Article 8bis (5)(e).
75Ibid., Article 8bis (5)(c).
76Ibid., Article 8bis (10).
77Ibid., Article 8bis (9).
jurisdiction over pirates and maritime terrorists
365
The boarding State must take into account the dangers and difficulties involved
in boarding a ship at sea;78
The boarding State must take due account of the need not to endanger the
safety of life at sea and of the safety and security of the ship and its cargo, and
must take reasonable steps to avoid a ship being unduly detained or delayed;79
The boarding State must take due account of the need not to prejudice the
commercial and legal interests of the flag State, and must advise the master
of its intention to board and afford him the opportunity to contact the owner
and the flag State;80
The boarding State is liable for damage, harm or loss attributable to it when the
grounds for the boarding prove to be unfounded or when the measures taken
are unlawful or exceed those reasonably required in the circumstances.81
Consistency of the 2005 SUA Protocol with International Law
As explained earlier, under LOSC, the flag State has exclusive jurisdiction on
the high seas and other States have the right to board foreign flagged vessels
in the limited circumstances set out in Article 110 (piracy, slavery, unlawful
broadcasting and where suspicions as to the nationality of the vessel arise).
Other States can also board foreign-flagged vessels if given express consent by
the flag State. Article 110 also recognises that additional reasons for exercising the
right to board foreign flagged vessels may be established by treaty.82 The 2005
SUA Protocol creates a new treaty power to exercise the right to board foreignflagged vessels. The boarding provisions were inevitably the subject of intense
negotiations. As mentioned above, many States maintained that any new boarding provisions must be consistent with LOSC and must not interfere with the
rights and jurisdiction of coastal States in their territorial sea, freedom of navigation, or the principle that ships on the high seas are subject to the exclusive
jurisdiction of the flag State.83 The United States, on the other hand, insisted on
the inclusion of a set of procedures to expedite the boarding of ships suspected
of engaging in SUA offences.
The boarding provisions which were eventually agreed upon are consistent
with LOSC. Boarding can only take place on ships under the flag of States Parties and only seaward of the outer limits of any States territorial sea (on the
high seas or in an EEZ).84 Boarding can only occur with the express consent
78Ibid., Article 8bis (3).
79Ibid., Article 8bis (10)(a)(i)(iv)(ix).
80Ibid., Article 8bis (10)(v)(viii).
81 Ibid., Article 8bis (10)(b).
82LOSC, Article 110 states except where acts of interference derive from powers conferred by treaty.
83Klein, The Right of Visit, 319.
842005 SUA Protocol, Article 8bis (5).
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of the flag State.85 The implicit consent procedures established under the Protocol are optional and States Parties can choose whether or not to participate
in the implicit consent regime. If the flag State does decide to give its consent
to the boarding, it may impose conditions on the boarding State.86 Further, given
the comprehensive safeguards, there is little likelihood that the boarding provisions will be open to abuse.
Jurisdiction under the Proliferation Security Initiative
Background
The Proliferation Security Initiative (PSI) is an initiative of the United States
to establish a coalition of willing partners to respond to the growing challenge
posed by the proliferation of WMD. It is an attempt by the United States to create
a framework for international cooperation to deal with the threat posed by WMD
outside the international organisations and international treaties that regulate
the proliferation of WMD.87 The PSI was announced by United States President
George Bush in Poland on 31 May 2003, just prior to the G8 Summit. President Bush
stated:
When weapons of mass destruction or their components are in transit, we must have
the means and authority to seize them. So today I announce a new effort to fight
proliferation called the Proliferation Security Initiative. The United States and a number of our close allies, including Poland, have begun working on new agreements to
search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies. Over time, we will extend this partnership as broadly as possible
to keep the worlds most destructive weapons away from our shores and out of the
hands of our common enemies.88
The statement by President Bush implied that new international agreements
would be created that would allow the United States and its allies to search planes
and ships carrying suspect cargo and seize illegal weapons or missile technologies. However, as the PSI developed, it has not been based upon the development
of new international agreements, but on the development of cooperative arrangements among participating States regarding the interdiction of ships suspected
of carrying WMD.
In 2003 the United States began working with ten other countries to develop
a set of principles that would identify practical steps to interdict shipments of
85Ibid., Article 8bis (5)(c).
86Ibid., Article 8bis (5)(c)(iii).
87For background information see, http://www.state.gov/t/isn/c10390.htm.
88President George W. Bush, Remarks at Wawel Royal Castle in Krakow, Poland on May31,
2003, available at http://georgewbush-whitehouse.archives.gov/news/releases/2003/
05/20030531-3.html.
jurisdiction over pirates and maritime terrorists
367
WMD flowing to or from state or non-state actors of proliferation concern. The
ten countries were Australia, France, Germany, Italy, Japan, the Netherlands,
Poland, Portugal, Spain and the United Kingdom. At a meeting in Brisbane in
September 2003, the eleven participating countries agreed that North Korea
and Iran were of particular proliferation concern and also agreed to a nonbinding Statement of Interdiction Principles (Interdiction Principles).89
There were 102 States participating in the Proliferation Security Initiative as
20 November 2012.90
Consistency of Interdiction Principles with International Law
Questions have been raised as to whether some of the actions called for in the
Interdiction Principles are consistent with existing rules of international law. Of
particular concern was whether the provisions dealing with interdiction at sea
were consistent with the provisions of LOSC.
The Interdiction Principles call upon participating States to take specific
actions in support of interdiction...to the extent their national legal authorities
permit and consistent with their obligations under international law.91 Generally speaking, some of the specific actions set out in the Interdiction Principles
are consistent with international law as set out in LOSC. However, some of
the specific actions required by the Interdiction Principles will be qualified by the
provisions of LOSC.
The actions set out in the Interdiction Principles with respect to ships flying
the flag of participating States are entirely consistent with the provisions in LOSC.
States agree, on their own initiative, to board and search any suspect ships flying
their flag in their internal waters or territorial seas, or in areas beyond the territorial seas of any State.92 This is consistent with the principles governing jurisdiction over maritime activities. States have a right to board and search ships flying
their flag in their internal waters and territorial seas because the sovereignty of a
State extends to these maritime zones and a States laws apply to ships flying its
flag. In areas beyond the territorial sea of any State, the flag State has exclusive
jurisdiction over ships flying its flag.
The Interdiction Principles also provide that a participating State should seriously consider giving other States consent to board and search ships flying its
flag under appropriate circumstances.93 Given that the flag State has exclusive
89Interdiction Principles for the Proliferation Security Initiative, adopted in Washington,
September 4, 2003, available at http://www.state.gov/t/isn/c27726.htm (Interdiction
Principles).
90See, Proliferation Security Initiative, US Department of State, available at, http://www
.state.gov/t/isn/c27732.htm.
91 Interdiction Principles, Principle 4.
92Ibid., Principle 4(b).
93Ibid., Principle 4(c).
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robert beckman
jurisdiction over ships flying its flag outside the territorial sea of any State, it is
consistent with LOSC for flag States to give such consent. One of the goals of the
United States under the PSI is to enter into bilateral agreements with major flag
States which give the United States permission to board and search ships flying
their flag when such ships are suspected of carrying WMD. The first such boarding agreement was signed by the United States and Liberia on February 11, 2004.
The boarding agreement gives the United States authority, on a bilateral basis, to
board ships flying the flag of Liberia if they are suspected of carrying illicit shipments of WMD. According to the United States, this boarding agreement was an
important step in further operationalizing the PSI and strengthening the mechanisms that the United States has at its disposal to interdict suspect WMD-related
cargoes. As of May 2013, the United States has Ship-Boarding Agreements with
11 flag States.94
The Interdiction Principles also provide that participating States should:
(T)ake appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected
of carrying such cargoes to or from states or non-state actors of proliferation concern
and to seize such cargoes that are identified; and (2) to enforce conditions on vessels
entering or leaving their ports, internal waters or territorial seas that are reasonably
suspected of carrying such cargoes, such as requiring that such vessels be subject to
boarding, search, and seizure of such cargoes prior to entry [emphasis added].95
To the extent that these actions concern ships in a participating States ports and
internal waters as well as ships entering or leaving its ports or internal waters,
this is consistent with customary international law and LOSC. Participating States
agree to stop and/or search ships in their ports or internal waters when such
ships are reasonably suspected of carrying such cargoes to or from States or nonState actors of proliferation concern. Participating States also agree to enforce
conditions on suspect ships entering or leaving their ports and internal waters.
Such conditions might include a requirement that such ships be subject to
boarding and search prior to entry. Because ports and internal waters are within
territorial sovereignty, a State may impose conditions on ships in its ports and
internal waters and on ships in its territorial sea intending to enter its ports
or internal waters.96
The most controversial actions set out in the Interdiction Principles concern
actions of coastal States with regard to ships in their territorial sea or contiguous
94Antigua and Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, Marshall Islands,
Mongolia, Panama and St. Vincent and the Grenadines. See Proliferation Security Initiative, US Department of State, available at http://www.state.gov/t/isn/c27733.htm.
95Interdiction Principles, Principle 4(d). Bold emphasis added.
96Robin R. Churchill and Alan V. Lowe, The Law of the Sea (Manchester: Manchester University Press, 1999), 62. LOSC itself presupposes that States may set conditions for entry
to their ports (see LOSC, Articles 25(2), 211(3) and 255).
jurisdiction over pirates and maritime terrorists
369
zone, and with regard to ships entering or leaving its territorial sea. These are
controversial because under LOSC the ships of all States have a right of innocent passage through the territorial seas of all States.97 Passage is innocent so
long as it is not prejudicial to the peace, good order or security of the coastal
state.98 It is difficult to argue that the mere passage of a vessel containing WMD
through the territorial sea of a coastal state is prejudicial to its peace, good order
or security, given the fact that military vessels carrying nuclear weapons and
foreign nuclear-powered ships and ships carrying nuclear substances99 have a
right of innocent passage through the territorial sea of a coastal State. Further,
as acknowledged by many commentators, it is the intended use of the WMD at
the point of destination that constitutes a threat to the coastal State and not the
shipment of WMD itself.100
Furthermore, special passage rules for the ships of all States apply in straits
used for international navigation which fall within the territorial sea of the littoral states.101 The ships of all States have the right of transit passage through
straits used for international navigation, and such a right cannot be impeded or
suspended by the littoral states.102 The right of transit passage is an even broader
right than the right of innocent passage.
Therefore, some States Parties to LOSC are unlikely to interfere with ships exercising the right of transit passage through a strait used for international navigation or the right of innocent passage through the territorial sea. Instead, they are
likely to take the position that any action taken with respect to such ships must
be consistent with their obligations under international law as set out in LOSC.
However, it would be legal for the coastal State to board and search a suspect ship
passing through its territorial sea if the flag State of the suspect ship expressly
authorized or requested such action by the coastal State.
There is one other circumstance in which it may be legal for a coastal State
to board and search a suspect ship in its contiguous zone or territorial sea. If a
suspect ship was on a route in which there was evidence indicating that it was
intending to bring WMD into the territory of the coastal State in violation of its
customs laws and regulations, such a ship would not have a right of innocent
passage. It could be boarded and searched by the authorities of the coastal State
in its territorial sea. Similarly, it could be boarded and searched in the contiguous
97See,
LOSC, Article 17. Italic emphasis added.
LOSC, Article 19(1).
99See, LOSC, Article 23 which assumes that foreign nuclear-powered ships and ships
carrying nuclear or other inherently dangerous or noxious substances have the right
of innocent passage.
100See, for example, Jack I. Garvey, The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security
Initiative, Journal of Conflict and Security Law, 10 (2005): 131.
101 See LOSC, Part III.
102Ibid., Articles 38 and 44.
98See,
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robert beckman
zone, which is a zone adjacent to the territorial sea in which the coastal state has
special powers to enforce its customs and immigration laws.103
Relationship between PSI and 2005 SUA Protocol
The 2005 SUA Protocol is consistent with the PSI and is complementary to it. The
2005 SUA Protocol specifically provides that States Parties may conclude agreements or arrangements between them to facilitate law enforcement operations
carried out under the boarding provisions.104 The PSI would arguably be such an
arrangement. In addition, the 2005 SUA Protocol specifically provides that States
Parties are encouraged to develop standard operating procedures (SOP) for joint
operations and to consult with other States with a view to harmonizing SOP.105
The link between the PSI and the boarding provisions in the 2005 SUA Protocol
could be a very significant development. The Interdiction Principles are very general. As mentioned above, the United States has negotiated bilateral ship boarding agreements with most of the major flag States, but the safeguards in the 2005
SUA Protocol Article 8bis are much more extensive than those contained in the
bilateral agreements. Therefore, if States cooperating in the PSI used the procedures for boarding that are set out in Article 8bis as their SOP, it would ensure
that any interdictions and boardings conducted under the PSI follow common
procedures that contain extensive safeguards. This would alleviate some of the
concerns expressed by some States that interdictions and boardings under the
PSI might be abused.
This link between the interdiction and boarding procedures in Article 8bis
and the PSI could develop independent of the process of ratification or accession to the 2005 SUA Protocol. If States participating in the PSI were to follow
the procedures and safeguards in Article 8bis as SOP under PSI, the Article 8bis
procedures could be incorporated into the PSI through practice. This would be
very positive development.
Conclusions
There are two fundamental principles of international law governing enforcement jurisdiction over crimes committed at sea. First, coastal States have the
exclusive right to board and arrest ships in maritime zones subject to their sovereignty. Second, ships on the high seas are subject to the exclusive jurisdiction
of the flag State and may not be boarded without the consent of the flag State or
the master of the ship, except in the case of piracy.
103Ibid., Article 33.
1042005 SUA Protocol, Article 8bis, paragraph 13.
105Ibid.
jurisdiction over pirates and maritime terrorists
371
Somali piracy has made it clear that there are gaps and loopholes in the piracy
regime provided for in LOSC. One problem is that many States have not updated
their national legislation on piracy and brought it into conformity with LOSC.
However, the major problem is that the piracy regime is permissive, and many
States are reluctant to exercise the rights they have under LOSC to arrest and
prosecute pirates. States should review their legislation to bring it into conformity
with the LOSC provisions on piracy. They should also be more willing to exercise
jurisdiction and prosecute pirates when they have an interest in particular acts
of piracy, including when the attack is against a ship flying their flag or owned
by their nationals.
The international community has responded to new threats to maritime
security, such as the hijacking of ships and maritime terrorism, by creating new
global conventions which impose obligations on States Parties to cooperate in
suppressing certain clearly defined acts by creating new offences, establishing
extraterritorial jurisdiction over these offences, and ensuring that suspects are
arrested and either prosecuted or extradited. The cooperative mechanisms established in these conventions are consistent with the principles of international law
governing enforcement jurisdiction at sea. They do not infringe on the exclusive
jurisdiction of flag States over ships flying their flag, and they do not infringe on
the enforcement jurisdiction of coastal States in maritime zones subject to their
sovereignty.
The new conventions give the international community the legal tools required
to suppress more serious acts of piracy such as those involving ship hijacking and
hostage-taking. They can also be used to suppress acts of maritime terrorism.
However, these conventions will not be effective unless all States are willing to
ratify and effectively implement them in good faith.
The PSI is a cooperative mechanism established by the United States together
with like-minded States to deal with the threats posed by the proliferation of
weapons of mass destruction. The Interdiction Principles in the PSI are vague in
nature, but they are likely to be interpreted by States in a manner that is consistent with the fundamental principles governing jurisdiction over maritime
crimes. If interdictions under the PSI were to follow the procedures set out in the
2005 SUA Protocol, it would alleviate any suspicion that the PSI undermines
the fundamental principles governing jurisdiction over crimes at sea.
Therefore, the fundamental principles governing jurisdiction over piracy and
crimes at sea have withstood the test of time. They have neither been amended
nor adapted. Instead, new cooperative mechanisms consistent with the principles
have been developed to deal with new threats and challenges.
The international legal regime governing jurisdiction over piracy and crimes at
sea, including maritime terrorism, is an adequate regime. In practice, however, its
effectiveness in addressing new threats and challenges has been compromised by
a lack of political will exhibited by States to ratify and effectively implement the
global conventions which make up that legal regime.
Chapter sixteen
Koreas Trial of Somali Pirates
Seokwoo Lee and Young Kil Park*
Introduction
On 15 January 2011, the M/V Samho Jewelry, a chemical tanker operated by Samho
Shipping of South Korea was hijacked by Somali pirates. In a robust response,
the Korean navy recaptured the vesselan action in which eight of the pirates
were killed. The five captured pirates were subsequently escorted to Korea for
trial. All five pirates were prosecuted, and on 7 May and 1 June 2011, the Busan
District Court of Korea declared them guilty which was subsequently affirmed by
the Busan District High Court on 8 September 2011. On 22 December 2011, the
final decision was issued by the Supreme Court regarding the same case. These
cases received much attention both domestically and abroad as the first piracy
trial in Korea, and issues have been raised as to whether the Korean Criminal
Code is adequate in punishing piracy. This chapter gives an overview of the case
and seeks to evaluate the Korean criminal law system in relation to it and indicates lessons learned.
Facts of the Case
On 15 January 2011, at about 7:47 am, chemical carrier the MV Samho Jewelry
(Samho Jewelry)1 operated by Samho Shipping of Korea was hijacked by Somali
*Seokwoo Lee is Professor of Law at Inha University, Incheon, Korea and Young Kil Park
is Senior Researcher, Korea Maritime Institute (KMI), Korea.
1 The MV Samho Jewelry is operated by Samho Shipping of Korea, owned by the Acta
Group of Norway and registered in Malta. In April 2010, another group of Somali pirates
had hijacked the M/V Samho Dream, another ship operated by Samho Shipping (300,000
tonnage ship registered in the Marshall Islands). In exchange for its release, the pirates
demanded and successfully received US$9.5 million.
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pirates on the high seas of the Northern Indian Ocean near Oman.2 On board the
Samho Jewelry was a crew of 21 memberseight Koreans including the captain,
two Indonesian, and 11 Burmese nationals. Four pirates first approached the carrier in speed boats carrying AK-47 assault rifles, RPG-7 rocket-propelled grenade
launchers and Browning automatic rifle (BAR) 63, from which they climbed on
to Samho Jewelry with a ladder. The crew activated the Ship Security Alert System
and took shelter in the rope storage area below the quarter deck. About 10 more
pirates climbed on board the carrier and took US$2,500 worth of money and
valuables, while beginning to tear down the door to the storage room in which
the crew members were hiding. Captain Seok Hae-Kyun and crew moved to the
second shelter, the CO2 Room (carbon dioxide tank storage for fire hazards).
When the pirates began to hammer and fire their weapons at the room, Captain
Seok opened the door in fearing an explosion and was subsequently captured.
The pirates, in full control of Samho Jewelry, appropriated and transferred to their
mother ship approximately US$12,000 worth of goods including laptops, watches,
cell phones and shoes. The pirates then proceeded to call Samho Shipping to
prepare a ransom.3
On their way back to Somalia, on 18 January the pirates on board Samho Jewelry
attempted an additional hijacking of a Mongolian ship while navigating 778 miles
northeast of Garacad, located on the coast of north-central Somalia. The South
Korean Navy Unit, Cheonghae, that had been tracking Samho Jewelry, launched
an attack on their speed boat with a Lynx helicopter around 15:35, causing the
pirates to return to Samho Jewelry.4 The Cheonghae Unit then attempted a rescue operation on rigid-hulled inflatable (RIB) boats with the Lynx helicopters as
cover, but the pirates not only open fired at the navy but also threatened to kill
the sailors being held hostage and used them as human shields. This operation
failed with the unit returning with one wounded. In anticipation of further rescue
operations, the pirates ordered that the Master of the Samho Jewelry to make for
a Somali port with all speed, but Captain Seok purposefully delayed the trip by
sailing in an indirect manner and even damaging the steering room. When the
pirates learned of this, they physically assaulted Captain Seok and threatened to
kill him.
2The hijacking occurred at about 350 nautical miles southeast of Port of Muscat, Oman.
Latitude: 2200N Longitude: 06400E.
32011 Go-Hap 931 (Isolated) (Busan Dist. Ct. 2011); Supreme Court [S.Ct.], No. 2011 Do
12927, 22 December 2011. Refer to the annex.
4Cheonghae Unit is a naval unit comprised of a 4,500-ton Destroyer DDH-976, Antisubmarine Super Lynx Helicopter, and an inspection/investigation team of 30 special
warfare forces (UDT/SEAL). In March 2009, the first Korean Destroyer (KDX-II) Munmu
the Great was dispatched to Somali waters, followed by Dae Jo Young. Replacements
have been dispatched every 6 monthsYi Sun Shin, Gang Gam Chan, Wang Gun, Choi
Young.
koreas trial of somali pirates
375
The Cheonghae Unit attempted a second rescue operation on 21 January 2011,
at about 4:25 am, 670 miles northeast of Garacad, Somalia. At about 5:55 am,
Destroyer Choi Young and a Lynx helicopter attacked the pirates, to which the
pirates responded again by taking the sailors as shields out to the wing bridge to
the portside and starboard of the steering room and firing back at the naval unit.
Seeing their unfavourable situation, some of the pirates sought out Captain Seok
and shot him, leaving him in critical condition. A boarding part from the Cheong
hae Unit boarded the Samho Jewelry killed eight pirates including the leader and
captured five. The operation was successfully completed with the return home of
the entire crew safely aside from the captain.5
Once Samho Jewelry entered a Yemeni port with the captured pirates, the
Korean government sought to negotiate the transfer of the pirates to Yemeni
judicial authorities and their trials in the neighboring countries of Yemen or
Kenya. When cooperation became difficult, however, the pirates were returned
to the Korean government and subsequently transferred to Korea on 30 January
2011.6 Upon their arrival in Korea, the pirates were handed over to the South
Regional Headquarters of the Korea Coast Guard having jurisdiction over Busan,
where Samho Shipping is based. On 7 February 2011, after an investigation, they
were sent to the Busan Supreme Prosecutors Office, who indicted the pirates on
25 February 2011, for violations of the Criminal Code and Punishment of Damaging
Ships and Marine Structures Act.7 The trials were relatively swift, with four of the
pirates in a jury trial by request and one pirate in a bench trial. They were found
guilty on 27 May and 1 June respectively. One pirate (Arai Mahomed) known to
have fired on Captain Seok received a life sentence, while the others received
between 13 to 15 years. Both the prosecution and the pirates appealed.
The Prosecution appealed on the grounds of 1) the unreasonable sentencing
for Arai, for whom they had sought the death penalty, and 2) a misinterpretation
of the law and unreasonable sentencing for the other four pirates. The pirates
appealed for excessive sentencing as well as pleading innocence for certain
counts.8
The judiciary endeavoured to protect the rights of the suspects/defendants
throughout the entire process. For example, foods forbidden for Muslims such as
5Captain Seok was critically injured by shots to the abdomen and other parts of his body.
He was treated in a hospital in Oman until he was flown to Korea in a special ambulance
jet on 29 January 2011. After undergoing several successful operations, he regained consciousness and is now receiving further treatment and recovering.
6The bodies of the eight Somali pirates killed in the operation lay in a police hospital in
Oman until they were handed over to the interim Somali government on 16 February
2011.
7Indictment (on file with author).
8Prosecution-Pirates Both Appeal, Piracy Trial Round 2, Segye Ilbo [World Daily], 3 June
2011, http://www.segye.com/Articles/NEWS/SOCIETY/Article.asp?aid=20110603004122
&subctg1=&subctg2=.
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seokwoo lee and young kil park
pork were not provided;9 and because there were no Koreans speaking Somali,
three-way interpretation service from Korean-English-Somali and vice-versa was
provided.10 For each of the five suspects, one or two public defenders were provided for legal assistance.
Issue of Executive Jurisdiction of the Cheonghae Unit
The defence attorneys Jeong Hae-Young and Lim Jun Seop argued that the court
did not have jurisdiction over the case for violation of due process of law, citing
Article 12 of Koreas Constitution providing for due process of law, prohibiting torture, establishing the rule of warrants and the right to receive lawyer assistance.
They specified that following the arrest, the suspects were transferred to Korea
without any procedural basis; they were not arrested pursuant to any warrants;
the warrants were still not issued during the transfer period; they did not receive
any legal assistance; due process was not guaranteed when detained in the ships
bathroom by the Korean navy; and despite physical assaults by the Samho Jewelry
sailors during the arrest, the Korean soldiers did nothing to prevent these acts
occurring.11
The Basis for Executive Jurisdiction
The first issue to be discussed is whether the Cheonghae Unit of the Korean Navy
had the authority to arrest and confine the pirates. The executive jurisdiction
exercised by the Cheonghae Unit in subduing the pirates may be grounded in
Article 105 of the United Nations Convention on the Law of the Sea, 1982,12 (LOSC)
and various Security Council resolutions in international law,13 but their basis in
domestic legislation is unclear.
The Cheonghae Unit was created pursuant to the passage of the Motion
to Dispatch Military Units to the Somali Waters by the National Assembly on
9Pirates
Sentenced, What now? Yonhap News, 27 May 2011, http://www.yonhapnews
.co.kr/society/2011/05/27/0701000000AKR20110527152200051.HTML?template=2086.
10The judges hired an additional Somali interpreter from the Australian Institute of
Interpreters and Translators, thereby assigning a total of two interpreters. [Leading
Role in Piracy Trials] 12 Juries Selected from 100 Candidates, Busan Ilbo [Busan Daily],
23 May 2011.
11 2011 Go-Hap 93 Pangyeolmun [Verdict], 23 (Busan Dist. Ct. 2011) (2011 Go-Hap 93).
12United Nations Convention on the Law of the Sea, 1982, opened for signature 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
13Security Council Res. 1816, U.N. Doc S/RES/1816 (2 June 2008); Security Council Res.
1846, U.N. Doc S/RES/1846 (2 December 2008); Security Council Res. 1851, U.N. Doc
S/RES/1851 (16 December 2008); Security Council Res. 1897, U.N. Doc S/RES/1897
(30 November 2009); Security Council Res. 1918, U.N. Doc S/RES/1918 (27 April 2010);
Security Council Res. 1976, U.N. Doc S/RES/1976 (11 April 2011).
koreas trial of somali pirates
377
3 March 2009. The motion was proposed to prevent damage caused by pirates
to Korean ships passing through the Gulf of Aden, off Somalia, and to cooperate with the Combined Maritime Forces for maritime security operations. Each
year, the National Assembly has agreed to extend the operation of the Motion for
another year. Apart from the extension, however, the agreement does not mention the scope of activities for the Cheonghae Unit.
In spite of the lack of a clear legal basis, the Cheonghae Unit arrested the pirates
and confined them for nine days. Under the Korean Criminal Procedure Act, the
judicial authority to investigate and arrest lies with the public prosecutor. Judicial
police officials such as investigators and police lieutenants make investigations
under the instruction of the public prosecutor, and law enforcement officers such
as police sergeants and patrolmen assist the investigation under the direction
of judicial police officials.14 Regarding special matters for example, prisons and
forest protection, the Act regarding the Persons Performing the Duties of Judicial
Police Official and the Their Scope of Duty specifically provides for those carrying
out the tasks of enforcement officers. However, the Act does not grant judicial
powers to military units like the Cheonghae Unit, and therefore, the defence
attorneys in this case pointed out that the exercise of judicial authority by the
Cheonghae Unit had no legal basis.
The court did not accept these arguments but rather held that because no
specific provisions for the procedure or significance of arrest and their transfer
to investigative bodies existed, it was proper to apply the Criminal Procedure
Act of the Republic of Korea.15 The court went on to find that the arrest made
by soldiers on board the Cheonghae Unit was an Article 213 arrest made by a
person other than the public prosecutor or judicial police official, or an arrest of
flagrant offender by any persons.16 Finding the navy, dispatched under Congressional consent as representing the government, to be any person was perhaps
the only possible decision due to the legislative deficiency regarding the activities
of the Cheonghae Unit.
To cure this legal defect, as of June 2012 a bill was proposed before the
National Defense Committee of the National Assembly, Special Act for Anti-Piracy
14Criminal Procedure Act, Articles 195 and 196.
152011 Go-Hap 93, 4; 2011 Do 12927, 34.
16Ibid.; Criminal Procedure Act, Article 212 (Arrest of Flagrant Offender) Any person may
arrest a flagrant offender without a warrant. Article 213 (Delivery of Arrested Flagrant
Offender) (1) In cases where a person other than a public prosecutor or judicial police
official arrests a flagrant offender, he shall immediately turn over the offender to a public prosecutor or judicial police official. (2) In cases where judicial police official has
taken delivery of a flagrant offender, he shall ask the name, address of the arrester, and
the reason for the arrest, and when necessary he may request the arrester to accompany
him to the police station.
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ctivities in Somali Waters.17 This Act grants judicial authority to the captain of
A
ships by providing that regarding acts of piracy in the Somali waters, the captain
is assigned the role of judicial officer and those appointed by the captain the role
of enforcement officer.18
Concerns over Extended Confinement without Warrant
Another issue raised by the defence attorneys was that the suspects were confined
for nine days without a warrant. Generally under criminal law, when a suspect
needs to be taken into custody, an application for an arrest warrant must be made
within 48 hours of arrest otherwise, the suspect should be immediately released.19
When arrests are made by judicial officers, the suspects must be handed over to
the prosecutor within 10 days or be released,20 while the prosecutor must indict
them within 10 days or release them.21 The prosecutors confinement of the suspect can be granted once within ten days by a district court judge.22 In this case,
however, the court determined the arrest to have been made by private individuals that were not subject to the above restrictions. The Criminal Procedure
Act Article 213 paragraph 1 states that when an arrest is made by someone other
than the public prosecutor or an enforcement officer, the suspect is to be immediately handed over to the authorities. For the Cheonghae Unit, it took 9 days to
transfer the pirates to Korea and hand them over to the Coast Guard which had
proper judicial authority. In summary, the defence attorneys argued that this violated the Criminal Procedure Act, which provides for an immediate handover.
The court, however, interpreted the word immediately generously. The word
immediately in Article 213(1) of the Criminal Procedure Act was held not to
be adjacent in time to the point of arrest, but rather as not delaying handover
17 Agenda no. 1806600. This legislation was proposed by Congressman Lee Jin Bok on
17 November 2009 but was not passed. In March 2011, the same was reintroduced
to the National Defense Committee in the interim assembly. If the bill is not passed
before the entire assembly before 30 June 2012 when the 18th session comes to an end,
the bill will automatically be discarded.
18 Article 6. There is criticism that granting judicial authority to the captain through acts
such as this is improper under the international legal system because Article 197 of
the Criminal Procedure Act requires the qualification and scope of function of special
judicial police officials to be provided in the Acts. The implementation of this provision
is the Act regarding the Persons Performing the Duties of Judicial Police Official and the
Scope of Their Duty. Therefore, it is only proper that the authority to the captain of military ships dispatched to Somalia be granted through an amendment of this provision.
See, National Assembly Evaluation Report regarding the Special Act (10 March 2011).
19 Criminal Procedure Act, Article 200bis (5).
20Ibid., Article 202.
21 Ibid., Article 203.
22Ibid., Article 205(1).
koreas trial of somali pirates
379
or continuing confinement without justifiable reason.23 The court thus held
that in consideration of the overall situation at the time, the nine days spent in
transferring the suspects after their arrest by the Cheonghae Unit was inevitable
due to spatial and material limitations and therefore cannot be seen as having
delayed handover or continued confinement without justifiable reason. The court
also specifically pointed out that 1) the Cheonghae Unit had attempted to hand
over the suspects to neighboring countries such as Oman while holding them in
isolated confinement on Samho Jewelry but was turned down and thus had to
transfer them to Korea, 2) the transfer of suspects to Korea was difficult due
to finding flights but it was able to complete the transfer to Gimhae Airport near
Busan with the cooperation of the United Arab Emirates, and 3) the suspects
were handed over to the Coast Guard policemen at the airport.24
Unfortunately, the courts decision can be interpreted as allowing an indefinite
confinement past nine days without a warrant as long as it is inevitable due
to spatial, physical limitations. Such a decision is problematic in that it prima
facie violates Article 9 of the International Covenant on Civil and Political Rights
(ICCPR),25 to which Korea is a party and which is considered to be part of domestic law26 pursuant to Article 6 paragraph 1 of the Constitution.27 The ICCPR, which
provides for the physical liberty and safety of suspects, states: No one shall be
deprived of his liberty except on such grounds and in accordance with such procedure as are established by law;28 Anyone arrested or detained on a criminal
charge shall be brought promptly before a judge or other officer authorized by law
to exercise judicial power and shall be entitled to trial within a reasonable time
or to release;29 and, Anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that that court may
decide without delay on the lawfulness of his detention [emphasis added].30
232011 Do 12927, Pangyeolmun [Verdict], 23 (Supreme Court 2011).
242011 Go-Hap 93, 4.
25International Covenant on Civil and Political Rights opened for signature 16 December
1966, entered into force 23 March 1976, 999 UNTS 171 (ICCPR) (effective in Korea as
of 10 July 1990).
26Korean scholars are divided on the definition of domestic laws. While some argue that
domestic laws are equivalent to the legislation enacted by the National Assembly,
others argue that depending upon its contents, they may have status equal to that of
Order, Legislation or Constitutional Rule (between legislation and Constitution). While
the ICCPR is often considered as having the status of legislation or constitutional rule,
its equivalent effect to at least that of legislation is undisputed.
27Korean Constitution, Article 6(1), Treaties duly concluded and promulgated under the
Constitution and the generally recognized rules of international law shall have the
same effect as the domestic laws of the Republic of Korea.
28ICCPR, Article 9(1).
29Ibid., Article 9(3).
30Ibid., Article 9(4).
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seokwoo lee and young kil park
In accordance with these provisions, Criminal Procedure Act Article 200bis
paragraph 5 requires the application for warrants to be made within 48 hours or
otherwise, the suspect should be released immediately. Even for arrests made
by individuals other than judicial officials, there is no reason to interpret immediate as being any longer than 48 hours even if it were inevitable due to spatial,
material limitations, perhaps even more so when confinement is by a private
individual rather than the prosecutor or enforcement officer. The ICCPR does not
distinguish between the two arrests regarding a prompt handover, which signifies
that arrests made at the scene of the crime cannot be an exception.
Though interesting, the problem here is that while the decision recognised
that applications for warrants must be made within 48 hours even when suspects are arrested at the crime scene by private individuals, it held that it is
proper to start the 48 hours when the investigative agency receives the suspects,
which is when the right to legal assistance also needs to be guaranteed.31 The
Supreme Court saw this as serving the purpose of guaranteeing reasonably sufficient time for the investigating institutions to determine whether to apply for
an arrest warrant.32
This seems even more problematic than the earlier point made in allowing
nine days of confinement when it was inevitable due to spatial, material limitations because this decision allows for indefinite confinement by a private individual, without legal assistance or judicial authorization until the investigative
agency receives the suspect.
Such a decision seems to reflect: 1) the government position that it cannot
release the clear suspects of piracy merely for the difficulty of a swift transfer
to Korea, and 2) the courts position that it cannot dismiss the case solely for
the reason that it took nine days to apply for an arrest warrant. Regardless, this
decision is likely to attract criticism for having neglected human rights clearly
guaranteed in the ICCPR for reasons of legislative deficiency.
In order to achieve a legislative resolution, the above mentioned Special Act for
Anti-Piracy Activities in Somali Waters allows for the captain to make the arrest
without a warrant,33 and should he desire to detain the individual, he must apply
for a warrant within 48 hours in written form (including electronic format) to the
prosecutor who subsequently needs to make the application to the district court
judge having jurisdiction.34
This legislation excludes the application of Article 202 (limiting the duration
of confinement to 10 days) and Article 214 paragraph 2 (recognising the suspects
application for the review of legality of confinement regarding his arrest and
31 2011 Go-Hap 93, 5.
322011 Do 12927, 3.
33Special Act for Anti-Piracy Activities in Somali Waters, Article 7(3).
34Ibid., Article 8(1)(2).
koreas trial of somali pirates
381
detention). It also provides for the prosecutors period of arrest to begin upon
receiving the suspect.35 Thus, according to this legislation, there is no limit to
the captains confinement of the suspect. Allowing unlimited confinement in this
manner while neglecting the suspects right to apply for review of the legality of
confinement, can be criticised as having only considered the governments position without regard for the protection of the suspects rights.36
The Issue of Treatment and Assault during Confinement
The defence attorneys also asserted that the suspects were confined in the
bathrooms after arrest and that in spite of physical violence by the crew members, the soldiers simply stood by.37 The court did not accept this argument for
lack of objective evidence,38 although human rights violations occurring in the
process of arrest and detention in Somali waters would be nearly impossible to
prove. When considered together with the holding abovethat Korean Criminal
Law begins to apply when the suspects are handed over to Korean investigative
authorities, it is highly probable that the human rights of suspects will be further
violated without legal protection.
Basis for Jurisdiction and Trial
The Basis for Jurisdiction
The basis for jurisdiction of Korean courts over the Samho Jewelry piracy case
can be found in both international and domestic law. Its basis in international
law can be found in the LOSC, Article 105, the Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation, 1988 (SUA Convention),39
Article 6, and the International Convention against the Taking of Hostages,
1979,40 Article 5. The Korean Constitution provides in Article 6 paragraph 1,
35Ibid., Article 8(3)(4).
36Ibid., Article 8(6). This paragraph provides for the captain of the vessel to release the
suspect if he determines protection to be difficult on board the ship for reasons of lack
of facilities. This is problematic, however, as it would allow for the release of a suspect or suspects for reasons irrelevant to the facts constituting the crime. It also seems
improper to grant full authority to the captain to make such decisions.
372011 Go-Hap 93, 3.
38Ibid., 5.
39Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, opened for signature 10 March 1988, entered into force 1 March 1992, 1678
UNTS 222 (SUA Convention) (effective in Korea as of 2003).
40International Convention against the Taking of Hostages, opened for signature 17December 1979, entered into force 3 June 1983, 1316 U.N.T.S. 205 (effective in Korea as of
1983). However, Korea has yet to adopt the Protocol of 2005 to the Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988.
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seokwoo lee and young kil park
Treaties duly concluded and promulgated under the Constitution and generally
recognized rules of international law shall have the same force and effect of law
as domestic laws of the Republic of Korea and therefore does not require additional legislation for domestic application. This was confirmed in numerous cases
as well. For example, the Korean Constitutional Court stated regarding the KoreaJapan Fisheries Agreement, This agreement between Korea and Japan regarding fisheries is a treaty concluded and promulgated under the Constitution and
therefore has the same force and effect of law as domestic laws.41
The Supreme Court also recognized the effect of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention)42
as domestic law as well as its nature when it held, The Warsaw Convention, as
amended by the Hague Protocol, has the same effect as domestic laws; and in
relation to civil law, it is lex specialis....43
The basis in domestic law can be found in Article 6 of the Criminal Code providing for passive personal jurisdiction and Article 3 of the Law on the Punishment
of Harmful Acts against Ships.44 The latter, in particular, aims to carry out the
obligations of the SUA Convention and therefore does not require the victim to
be a Korean national. Article 3 paragraph 1 of this Law covers foreign nationals in
violation of the SUA Convention, while paragraph 3 covers foreign nationals that
have violated the SUA Convention within Korean territory. In the case at bar, the
court applied the law pursuant to the above articles.45
On 25 March 2011, the Ministry of Justice submitted to the National Assembly
an amendment to the Criminal Code establishing universalism. The amendment,
in Article 7 paragraphs 1 to 4, listed the crimes to which universal jurisdiction
would apply46 and, in paragraph 5, allowed Korea as a State party to exercise
41 99 Heon-Ma 139, 142, 156, 160 (Consolidated) Gyeoljeong [Decision] (Const. Ct.,
21 March 2001). See e.g. 99 Heon-Ga 13 Gyeoljeong (Const. Ct., 26 April 2001) (Application for Constitutionality Review of the Counterfeit Check Control Act Article 2(2)); 2002
Heon-Ma 611 Gyeoljeong (Const. Ct., 24 April 2001) (finding Medical Treatment Law,
Article 5 unconstitutional); 2000 Heon-Ba 20 Gyeoljeong (Const. Ct., 27 September
2001) (Appeal to the unconstitutionality ruling of the Agreement of the International
Monetary Fund Article 9(3)).
42Convention for the Unification of Certain Rules Relating to International Carriage by Air,
opened for signature 12 October 1929, entered into force 13 February 1933.
4382 Da-Ka 1372 Pangyeol [Verdict] (S. Ct. 3, July 22, 1986).
44Original title of the Act is Punishment of Damaging Ships and Marine Structures Act no.
9109, implemented on 14 September 2008.
452011 Go-Hap 93, 22.
46Amendment Article 7(1)(4) lists: Article 119 (use of explosives), Article 207 (counterfeiting of currency), Article 208 (acquisition of counterfeit currency), Article 212
(attempt to acquire counterfeit currency), Article 214 (counterfeiting marketable securities), Article 218 (counterfeiting revenue and postal stamps), Article 223 (acquisition of counterfeit marketable securities and revenue and postal stamps), Article 287
(abduction and kidnapping of minors), Article 288 (abduction, kidnapping and sale for
koreas trial of somali pirates
383
universal jurisdiction on the basis of the SUA Convention by calling them Crimes
punishable pursuant to treaties binding upon the Republic of Korea. By providing a clear provision in the Criminal Code, the court further emphasized universal
jurisdiction. The Ministry of Justice issued a statement regarding the background
to the newly created provision:
While there is an increase of international crimes violating the universal principle of
human rights, as well as an increase in international conventions seeking to regulate
them, there are crimes committed by foreign nationals abroad that do not fall under
the jurisdiction of our Criminal Law even with mechanisms such as personal, territorial jurisdiction, or protectionism. Therefore, in order to meet the need for the
application of our Criminal Code, and to strengthen international alliances, we have
hereby created the basis for internationalism, a principle of application in international criminal law.47
Trial Court Proceedings and Verdict
On 25 February 2011, the prosecution indicted the pirates with the following eight
counts of criminal acts of piracy: forced taking of the ship, forced taking of property on the ship, forced operation of the ship, demand of ransom for the release of
hostages, firing at soldiers, physical assault, threat and bodily harm inflicted upon
the crew, use of the crew as human shields, and firing upon the captain.48
In March, following a conference with the court appointed lawyers, all the
pirates except Hussein Mahamud requested a jury trial.49 On 11 April 2011, Busan
District Criminal Court no. 5 (Presiding Judge Kim Jin-Seok and Judges Lee HyoIn, Kim Byung-Man), having considered the requests and other matters, decided
to commence the jury trial on 23 May for five days followed by a bench trial on
1 June 2011.50 The jury was comprised of nine Busan residents who could attend
the entire hearing and three reserve members and, to ensure efficient proceedings, provided three English interpreters and two Somali interpreters.51
profit), Article 289 (abduction, kidnapping and sale for international transfer), Article
291 (abduction and kidnapping for marriage), Article 292 (purchase or harboring of
abducted, kidnapped or sold persons), and Article 294 (attempts to violate Articles 287
to 291, excluding habitual offenders).
47Ministry of Justice, Explanatory statement for partial amendment of the general provisions of Criminal Law 22 (April 2011).
482011 Go-Hap 93, 813.
49Somali Pirate Case Likely to Proceed as Jury Trial, Yonhap News, 16 March 2011,
http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=100&oid=001&ai
d=0004963092.
50Somali Pirate Jury Trial Opens Next Month on the 23rd, Chosun Ilbo [Chosun Daily],
13 April 2011, http://news.chosun.com/site/data/html_dir/2011/04/13/2011041301866
.html.
51 Exceptional Records Set by the Samho Jewelry Piracy Trial, Yonhap News, May 27,
2011, http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=102&oid=001
&aid=0005084634.
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The Korean jury trial system, or the Civil Participation in Criminal Trials Act, was
implemented on 1 January 2008 pursuant to legislation of 1 June 2007, in order
to increase trust and democratic legitimacy52 in cases dealing with crimes of
heavy sentencing, for example, murder, robbery, and rape. When the crime falls
under this category, the court must first identify the suspects intentions in written form. The suspect must submit a document within seven days of receiving
a copy of the arraignment. When a submission is not made, it is presumed that
a jury trial is not desired.53 The Korean jury system is a mixture of the common law jury system and civil law Schffengericht used in countries such as
France and Germany. In a jury trial, the jury is selected from the general public
to act independently from judicial officials. When a jury determination is made
regarding the guilt or innocence of the suspect, the judicial official follows their
decision. In Schffengericht, however, the jury is granted both the position and
authority equal to that of judicial officials in determining issues of fact and law.
In the Korean jury system, the jury in principle deliberates without the judicial
official and must arrive at a unanimous decision regarding the guilt or innocence of the defendant. If unanimity cannot be reached, a majority decision may
be permissible after hearing the opinion of the judicial official participating in the
trial. When found guilty, the jury continues to deliberate regarding the sentence
and puts forth opinions. Such opinions are not binding upon the court but rather
have an advisory effect.54
In general, the jury is composed of between three and seven jury members,
including the reserve members and trials are completed within one to three days.
However, the jury for the Somali piracy case was comprised of 12 members, and
the trial proceeded for five days. This was the largest and longest case in Koreas
short jury trial history, but this was understandable considering that it was the
first piracy case before Korean courts (and thus receiving much attention both
domestically and abroad). Particular attention was therefore devoted to ensuring fairness, including provision of three-way interpretation. In the end, the jury
sentenced Arai to life imprisonment for having fired at the captain, and the other
pirates to 1315 years. The judges respected this decision and pronounced similar
sentences, as Hussein Mahamud received a similar sentence of 15 years after a
bench trial.
Along with the eight counts of criminal acts mentioned above (forced taking
of the ship, forced taking of property on the ship, forced operation of the ship,
demand of ransom for the release of hostages, firing at soldiers, physical assault,
threat and bodily harm inflicted upon the crew, use of the crew as human shields,
52Civil Participation in Criminal Trials Act, article 1.
53Ibid., Article 8(1)(3).
54Ibid., Article 46. See Guide to Civil Participation in Criminal Trials, http://help.scourt
.go.kr/nm/min9/min98/index.html.
koreas trial of somali pirates
385
and firing upon the captain), the defendants were also charged with attempted
maritime robbery and murder, attempted robbery and murder, obstruction of
justice (special operations) and infliction of injury, violation of the punishment
of Damaging Ships and Marine Structures Act, maritime robbery and infliction of
injury, and robbery and infliction of injury.55
One of the key issues was the shooting of the captain, but aside from that
count, all the pirates were found guilty. Based on the testimonies of both pirates
and the crew, although he himself denied it, the court found that Arai had fired at
the captain. Another important question was whether the pirates had conspired
to fire at the captain, an issue that all the pirates aggressively denied. The court
held that it was difficult to conclude that the pirates had conspired to kill the
captain in order to retaliate for causing their imminent capture in the midst of
operation of the Cheonghae Unit. Therefore, on the count of firing at Captain
Seok, the other four pirates were found to be not guilty.56
Regarding the reasoning behind the heavy sentences, the court listed as part of
its reasoning: distress inflicted upon the victims and their families; their collective and systematic attack upon the Korean military forces dispatched under law
to protect the safety of Korean ships and to participate in the international effort
for international maritime security, which it was argued represents an intolerable act towards a sovereign State; the excessively selfish and greedy motive of
the pirates in seeking to become rich quick at the cost of lives; the daring and
indiscriminate scheme in hijacking ships on the high seas and attempting an
additional hijacking with the former as the mother ship; and the need to warn
the Somali pirates in relation to their operations in waters where Korean ships
navigate frequently.57
Appeals Court Verdict
Following the sentencing given at the original trial, both the defence and prosecution immediately appealed, for reasons of excessive sentencing and innocence on certain accounts by the defence and misinterpretation of the law and
unreasonably reduced sentencing by the prosecution which had sought capital
punishment. The Busan District High Court, the appeals court for the case, issued
its decision three months later, an unprecedentedly swift verdict for a criminal
case.58 The appeals court, however, merely remedied the application of law by
the trial court and went on to accept the jurisdiction and factual findings, as well
552011 Go-Hap 93, 2324.
56Ibid., 2728.
57Ibid., 25.
582011 No. 349, Pangyeolmun [Verdict], (Busan Dist. High Ct. 2011).
386
seokwoo lee and young kil park
as upholding the sentences.59 The Supreme Court rejected the appeals of both
the defence as well as the prosecution and upheld the trial court sentences.60
The Significance of the Trial and Future Hearings
This case was Koreas first trial in respect of piracy. Koreas interest in these proceedings was significant in large part because the Somali pirates had previously
hijacked the Samho Dream in April 2010, for which Samho Shipping had paid a
ransom of US$9.5 million for its release on 6 November 217 days after its capture.61
This was also the reason why the Korean government decided to repatriate the
pirates on Samho Jewelry to Korea to undergo trial when their handover to neighbouring countries became unfeasible. Such a decision contributed to the realisation of international criminal justice, even more significant in that it occurred
among the recent practices of arrest and release among other States.
The trial process can be regarded as swift and fair. Only four months elapsed
from investigation to the trial courts verdict and three months from the appeal
to the decision of the appeals court. Procedures also featured the appointment
of two legal counsels for each of the defendants in the jury trial and one counsel
for the defendant in the bench trial, in spite of the fact that this was a case involving accomplices; the provision of Somali interpretation from abroad; the guarantee of suspect/defendants human rights; and successful jury trial proceedings.
However, it is regrettable that after their arrest in the Indian Ocean, not only
were the pirates confined for nine days without intervention of a court or legal
counsel, but that the actions of the Cheonghae Unit had no clear legal basis in
domestic law, something which the court unfortunately acquiesced to.
59The appellate court remedied the trial courts misapplication of the law. The trial court
had sentenced Arai to a life sentence for attempted murder and robbery against a vessel
and a fixed-term for assault and robbery against a vessel. For the former, the sentence
was reduced to attempted murder and attempted robbery against a vessel but with the
addition of the sentence from a lesser included offense, the court ultimately sentenced
him to life imprisonment. However, according to Article 38, Section 1, Item2 and Article 55, Section 1, Item 2, the addition to sentencing from a lesser included offense can
only be applied to a fixed-term sentence and thus cannot result in life imprisonment.
In order to remedy this, the appellate court did away with the decision of the lower
court in that, while deciding a life sentence for attempted murder and robbery against
a vessel and a fixed-term for assault and robbery against a vessel, it issued life imprisonment without a reduction in the sentence. The appellate court also added time to the
sentences of the other defendants for the crime of special obstruction of public duty
resulting in injury that was omitted by the trial court. Ibid., 1215.
602011 Do 12927.
61 Complete Release of Samho Dream Crew...Govt Confirms, Yonhap News, 6 November 2010, http://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=100&oid=
001&aid=0004748097.
CHapter seventeen
A Missing Part of the Law of the Sea Convention:
Addressing Issues of State Jurisdiction over Persons at Sea
Irini Papanicolopulu*
Introduction
The United Nations Convention on the Law of the Sea, 1982 (LOSC)1 is a milestone
for international law, in general, and for the law of the sea, in particular. It regulates uses of the sea and addresses most of the issues that arise with respect to
the rights and duties of States. In the Convention, the distribution of powers and
duties is based on a dual scheme: spatial, which varies according to the zone
considered, and functional, which considers the different situations that may
request a State to exercise its jurisdiction.2 The LOSC thus divides the sea into
maritime zones, but it also contains parts dealing with, among others, jurisdiction
in respect to navigation, exploitation of living and non-living resources, marine
scientific research, and prevention of pollution of the marine environment
It would, however, be excessive to consider that the LOSC has addressed
once and for all every legal issues connected with the seas and recent literature
has often focused on the problems and gaps in the LOSC regime.3 This chapter
addresses one such issue, indeed one that is little, if at all, studied. That is, the
absence, in the Convention of a part addressing the jurisdiction of States over
*Dr Irini Papanicolopulu is Lecturer in International Law, School of Law, University of
Glasgow and Senior Researcher in international law/Aggregate Professor at the University of Milano-Bicocca, Italy. Research for this paper was funded by the EU under grant
252478 FP7-PEOPLE-2009-IE.
1 United Nations Convention on the Law of the Sea opened for signature on 10 December
1982, in force 16 November 1994, 1833 UNTS 3 (LOSC).
2Yoshifumi Tanaka, A Dual Approach to Ocean Governance (Farnham: Ashgate, 2008),
2125.
3Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS
Convention (Leiden/Boston: Martinus Nijhoff Publishers, 2005), Anastasia Strati, Maria
Gavouneli and Nikolaos Skourtos (eds.), Unresolved Issues and New Challenges to the Law
of the Sea: Time Before and Time After (Leiden: Martinus Nijhoff Publishers, 2006).
388
irini papanicolopulu
persons. No general rule exists, like those relating to sovereignty in the territorial
sea, or rights in the contiguous zone, exclusive economic zone or continental
shelf, or like that consecrating the jurisdiction of the flag State, or the principle
that imposes the obligation to protect and preserve the marine environment. This
is not to say that persons are completely unknown to the reader of the LOSC.
Persons are mentioned now and then, often in connection with the power of a
State to control, arrest or prosecute and punish them.
The presence of persons at sea does, however, pose a number of issues. This
chapter focuses on one among them in particular, though perhaps the first such
issue logically considered. Its purpose is to enquire into which State has jurisdiction over persons who are at sea. Scholars have generally refrained from addressing the topic, either within the context of law of the sea, or within the broader
context of general international law. Nevertheless, there seem to be at least three
good reasons for pursuing this line of inquiry.
The first is based on factual considerations: there are many persons at sea and
their numbers are increasingly growing. While figures are not available for all categories of seagoing persons, estimates of men and women employed in shipping,
fishing and energy production are significant. An estimate 466,000 officers and
721,000 ratings are currently serving on internationally trading merchant ships.4
There are almost 35,000 persons engaged in sea fisheries.5 It is not easy to find
estimates of persons employed on offshore platforms, but by way of example, the
average platform requires 50100 persons and in the year 2000, about 19,000
people were employed by the UK offshore industry alone.6 Numbers of persons
engaged in illegal activities, spanning from arms and drugs trafficking to illegal
fishing to persons smuggling and to piracy and other acts against the safety of
navigation, though smaller are also significant. In addition, people at sea are not
always there in order to work. Many use the sea to go from one place to another,
including passengers of ships but also, and increasingly, migrants and persons
fleeing violence in their home or host countries and seeking asylum elsewhere.
For example, from January to September 2011, more than 55,000 migrants and
asylum seekers fleeing violence in Tunisia and Libya reached the Italian island
of Lampedusa.7 All these persons will sooner or later come under the power of
4Numbers and nationality of worlds seafarers, at http://www.ics-shipping.org/shipping
facts/worldtrade/world-seafarers.php?SID=050e09a4e27ecd7dda3191afa00ebfa6.
5Food and Agriculture Organization (FAO), The State of World Fisheries and Aquaculture,
(Rome: FAO, 2010).
6http://www.oilandgasuk.co.uk/publications/Production/Working_Offshore.cfm
7Parliamentary Assembly of the Council of Europe, Committee on Migration, Refugees
and Population Ad Hoc Sub-Committee on the large-scale arrival of irregular migrants,
asylum-seekers and refugees on Europes southern shores, Report on the visit to Lampedusa (Italy), 30 September 2011, AS/MIG/AHLARG (2011) 03 REV 2, p. 2.
a missing part of the law of the sea convention
389
one or more States, and it is necessary to understand when and how a State may
exercise its jurisdiction over each of them.
This leads to the second reason for devoting some attention to this topic. The
existence or not of jurisdiction makes the difference between the lawful exercise
of power by a State over a person, on one hand, and the unlawful exercise of
power, on the other. In terms of international law, it is the existence of a rule
that attributes jurisdiction to a State over a person that makes the actual exercise
of this power lawful. On the contrary, if a State exercises power over a person
without there being a rule that allows this, then there is an unlawful act which
constitutes a violation of international law and may cause the State to incur international responsibility. In other words, clarifying the content of the primary rules
regulating jurisdiction over a person helps assessing whether the rule has been
breached by the conduct of the State, and therefore determining if the secondary
rules on State responsibility will apply.8 The increasing numbers of persons at
sea, and the corresponding rise in illegal activities at sea, are evidence that there
will be many instances in which the legality of the claim by a State to exercise
its power over a person will have to be assessed. Providing a rational and clear
guidance in this respect many render this assessment less problematic.
The third reason is a more general one. The law of the sea does not operate in
legal isolation, but constitutes a part of international law and therefore interacts
with other fields of international law. In this respect, the content attributed to
the notion of jurisdiction varies and may assume different meanings in different contexts. At the same time, there may be a cross-contaminationpossibly
leading to a cross-fertilisationbetween notions deriving from different fields
of international law. The notion of jurisdiction under the law of the sea, for
example, can and will influence the application of rules in other fields, such as
human rights. It should not come as a surprise that human rights courts have
made recourse to the notion of jurisdiction contained in law of the sea rules, in
order to determine the applicability of human rights obligations.9
8As provided by Article 2(b) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001.
9Rigopoulos v. Spain decision of 12 January 1999 application no. 37388/97, Reports of Judgments and Decisions 1999II. The extent to which the European Court of Human Rights
has resorted to law of the sea concepts of jurisdiction in its decisions is analysed by
Tavernier, who acutely points out that, while the notion of jurisdiction emerging from
the Courts decisions is autonomous, it is also largely based on the notions to be found in
international law and the law of the sea (Paul Tavernier, La Cour europeenne des Droits
de lHomme et la Mer, [The European Court of Human Rights and the Sea] in La mer
et son droit: melanges offerts a Laurent Lucchini et Jean-Pierre Queneudec [The Sea and
its Law: Essays offered to Laurent Lucchini and Jean-Pierre Queneudec] (Paris: Pedone,
2003), 575, 583. The opposite is also true. The International Tribunal for the Law of the
Sea, in particular, has addressed more than once issues of human rights in its decisions
concerning provisions of the law of the sea. See the comments by Tullio Treves, Human
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It is not the aim of this chapter to propose a new paradigm for the exercise
of jurisdiction by States, as there seem to be already sufficient models that are
applicable. Rather, it proposes to go through this maze of rules, contained in
the LOSC and other treaties, trying to consider their application from a different
perspective. The focus will no more be on the interest of the State to affirm and
pursue its rights and interests, as the chapter will adopt the point of view of persons, purposing to rationalise and describe the rules that allow a person at sea to
determine what is the State that has jurisdiction over the person and what are the
subject matters that this State can regulate and enforce vis--vis this person. In
addressing this topic it is necessary to look first at the meaning of the term under
international law and at how the general principles, which have been developed
mainly to address situations on land, apply at sea. On this basis, the main part of
the chapter will be devoted to the listing and description of the rules that may
be used to attribute jurisdiction over a person at sea. These include those rules
that refer directly to persons, rules that refer to the object on which persons are
to be found, and finally general rules on the attribution of jurisdiction. The outlook on jurisdiction will be completed by considering two further cases. Rules
that exclude the exercise of jurisdiction, and situations in which there is no rule,
either specific or general, that may lead to the determination of which State has
jurisdiction.10
Jurisdiction under International Law
There is no commonly agreed definition of the term jurisdiction, endorsed in
a universal instrument, and the reason for this may well be that this word does
not have a unique meaning, but may signify different and sometimes opposing
things. For this reason, before discussing the jurisdiction of State over persons at
sea it seems useful to provide a brief overview of its different meanings of jurisdiction under international law.
Rights and the Law of the Sea, Berkley Journal of International Law, 28 (2010): 1. This is
a topic beyond the scope of this chapter and will not be dealt with here.
10A number of collateral issues are outside the scope of this chapter, such as the means
for addressing situations of overlapping jurisdiction by two or more States (see the analysis in Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (Leiden/Boston:
Martinus Nijhoff Publishers, 2007), in particular 159177), situation in which a State
having jurisdiction authorises another to act on its behalf (for a discussion of recent
practice in this respect see, Douglas Guilfoyle, Shipping Interdiction and the Law of the
Sea (Cambridge: Cambridge University Press, 2009), in particular 8096 and 243259
and Patricia Mallia, Migrant Smuggling by Sea (Leiden/Boston: Martinus Nijhoff Publishers, 2010), in particular 112158) and the legal consequences of mandatory exercise
of jurisdiction.
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391
Broadly speaking, jurisdiction is a manifestation of the power to rule. The term
can therefore be referred not only to States, but also to other organs. This is true
for jurisdiction as referred to national and international courts, thus meaning
the scope of the competence of a tribunal to rule on cases submitted to it. The
International Tribunal for the Law of the Sea (ITLOS) therefore has jurisdiction
in the cases provided for by Article 288 LOSC. It is, however, in its meaning as the
power of a State to rule that it is most often encountered in international law, and
it is this meaning that will be adopted throughout this chapter.
Jurisdiction may therefore be defined as the power of States to create and
apply rules. This power stems directly from sovereignty11 and may assume three
different forms. Legislative (or prescriptive) jurisdiction is the power of a State to
create legal rules regulating conduct. Enforcement jurisdiction is the power of a
State to apply its rules through coercive action. Finally, adjudicative jurisdiction
is the power of a State to decide, through its judges, on the interpretation and
application of legal rules. Adjudication may be seen as sub-generis of prescriptive jurisdiction, if one considers that the competence of courts is stated in legal
instruments adopted by States in their exercise of legislative jurisdiction,12 or as
an aspect of enforcement jurisdiction, since it puts into effect the general and
abstract rules that are contained in laws. Despite these considerations, it can also
be seen as separate, since the judges of a State may decide a case applying rules
adopted by another State.13
From a domestic point of view, a State has absolute jurisdiction and can thus in
principle regulate any conduct, wherever it takes place and whatever the nationality of the subjects involved.14 The application of this principle would however
bring chaos to the international community as there would be countless cases
of overlapping jurisdiction. Therefore, most rules of international law concerned
with jurisdiction have the purpose of allocating the power to prescribe or enforce
conduct among States, so as to avoid or at least to limit cases in which more than
one State may regulate activities.15 Allocation can be achieved on the basis of
different principles. The territorial principle attributes jurisdiction to a State over
persons located and activities taking place in its territory. The nationality principle attributes jurisdiction to a State over persons that have its nationality, even
11 Permanent Court of International Justice, S.S. Lotus (France v Turkey) (Judgement),
(1927) PCIJ (ser A) No. 10, 19; Frederick A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, Recueil des Cours, 186 (1984): 9115, 20, takes this
view but he considers that sovereignty is linked to territory.
12Vaughan Lowe and Christopher Staker, Jurisdiction, in Malcolm D. Evans (ed.), International Law, 3rd edition (Oxford: Oxford University Press, 2010), 313339, 317.
13Private international law regulates the when and how of this.
14S.S. Lotus, 19.
15Lowe and Staker, Jurisdiction, 314.
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when these persons are in the territory of another State or in an area over which
no State exercises rights.16 The passive personality principle permits States to regulate activities that negatively impact on their nationals. The protective principle
permits a State to exercise its jurisdiction in cases when an activity threatens the
essential interests of that State. Finally, the universal principle allows States to
exercise their jurisdiction with respect to specific acts disregarding location and
nationality.17
One of the aims of the law of the sea since its formation has been to allocate
jurisdiction between States engaged in activities at sea. A rather peculiar aspect
of jurisdiction at sea is that, while it reposes on the traditional grounds of territoriality and nationality, and subsidiarily on the other principles just mentioned,
it often contemplates limited rights based on a functional approach, which make
reference not only to the place where the activity takes places or to the nationality of the actor, but also to the interest to be regulated or defended by the State
acting.18 Functionality is therefore a constituent element of the jurisdiction of
States at sea. In order to determine whether a State has the right to regulate conduct or to enforce its laws and regulation at sea, one has to consider not only the
maritime zone within which the activity has taken place and the flag of the ship,
but also the scope of the purposed regulation.19 For instance, a State may arrest a
fishing vessel flying another flag and stationing in its exclusive economic zone if
it fishes without license,20 but not if it just exercises the freedom of navigation.21
Before turning to the main topic of the chapter, it is considered useful to
address and hopefully clarify two possible sources of confusion, relating to unlawful exercise of jurisdiction and to the exercise of lawful jurisdiction that violates
rules other than those considered here.
In the first place, the notion of jurisdiction discussed so far is what may be
termed lawful jurisdiction, or jurisdiction under the law. There is however also
(at least) one other meaning attributed to the word. One other meaning may be
16 The paper consciously avoids referring to areas beyond national jurisdiction at this
point, as this would be a tautology.
17 As Lowe and Staker, Jurisdiction, 326327 point out, universal jurisdiction is indeed
composed of two separate strands, that is the wish to punish heinous crimes and the
need to assert jurisdiction in cases that otherwise would go unpunished.
18 It has thus reached the situation, foretold for jurisdiction in general, by Lowe and
Staker, Jurisdiction, 316, according to which States having an interest in regulating
specific activities outside the borders of their own territory expand their jurisdiction
accordingly.
19 This is not to say that the same paradigm may not operate on land. In that case, however, there is a presumption that a State can legislate and enforce rules concerning any
conduct taking place on its territory, which does not exist at sea outside the narrow
belt of the territorial sea.
20LOSC, Article 73(1).
21 Ibid., Article 58(1).
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393
found in the jurisprudence of human rights bodies, when they consider jurisdiction as the trigger for the application of the substantive provisions and eventually
for the administrative mechanisms designed to ensure compliance with substantive obligations. Jurisdiction in this context includes two different aspects of the
exercise of power. The first aspect refers to the power attributed by a rule of
international law to a State to act in a specific situation, for example, the right
of the coastal State to arrest a vessel that is seriously and wilfully polluting its
territorial sea.22 The second aspect refers to the actual exercise of power by the
agents of a State over a person, whether permitted by a rule of international law
or not, for instance in the case a vessel is boarded and the persons on board
arrested by a State other than the flag State. To distinguish between the two, I will
call the former de iure jurisdiction and the latter de facto jurisdiction.23
What has created some confusion is the fact that, while de iure jurisdiction is
always lawful, de facto jurisdiction may be lawful or unlawful. It is lawful when it
stems from a rule conferring upon the State de iure jurisdiction. The counterpoint
to this is that the exercise of a power without a valid permission under international law would amount to unlawful exercise of de facto jurisdiction and would
be unlawful. Taking the case just described, if the reason for boarding the foreign
vessel is that it is engaged in piracy, then the exercise of enforcement jurisdiction
is lawful, since this is permitted under Article 105 LOSC. If, on the other hand,
the vessel is boarded because it transports drugs, and assuming that there is no
consent from the flag State for this operation, then the action is unlawful but still
consists in de facto exercise of enforcement jurisdiction. The notion of unlawful
exercise of jurisdiction is not exclusive to human rights, since the situation just
described and the qualification given to it are well accepted in the law of the sea.
What is proper to human rights, however, is that it is now the established rule
that both forms of jurisdiction trigger their applicability.24
In the second place, the evaluation of whether jurisdiction exists according
to the law should not be confused with the evaluation of the modalities through
which it is exercised. Lawful jurisdiction may be in fact exercise in violation of
rules of international or national law. For example, if a State arrests a vessel
fishing illegally in its exclusive economic zone and its courts impose penalties
22Ibid., Articles 220(2) and 19(2)(h).
23The two are clearly distinguished by the European Court of Human Rights in dealing with
the Al-Saadoon case; Al-Saadoon and Mufdhi v. United Kingdom, application n. 61498/08,
admissibility decision, 30 June 2009 (Al-Saadoon decision), paragraphs 8788.
24Following a period of uncertainty due to contradictory pronouncements, recent decisions have settled the issue. See the decision of the European Court of Human Rights
in the Al-Saadoon case, paragraph 88 and Al-Skeini and others v. the United Kingdom,
application no. 55721/07, Judgment of 7 July 2011, paragraph 136. For a different perspective see Marko Milanovic, Extraterritorial Application of Human Rights Treaties
(Oxford: Oxford University Press, 2011), 53.
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on the owner and master, it is exercising its lawful jurisdiction according to Article73. If however the arrest is conducted using excessive force, then there is a
breach of the rules concerning use of force in enforcement action.25 In the same
way, if the penalties decided by the national court include corporal punishment,
then the exercise of jurisdiction is unlawful, not because the State does not have
the power to enforce its fishing laws, but because of the modalities adopted to do
so, which are in violation of Article 73(3). The opposite may also be true, since
there can be instances in which enforcement, for example an arrest, is effected in
conformity with legal requirements but without having de iure jurisdiction. In the
Medvedyev case a Chamber of the European Court of Human Rights was called
to evaluate the arrest, operated by the French armed forces on the high seas, of
a Cambodian vessel carrying drugs. On the basis of the consideration that France
had not obtained the previous consent of Cambodia, the Chamber, rightly, concluded that the arrest was not in conformity with international law.26 However,
when called to evaluate the modalities of the arrest, the Chamber considered that
actions by the French forces were in conformity with requirements under human
rights and other applicable rules.
Determining the State That Has Jurisdiction over Persons at Sea
Having settled on determining which State has jurisdiction over a person that is at
sea, the first and obvious place to look for rules would be the LOSC, the treaty that
has codified and developed the law of the sea. The scholar that would engage in
the perusal of the Convention, however, might be disappointed, as there is not any
general principle and there are very few specific rules addressing the jurisdiction of
a State over persons at sea.27 More precise indications can be found in other treaties
addressing fishing, activities that threaten navigation and maritime labour.
25International Tribunal of the Law of the Sea, The M/V Saiga (No.2) Case (St Vincent
and the Grenadines v Guinea), Judgement 1 July, 1999, paragraph 155.
26Medvedyev and Others v. France, application n. 3394/03, Judgment of 10 July
2008 (Medvedyev Judgment), paragraph 62. The decision was confirmed by the Grand
Chamber of the Court, though on different grounds; Medvedyev and Others v. France,
Application no. 3394/03, Judgement (Grand Chamber) of 29 March 2010, paragraph
102.
27It is however noteworthy the effort by a few authors to identify LOSC provisions that
are of interest to persons, in that they seek to protect their rights or interests; see in
particular Bernard H. Oxman, Human Rights and the United Nations Convention on
the Law of the Sea, in Louis Henkin, Jonathon I. Charney, Donald K. Anton and Mary E.
OConnell (eds.), Politics, Values and Functions: International Law in the 21st Century
(The Hague: Martinus Nijhoff Publishers, 1997), 377404.
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395
Legal rules that allocate jurisdiction may do so in three different ways. In the
first place, a rule may expressly attribute jurisdiction to a specific State over a
specific person or over a specific group of persons. In the second place, the rule,
while not specifically mentioning the person, attributes jurisdiction to a State
over the ship or structure where the persons find themselves. In the third place,
the rule attributes jurisdiction to the State to regulate a specific activity which
involves a person.
This partition is as arbitrary as any other and is adopted for the sake of clarity of exposition and convenience, with a view towards rationalising the illustration of the many rules and facilitating the task of the scholar or lawyer called to
assess the existence of jurisdiction over a person. Indeed, the first category is at
the same time the smaller one and the most readily ascertainable and should
be the starting point for anyone interested in verifying if a State has jurisdiction
over a person. Only if this does not provide any such rule then can other rules be
resorted to. If, however, the task is to determine all States having jurisdiction over
a person, then all categories of norms will have to be examined, since jurisdiction
in the sea is rarely exclusive and more often than not it contemplates exceptions
to exclusivity and jurisdiction by more than one State, in order to try and ensure
compliance with international rules and effectivity.
Therefore, these three criteria are not mutually exclusive. A rule may attribute
jurisdiction over a person only with respect to a certain subject matter, as in the
case of pirates. The division in three categories does not either necessarily mean
that the jurisdiction exercised by the State in each case is qualitatively different
or that the principle on the basis of which it is attributed differs in each case. In
all three cases, the rule may attribute only legislative or enforcement jurisdiction,
or both, and jurisdiction may be based on the territorial, nationality or other
principle.
Jurisdiction over a Person
In some cases, the relevant provision of the LOSC or of another treaty directly
and expressly establishes that a State has jurisdiction over a person. This can
be done expressly, by mentioning the word jurisdiction, as in the case of
Article 94(2)(b) LOSC, which requires the flag State to,
assume jurisdiction under its internal law over each ship flying its flag and its master,
officers and crew in respect of administrative, technical and social matters concerning
the ship (emphasis added).
More often, the norm refers to the activity that displays the exercise of jurisdiction, authorising the State to adopt laws and regulations, arrest or conduct
investigations. Thus Article 27 LOSC, on the exercise of enforcement jurisdiction
by the coastal State on board foreign ships exercising the right of innocent passage through its territorial sea:
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The criminal jurisdiction of the coastal State should not be exercised on board a
foreign ship passing through the territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on board the ship during its
passage, save only in the following cases: (emphasis added).
The right to arrest and conduct investigations stems directly from enforcement
jurisdiction. Similarly, Article 105 LOSC on the exercise of jurisdiction with
respect to piracy, provides again expressly that any State may arrest the persons
and seize the property on board a pirate ship (emphasis added). In both cases,
the rules make it clear that the State mentioned in them has the right to exercise
enforcement jurisdiction.
The rule establishing jurisdiction of a State over a person may provide detailed
indication about the type and content of the States powers. In the first place,
it may qualify the power of the State with reference to the person (ratione
personae), allowing it to exercise its jurisdiction only with respect to a person or
group of persons identified on the basis of common characteristics. The master
of a vessel and its crew are among the persons that are most often identified.28
For example, Article 97(1) LOSC establishes the States having jurisdiction over the
master or any other person in the service of the ship with respect to penal and
disciplinary aspects of collisions or other incidents of navigation;29 Article 105
LOSC refers to enforcement jurisdiction over pirates; and, Article 62(4) permits
States to exercise legislative jurisdiction binding all fishers that operate in the
exclusive economic zone. Any person falling outside the group will therefore not
be subject to the States power envisaged by that provision. In practice however,
there are cases in which the groups are loosely defined and difficulties may arise
when determining which persons are included and which are not.30
The principle constituting the basis for the attribution of jurisdiction over the
person also varies. In some cases, it is nationality of the person. Nationality has a
major role, among others, in rules on the protection and preservation of marine
living resources on the high seas. Thus, for example, Article 117 LOSC requires
the State to:
take, or to cooperate with other States in taking, such measures for their respective
nationals as may be necessary for the conservation of the living resources of the high
seas (emphasis added).31
28For example, LOSC, Article 94(2)(g).
29Other cases include LOSC, Article 97 and Article 109(3)(c).
30An example is provided by the case of persons engaged in bunkering activities for
fishing vessels in the exclusive economic zone of a third State. Are these persons to
be equated to fishers, and therefore subject to enforcement jurisdiction according
to LOSC, Article 73(1) but also able to avail themselves of the prompt release procedure provided by LOSC, Article 73(2) and the safeguards of LOSC, Article 73(3), or not?
The issue, referred to by the parties during the M/V Saiga case, was not decided by the
ITLOS.
31 Similarly LOSC, Article 139.
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397
Similar provisions are included in Article 7 of the United Nations Agreement for
the Implementation of the Provisions of the United Nations Convention on the Law
of the Sea of 10 December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks (FSA),32 and are contained
in regional fisheries agreements.33 Nationality, of both physical and juridical
persons, is also at the basis of the regime applicable to activities of exploitation
and exploration of the resources of the International Seabed Area (Area), in particular concerning liability and compensation, provided for in Article 139 LOSC,
and adjudicative jurisdiction, provided for by Article 235(2) LOSC. The former
provision attributes jurisdiction to the State not only with respect to natural or
juridical persons directly engaged in activities in the Area, but also to its nationals
effectively controlling companies engaged in the activities mentioned.34 Nationality of the offender is also relevant to assert jurisdiction over persons committing
certain illegal activities and crimes, as in the case of unauthorized broadcasting,35
offences relating to illegal traffic in narcotic drugs and psychotropic substances36
and offences against the safety of maritime navigation.37
In other cases, jurisdiction is based upon the nationality of the vessel on which
the person is working or is located, as in the case of flag State jurisdiction over the
master and crew provided by Article 94 LOSC. In still other cases, the basis is
the territorial principle, as in the case of criminal jurisdiction over persons on
board a ship in territorial waters of a State, according to Article 27 LOSC.
The provision may specify whether the jurisdiction is legislative, enforcement
or judicial and may pose conditions and limits to its exercise. In particular, a
32United Nations Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 August 1995, in force 11 December 2001, 2167 UNTS 3.
33For example, Articles X(1)(g) and (h) of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, opened for signature 24 October 1978, in force
1 January 1979 (as amended in 2008), 1135 UNTS 3697.
34See further the provisions of Annex III, LOSC, Article 4(4) and the clarifications and
guidelines furnished by the Seabed Disputes Chamber of the International Tribunal
for the Law of the Sea in the case concerning Responsibilities and obligations of States
sponsoring persons and entities with respect to activities in the Area, case no. 17, Advisory
Opinion of 1 February 2011, in particular paragraph. 218.
35LOSC, Articles 109(3)(c) and (4).
36Article 4(1)(i), United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, opened for signature 20 December 1988, in force 11 November
1990, 1582 UNTS 165. As Article 17 makes clear, the jurisdiction of the State of nationality does not include the right to enforce its legislation against its nationals in the high
seas (and allegedly in areas subject to the jurisdiction of other States), if on board a
vessel flying the flag of another State.
37Article 6(1)(c) of the Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation, opened for signature March 10, 1988, entered into force March1,
1992, 1678 UNTS 221.
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legal rule may establish that the jurisdiction of a State over a person has a limited scope. Whereas the enforcement jurisdiction attributed by Article 27(1) LOSC
concerns any criminal act, as long as it sorts the effects described in letters (a),
(b) and (c), the legislative jurisdiction provided for by Article 6 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(SUA Convention) concerns only the specific crimes described in its Articles 3,
3bis, 3ter, 3quater. Similarly, Article 105 LOSC contains one of the rare instances
in which adjudicative jurisdiction with respect to a specific crime (piracy) is
expressly mentioned, as it provides that:
The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to
the ships, aircraft or property, subject to the rights of third parties acting in good
faith.
From the point of view of determining jurisdiction, the cases just described
are the simplest ones. The person is subject to the jurisdiction of the State if and
to the extent that the norm so provides. If jurisdiction is general, then it is correct to presume that its exercise may concern any issue. If it is functional, it can
be exercised only within the limits and subject to the conditions provided for by
the relevant rule. There may be some doubts when the rule does not specify the
type of jurisdictionlegislative, enforcement or judicialto be exercised.
Jurisdiction over the Vessel or Structure on Which the Person is Located
Provisions of the type just described are however rare. It is more common to
encounter provisions that do not directly establish the jurisdiction of a State over
a person, but determine that a State will have jurisdiction over the ship or structure on which the person is located.
The two most evident cases concern the jurisdiction of the flag State over ships
flying its flag and that of the coastal State over artificial islands, installations and
structures in its exclusive economic zone. According to a well-established rule
of customary international law, every vessel is subject to the jurisdiction if its
flag State,38 which becomes exclusive on the high seas, with the few exceptions
provided by custom or treaty.39 Although this is not expressly stated in the LOSC,
the flag States jurisdiction extends also to the persons on board the ship. As the
International Tribunal for the Law of the Sea (ITLOS) has noted
the ship, everything on it, and every person involved or interested in its operations
are treated as an entity linked to the flag State.40
38LOSC, Article 94.
39Ibid., Article 92.
40M/V Saiga case, paragraph 106.
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399
It is worth noting that this has been recognised not only by judges routinely dealing with the law of the sea, but also by international tribunals dealing with other
fields of international law. Thus, for example, the European Court of Human
Rights has noted that the jurisdiction of a State extends also to,
cases involving the activities of its diplomatic or consular agents abroad and on board
craft and vessels registered in, or flying the flag of, that State.41
Although the link between the flag State and the vessel is often described in
terms of nationality, as in Article 91 LOSC, the jurisdiction exercised in this case
is qualitatively different from jurisdiction over nationals and sometimes may be
described better in territorial terms.42
If the jurisdiction of the flag State is sui generis, the exclusive jurisdiction of
the coastal State over artificial islands, installations and structures in its exclusive
economic zone and on its continental shelf, provided under Articles 60 and 80,
respectively, reposes on the territorial principle. As for vessels, in this case also
jurisdiction extends to the persons on board the platform or other structure. For
example, Article 60(2) on structures in a States exclusive economic zone prescribes that:
The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health,
safety and immigration laws and regulations. (emphasis added)
Notably, the jurisdiction of the coastal State over the platform includes both
legislative and enforcement jurisdiction, and is exclusive. The exclusivity of
enforcement jurisdiction in this case is maintained by the 2005 Protocol for the
Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on
the Continental Shelf.43
In cases other than those described above, a State may be attributed only limitedfunctionaljurisdiction with respect to vessels. In these cases, it seems
logical to conclude that the jurisdiction of the State over persons on board the
vessel follows the same limitations. For example, in the exclusive economic zone,
41 Bankovi and Others v. Belgium and 16 Other Contracting States, application n. 52207/99,
decision (Grand Chamber) of 12 December 2001, paragraph. 73. See also the decision by
the Inter-American Commission of Human Rights on the merits of case 10.675, Report
N 51/96 (the Haitian Centre for Human Rights case).
42The International Law Commission has made the distinction in its commentary on
Article 18 of the Draft Articles on Diplomatic Protection, concerning protection of
ships crews. See, Yearbook of the International Law Commission, 2006, Volume II, Part
Two, Commentary to Article 18, paragraph. 8.
432005 Protocol to the 1988 Convention for the Suppression of Unlawful Acts Against the
Safety of Fixed Platforms Located on the Continental Shelf, opened for signature October
14, 2005, entered into force July 28, 2010, IMO Doc LEG/CONF. 15/22; Natalie Klein,
Maritime Security and the Law of the Sea (Oxford: Oxford University Press, 2011), 103.
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the coastal State will have jurisdiction over the persons on board the vessel in so
far as it has jurisdiction over the vessel itself.
A different case concerns the exercise of jurisdiction under the port State control system. In principle, jurisdiction in this case stems from the sovereignty of
the State over its land territory, of which the port is a part, and may therefore
concern any issue. In reality, due to practical reasons, the jurisdiction of the port
State has not often been exercised. In recent years, however, a growing number
of treaty provisions require the port State to effectively exercise its authority to
enforce legislation concerning not only activities that take place in its territory or
maritime zones, but also those that have taken place on the high seas and, under
some conditions, in the maritime zones of other States.
Notably, recent treaties have significantly extended the jurisdiction of the port
State, which now includes not only safety and environmental protection matters,
but also conservation of resources44 and the protection of seafarers rights.45 In all
these cases, jurisdiction may also be exercised on the persons that are connected
with the vessel. For example, the enforcement jurisdiction of the port State with
respect to pollution,46 or with respect to seaworthiness of vessels in its ports,47
may be also exercised upon persons on board the vessel, but only within the
limits provided by the relevant provisions. The basis for the exercise of power
can however be unclear, since it would seem that it is not so much based on the
flag of the vessel, but rather on the territorial principle. It would therefore seem
possible that a State adopts legislation applicable to persons on board any ship
going beyond what is provided under the port State control regime, and this legislation could be enforced in favour or against the person in question, not because
this person is part of the crew of a ship visiting a port of the State, but because this
person is present on the territory of the State.48
Jurisdiction Based on Other Rules
The fact that often the LOSC and other law of the sea treaties mention scantly
persons, makes it necessary to turn to the general principles on jurisdiction in
order to individuate the State that may or must exercise jurisdiction over a person. The rules referred to could be divided into three main groups. The first group
44For example, under the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, opened for signature 22 November
2009, not yet in force.
45For example, the Maritime Labour Convention, opened for signature 23 February 2006,
not yet in force.
46LOSC, Article 218.
47Ibid., Article 219.
48Robin R. Churchill and Alan Vaughan Lowe, The Law of the Sea (Manchester: Manchester University Press, 1999), 68. For a different point of view Klein, Maritime Security, 6973.
a missing part of the law of the sea convention
401
comprises those relating to jurisdiction over the vessel or structure on which the
person is located, and have been considered in the previous paragraph.
The second category includes those rules widely known and accepted under
the law of the sea that distribute jurisdiction between the flag State, coastal State
and port State.49 It is indeed logical to consider that if a State has jurisdiction to
regulate a specific activity, then it also has jurisdiction over the person conducting or involved in the activity. For example, in its territorial sea the coastal State
may exercise enforcement jurisdiction to prevent passage which is not innocent.50
Since the loading or unloading of a person contrary to the coastal States laws renders passage non-innocent and therefore triggers the applicability of Article25
LOSC, the coastal State will be able to enforce its legislation not only with respect
to the vessel, its master and its crew, but also with respect to any person involved
in the activity.
This is equally true for the exercise by the coastal State of the rights provided
for in Article 33 in the contiguous zone. Even though there is no mention of
persons, or even ships, it is evident that the coastal State may adopt enforcement
action to prevent or punish infringement of its customs, fiscal, immigration or
sanitary laws and regulations with respect not only to vessels, but also to persons,
be they on the vessel, on another structure or in the water. Likewise, the jurisdiction attributed to the coastal State with respect to exploitation of resources or the
protection of the marine environment in its exclusive economic zone includes
measures adopted with respect to persons engaging in these activities. There is
no doubt therefore that enforcement measures envisaged by Article 73(1) LOSC
apply not only to vessels, but also to the persons on board the vessel, as results
from the reference to the crew of captured vessels in Article 73(2) LOSC. Nor is
this power contested by States. On the contrary, this rule is so well-established,
that also tribunals dealing with human rights have had recourse to this notion
without any difficulty.51
Since jurisdiction over the activity is functional to the protection or furtherance of a specific interest of the State, it follows that its exercise over the person
49These rules are illustrated and discussed in Gavouneli, Functional Jurisdiction. See also
Dolliver Nelson, Maritime Jurisdiction, in Rdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012).
50LOSC, Article 25.
51 In the Drieman Case, the European Court of Human Rights has considered that
the conviction and other measures adopted by Norway against members of a nongovernmental organisation interfering with whaling in the Norwegian exclusive economic zone were all measures which the respondent State had taken in the exercise
of its jurisdiction in the sense of Article 1 of the Convention, and thus were capable of
engaging its responsibility under the Convention and that the measures taken against
the applicants conduct in obstructing whaling could reasonably be viewed as having
been taken for the prevention of disorder or crime or for the protection of the rights
and freedoms of others (Drieman and Others v. Norway, application n. 33678/96, decision of 4 May 2000).
402
irini papanicolopulu
should be subject to the same conditions and limitation that are provided with
respect to regulation of the activity.
Limitations to the Exercise of Jurisdiction
Rules examined so far allow or mandate the exercise of jurisdiction. There are
also cases in which a norm may make it clear that a State cannot exercise jurisdiction over a person. This is usually achieved by expressly stating that only one,
or a specific number of States, have jurisdiction. On the basis of Article 97(1)
LOSC on criminal jurisdiction in matters of collision between vessels, there is
no doubt that no State can exercise jurisdiction over the master and crew of the
vessel involved in the incident, apart from the State of the flag and the State
of nationality. Similarly, on the basis of Article 92 LOSC, only the flag State has
jurisdiction on vessels flying its flag on the high seas; therefore, all other States
are prevented from exercising jurisdiction. Limitations may be accompanied by
exceptions. Taking as an example flag State jurisdiction, its exclusivity on the
high seas is restrained by the norms that allow, among others, every State to
exercise enforcement jurisdiction over pirates52 or that allow every State to visit
a ship that is engaged in the slave trade.53
Cases Not Regulated
Finally, there are cases in which the LOSC or other provisions of international law
do not conatin any indation as to the State that can exercise jurisdiction over a
person anything. For example, there is no indication of whether a State can exercise its jurisdiction over persons which are on platform on the high seas, or over
persons on board vessels without a flag. The former instance is not even mentioned in the LOSC. In some cases, it is possible to determine which State has by
applying the general rules of jurisdiction illustrated above. For example, the State
of nationality of the persons on board will have jurisdiction if the platform is used
for fishing,54 while the State of nationality of the persons on board or of the person owning it or controlling the company that owns it will have jurisdiction if the
platform is used to explore mineral resources of the Area.55 Other activities may
however still remain outside these rules, for example if the platform is used to
temporarily host persons being smuggled, or to store weapons or drugs trafficked
illegally. With respect to the latter case, when a person is on board a flagless vessel, although Article 110 provides the possibility to visit a vessel without flag, it
52LOSC, Article 105.
53Ibid., Article 110(1)(b).
54Ibid., Article 117.
55Ibid., Article 139.
a missing part of the law of the sea convention
403
does not provide any independent basis for the exercise of jurisdiction over the
vessel or over the persons on board, other than those already provided by other
rules of the LOSC, such as nationality of the vessel or piracy.
In order to have a State that may control activities and may ensure that they
do not hinder the exercise of rights by other States and that they comply with
international rules, including those on human rights, it would seem admissible
that in those cases, and until generally accepted rights and obligations under
international law come into existence, a State may exercise its jurisdiction based
on the nationality, the universality, the passive personality or another appropriate principle. For example, there is no doubt that a State can legislate and can
enforce its laws and regulations with respect to platforms used by its nationals, be
they physical or juridical persons. It could also be considered as a non-exorbitant
form of jurisdiction the exercise by a State of criminal jurisdiction in the case that
the victim of an illegal act committed by one of the persons on the platform has
as its victim a national of that State. Universality, possibly in the qualified form
of comprising the aut dedere aut iudicare principle, could operate to prevent and
punish conduct that is condemned under global treaties, such as the slave trade
and human trafficking, threat to the safety and security, pollution of the marine
environment or inhuman working and living conditions.
A different problem is posed by Article 113 LOSC, which imposes a duty on every
State to establish as a punishable offence damage caused to submarine cables
and pipelines located beneath the high seas, if the injury or damage inflicted is
caused by a person subject to its jurisdiction.56 However, the provision does not
specify how the jurisdiction over the person is to be determined, nor is there any
indication in other rules of the LOSC.57 We therefore have a direct reference to
jurisdiction by a State over a person, without however any indication as to what
this State is. In this case, it will be necessary to check national legislation in order
to determine whether a specific personwho in this case could be a juridical, as
well as a physical, personis subject to the jurisdiction of the State.58
56Similarly, LOSC, Article 114 provides for the duty of every State to arrange that the owners of a cable or pipeline, if they are persons subject to its jurisdiction, who damage
another cable or pipeline, shall bear the costs for the repair.
57The reason may be historic. The content of Article 113 was taken from Article 27 of the
Convention on the High Seas, opened for signature 29 April 1958, in force 30 September
1962, 450 UNTS 11, in its turn proposed by the International Law Commission based on
the text of Article 2 of the Convention for the Protection of Submarine Telegraph Cables,
opened for signature 14 March 1884. The 1884 Convention went on to determine, in
Article 8, the States having jurisdiction to adjudicate. The latter provisions were not
included in successive codification of the rules in the 1958 Geneva Convention or the
LOSC; Myron H. Nordquist, United Nations Convention on the Law of the Sea, 1982: A
Commentary, Volume III (Dordrecht: Martinus Nijhoff Publishers, 1995), 267.
58Section 12(3)(f) of the General Civil Penal Code of Norway provides that Norwegian laws applies with respect to acts envisaged by Article 113 LOSC on the basis of
404
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Conclusions
Despite the fact that there is no general principle to this effect in the LOSC, it
is usually possible to identify the State or States that have jurisdiction over a
person at sea. In some instances the issue is directly addressed by provisions in
the LOSC or other treaties, though in most cases the relevant State will be identified through the application of law of the sea rules allocating powers between
States with respect to zones and activities at sea, or having recourse to basic
principles governing jurisdiction of States under international law. All these rules
and principles, taken together and enumerated in an orderly manner, could make
up the introductory part of a hypothetical new part of the LOSC: one dedicated
to persons.
While there is no general principle in this matter, there are some typical
instances in which a State has jurisdiction on persons at sea. In particular, it would
seem that there are two different modalities for the attribution of jurisdiction.
In the first case, jurisdiction is general and concerns all matters. This jurisdiction may be based on the territorial principle, as in the case of persons in the
territorial sea of a State or on platforms or other structures in its exclusive economic zone or on its continental shelf, or on the flag State principle, in the case
of persons on board a vessel flying the flag of a State. In both cases, the State may
regulate and enforce laws relating to any aspect, be it linked with the vessel and
its navigation or other uses of the sea, or not. Exceptions to this general jurisdiction cannot be presumed, but will have to be proven on a case by case basis. In
other words, the person that wants to challenge the exercise of jurisdiction will
have to point to the rule containing the exception.
In the second case, jurisdiction is limited and functional. This is the case
in which a State other than that having the general competence is attributed
jurisdiction for specific matters. Examples include the jurisdiction over nationals fishing or exploring mineral resources in areas beyond national jurisdiction.
This category is expanding, as more and more treaties attribute jurisdiction for
specific matters to States other than the flag State of a vessel. In these cases, the
burden of proof is inverted. It is the State wanting to control the person that will
have to indicate the rule that allows it to exercise its legislative, enforcement or
judicial jurisdiction with respect to the person. In the absence of such a rule a
display of power will be unlawful.
the nationality/residence principle; text available at http://www.un.org/Depts/los/
LEGISLATIONANDTREATIES/PDFFILES/NOR_penal_code.pdf
PART five
PUSHING THE LIMITS OF OCEANS GOVERNANCE
ENVIRONMENTAL AND MARINE LIVING RESOURCE CONCERNS
Chapter eighteen
Distributing a Conservation Burden across Multiple
Jurisdictions: A Case Study of the Western and
Central Pacific Tuna Fisheries
Quentin Hanich*
Introduction
The Western and Central Pacific Ocean (WCPO) stretches approximately 6,000
nautical miles across numerous jurisdictions, from the archipelagos of Southeast Asia to the remote atolls of Kiribati in the Central Pacific. This vast ocean
is home to the worlds most productive tuna fisheries, supplying global markets
with skipjack, bigeye, yellowfin and albacore worth approximately US$4.6 billion
annually.1 These fisheries are critically different from other tuna fisheries in that
87 per cent of all reported WCPO tuna catches are harvested from waters under
national jurisdiction.2 Unlike the high seas tuna fisheries of the Eastern Pacific,
Indian Ocean and North Atlantic, the WCPO tuna fisheries are predominantly
subject to the sovereign rights of coastal States and therefore essentially owned
by a small group of developing coastal States.
In December 2004, the region came together and celebrated the establishment
of the Western and Central Pacific Fisheries Commission (WCPFC) in Pohnpei,
Federated States of Micronesia. All of the key coastal and distant water fishing
States collaborated to establish the worlds most advanced regional fisheries management organisation with a mandate to ensure the long-term conservation and
sustainable use of the WCPO tropical tuna fisheries.
Eight years later, the members of the WCPFC are now at a critical juncture.
In order to fulfil their mandate and ensure the long-term conservation and sustainable use of the WCPO tropical tuna fisheries, they must cooperate to reduce
overfishing in complex fisheries that catch multiple species, utilise multiple gears
and span multiple jurisdictions.
*Senior Research Fellow, Australian National Centre for Ocean Resources and Security
(ANCORS), University of Wollongong, Australia.
1 Average delivered value 2008 to 2010. Derived from Peter Terawasi and Len Rodwell,
Value of WCPO Tuna Fisheries (Excel database) (Honiara, Solomon Islands: FFA, 2011).
2Derived from Terawasi and Rodwell. Value of WCPO Tuna Fisheries (Excel database).
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The Nature of the Challenge
It is critically important that the WCPO tuna fisheries are managed effectively
throughout their range and across all jurisdictionswithin and between exclusive economic zones (EEZs) and on the high seas. Tuna are distributed throughout the tropical and subtropical waters of the Pacific Ocean and migrate across
numerous international boundaries. Consequently, they require international
cooperation to ensure effective management across multiple jurisdictions. Unrestrained exploitation in a particular EEZ or on the high seas has the potential to
significantly affect catches elsewhere with potentially devastating consequences
for developing coastal States, some of which have few alternate resources.
The intermeshed characteristics of the WCPO tuna fisheries make it difficult
for the WCPFC to reduce overfishing of bigeye without significantly impacting
on fishing activities for skipjack. For example, purse-seiners primarily target skipjack, and to a lesser degree yellowfin, but also catch bigeye incidentally. While the
incidental catch of bigeye by purse-seine fleets accounts for a very small percentage (1 to 3 per cent) of the total purse-seine catch, it nevertheless has a significant
impact on bigeye stocks due to the sheer size of this catch.
For the WCPFC to resolve the threat to bigeye, it must restrict the operation
of purse-seine vessels that are targeting highly productive skipjack that are not
currently threatened by overfishing. However, purse-seine fleets will receive
little or no long-term sustainability benefit or increase in profitability if bigeye stocks rebuild. Longline fleets will directly benefit from conservation measures that rebuild bigeye stocks as this will increase the profitability of longline
fleets through improvements to their catch per unit of effort (CPUE).
This creates an inherently difficult and challenging problem to solve as ultimately the members of the WCPFC have little choice but to develop, negotiate
and implement conservation and management measures that impact on multiple
jurisdictions and affect a diverse range of interests. Such conservation and management measures implicitly allocate a conservation burden on participants in
the WCPO fisheries. Depending upon its structure, the conservation and management measure will impact directly and indirectly on various participants:
reducing benefits for some; limiting opportunities for others; and protecting or
potentially even increasing benefits for some participants.
To further complicate matters, conservation and management measures may
impact on developing States that depend significantly on these fisheries and
have strong aspirations to further develop their benefits. Some of these States
will have few other development and resource options and will be more heavily
impacted by the conservation burden than other States with diverse resources,
large institutions and substantial revenue streams from multiple economic activities. Consequently, the question of how the conservation burden is distributed is
fundamental to conservation and management negotiations.
a case study of western and central pacific tuna fisheries
409
This chapter studies the mix of interests in the WCPO tropical tuna fisheries
in order to better understand how these interests might influence the WCPFCs
ability to adopt conservation measures that will apply a conservation burden
across multiple jurisdictions. These interests influence each delegations position
on whether to support or oppose certain measures depending upon how they
impact on that States various interests.
For the purposes of this analysis, the WCPO tropical tuna fisheries are defined
as all fisheries in the WCPO that catch skipjack (Katsuwonus pelamis), bigeye
(Thunnus obesus) or yellowfin (Thunnus albacares), regardless of whether the
species is targeted or taken incidentally. The analysis studies interests that
are directly relevant to potential conservation and management measures. These
include the interests and influences that each participating State has in particular species (bigeye, yellowfin and skipjack) and particular gears (purse-seine,
longline), and more broadly, interests and influences related to access to fishing
grounds; fishing vessels; food security; development aspirations; and markets.
The study analyses all reported catches from within the WCPFC Statistical Area
(the perceived range of the stocks) and is based on the most recent data that were
available at the time of the study. Data are sourced from the 2011 WCPFC Yearbook Excel database,3 the Value of WCPO Tuna Fisheries Excel database4 and
the WCPFC overview paper on the WCPO tuna fisheries.5 This covers 200810
catches that were first published in 2011. Unless otherwise indicated, all subsequent figures were developed by the author using these databases.
The interests identified in the following analysis do not necessarily reflect the
overall national interest of a State. Many of the identified States will have multiple and diverse interests. While one consideration below might suggest that a
State will oppose any conservation measure that negatively impacts its interests,
another consideration might suggest otherwise. Such States will need to balance
their interests when considering potential management responses. This chapter
does not pretend to determine the individual national interest for each State.
Rather, the chapter identifies some interests that may impact on, and complicate,
the negotiation, adoption and implementation of conservation and management
measures across multiple jurisdictions.
3Peter Williams, Tuna Fishery Yearbook: Western and Central Pacific Fisheries Commission
(raw Excel database) (Pohnpei, Federated States of Micronesia: SPC, 2011).
4Terawasi and Rodwell. Value of WCPO Tuna Fisheries (Excel database).
5Peter Williams and Peter Terawasi, Overview of Tuna Fisheries in the Western and Central Pacific Ocean, Including Economic Conditions in 2010, paper delivered at Seventh
Regular Session of the Scientific Committee of the Commission for the Conservation
and Management of Highly Migratory Fish Stocks in the Western and Central Pacific,
WCPFC, Pohnpei, Federated States of Micronesia, 917 August 2011.
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The WCPO Tuna Fisheries
Catches in the WCPO tuna fisheries have increased since the WCPFCs founding
Convention was adopted in 2000,6 with record catches for each of the tropical
tuna species in recent years. The record catch for skipjack was 1,821,770 metric
tonnes (mt) in 2009, while the 2008 catches of yellowfin and bigeye were the
highest on record (541,262 and 157,173 mt, respectively).7
Three types of fisheries are primarily responsible for most commercial catches
of WCPO tuna. Purse-seine is by far the most significant, with catches of approximately 1,820,844 mt in 2010. Longline fisheries caught 239,853 mt and pole and
line caught 171,604 mt. Various other gears caught 143,829 mt (largely various
fleets in Indonesia and the Philippines, with some small troll catches in New
Zealand and Japan).8
In 2011, the stock assessment for skipjack concluded that overfishing was not
occurring, nor was the stock in an overfished state.9 However, the WCPFC Scientific Committee advised that catch rates will decline as the skipjack stock is
fished down to levels near the biomass capable of producing the maximum sustainable yield. The Scientific Committee recommended that the WCPFC consider
developing restrictions on fishing for skipjack to limit declines in catch rates.10
Such declines would likely impact on the economic efficiency of the fishery and
its profitability. The assessments noted that the use of fish aggregating devices
(FADs) and rapid changes in technology and catchability complicated efforts to
define units of effort and better understand the fishery.11 In addition, there are
questions about whether the current use of FADs undermines the potential yield
6The
founding convention for the WCPFC is the Convention on the Conservation and
Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean,
opened for signature 5 September 2000, entered into force 19 June 2004 (WCPF Convention), www.wcpfc.int.
7Data sourced from Terawasi and Rodwell, Value of WCPO Tuna Fisheries (Excel
database).
8Ibid.
9Simon Hoyle, Pierre Kleiber, Nick Davies, Adam Langley and John Hampton, Stock
Assessment of Skipjack Tuna in the Western and Central Pacific Ocean, paper
delivered at Seventh Regular Session of the Scientific Committee to the Western and
Central Pacific Fisheries Commission, WCPFC, Pohnpei, Federated States of Micronesia. 917 August 2011.
10WCPFC, Report of the Seventh Regular Session of the Scientific Committee of the Western and Central Pacific Fisheries Commission, Pohnpei, Federated States of Micronesia,
917 August 2011.
11 Hoyle, Kleiber, Davies, Langley and Hampton, Stock Assessment of Skipjack Tuna in the
Western and Central Pacific Ocean.
a case study of western and central pacific tuna fisheries
411
of the stock due to the higher catches of small skipjack and concerns that the
use of FADs may negatively affect the health and distribution of skipjack.12
At the same time, the WCPFC Scientific Committee advised that yellowfin
stocks are fully exploited and recommended against increases in fishing mortality.
They indicated that Philippine and Indonesian surface fisheries have high levels
of juvenile fishing mortality and that these fisheries, and purse-seine fishing on
FADs, have the highest impact on yellowfin stocks, while purse-seine fishing
on free-swimming schools has a moderate impact. These fisheries are having high
impacts in the western equatorial region and, more generally, across the WCPO.
The assessment also noted that Japanese coastal pole-and-line and purse-seine
fisheries have a significant impact on biomass levels in their home region.13 Significantly, the Scientific Committee advised that high catches of juvenile yellowfin were reducing the potential yield of the yellowfin stock. Consequently, the
Committee concluded that reductions in fishing mortality of juvenile yellowfin
would increase potential fishing levels and the profitability of the fishery.14
The bigeye fishery is targeted almost entirely by longline vessels. However, the
use of FADs by the purse-seine fishery has resulted in significant catches of juvenile bigeye. Stock assessments for bigeye have been conducted and reviewed
by the WCPFC Scientific Committee almost every year since its establishment.
These assessments have consistently raised concerns over the levels of fishing
mortality on bigeye. Each assessment has indicated that overfishing on bigeye
was occurring, and each Scientific Committee recommended that fishing mortality be reduced. The 2011 assessment for bigeye indicated a change from previous
assessments and noted that purse-seine fisheries and other surface fisheries now
have an equal or greater impact on the overall bigeye stock than longline fisheries. This shift from longline as the dominant impact to purse-seine reflects the
significant increases in purse-seine effort in recent years. Purse-seine fisheries and
the Philippine and Indonesian domestic fisheries have a substantial impact in the
western equatorial and, to a lesser extent, the eastern equatorial Pacific regions.
The assessment also noted that Japanese coastal pole-and-line and purse-seine
fisheries have a significant impact on biomass levels in their home region.15
12Jean-Pierre Hallier and Daniel Gaertner, Drifting Fish Aggregation Devices Could Act
as an Ecological Trap for Tropical Tuna Species, Marine Ecology Progress Series, 353
(2008): 255264.
13Adam Langley, Simon Hoyle, and John Hampton, Stock Assessment of Yellowfin Tuna
in the Western and Central Pacific Ocean, paper delivered at Seventh Regular Session
of the Scientific Committee of the Commission for the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific, WCPFC, Pohnpei, Federated States of Micronesia, 917 August 2011.
14Ibid.
15Nick Davies, Simon Hoyle, Shelton Harley, Adam Langley, Pierre Kleiber and John Hampton, Stock Assessment of Bigeye Tuna in the Western and Central Pacific Ocean, paper
delivered at Seventh Regular Session of the Scientific Committee of the Commission for
412
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In summary, the scientific assessments suggest that bigeye stocks are experiencing overfishing and may be overfished, and that high levels of catches of juvenile bigeye were undermining the productivity of the fishery, and its profitability.
The assessments indicate that serious reductions are required across all gears,
particularly in the surface and purse-seine fisheries.16 Consequently, the Scientific Committee concluded that reductions in fishing mortality of juvenile bigeye
would increase potential fishing levels and the profitability of the fishery.17
The WCPO tuna fisheries also impact more broadly on the WCPO oceanic
ecosystem. There is considerable concern regarding these impacts, particularly
in regard to associated and dependent species. Some non-target species of fish
and shark are captured incidentally and retained for subsequent use. Other nontarget species are captured incidentally but have little or no commercial value
and are therefore discarded by the vessel. These discards can include seabirds,
turtles, cetaceans and sharks and various species of fish that may be of little interest to a fishing vessel focused on a specific market or processing factory.18
In the WCPO tuna fisheries, the purse-seine and longline gears have the largest
incidental catch, while pole and line is far more selective and tends to take only
small amounts of mahimahi, rainbow runners and non-target tunas (although
pole and line can impact significantly if baitfish supply fisheries are not effectively managed).19 Key concerns for the purse-seine and longline fleets relate to
the potential impacts of incidental catch on vulnerable species (that is, seabirds,
cetaceans, turtles and sharks).
The use of FADs by purse-seine fleets has also raised serious conservation
concerns. Purse-seine sets on schools associated with FADs and logs will catch
smaller fish, particularly juvenile yellowfin and bigeye, whereas sets on unassociated free-swimming schools (that is, non-FAD sets) will catch larger skipjack and/
or adult yellowfin.20 Proponents argue that FADs have increased the efficiency of
the Conservation and Management of Highly Migratory Fish Stocks in the Western and
Central Pacific, WCPFC, Pohnpei, Federated States of Micronesia, 917 August 2011.
16 WCPFC. (2009). Report of the Sixth Regular Session of the Scientific Committee of
the Western and Central Pacific Fisheries Commission. Papeete, French Polynesia,
711 December 2009.
17 Davies, Hoyle, Harley, Langley, Kleiber and Hampton, Stock Assessment of Bigeye Tuna
in the Western and Central Pacific Ocean.
18 Dayton Alverson, Mark Freeberg, Steven Murawski and J. G. Pope, A Global Assessment
of Fisheries Bycatch and Discards (Rome: FAO, 1994).
19 Robert Gillett and Donald Bromhead, Tuna for Tomorrow: Some of the Science Behind an
Important Fishery in the Pacific Islands (Manila: Asian Development Bank, 2008).
20Adam Langley, Andrew Wright, Glenn Hurry, John Hampton, Tranform Aqorau and
Len Rodwell, Slow Steps Towards Management of the Worlds Largest Tuna Fishery,
Marine Policy, 33/2 (2009): 271279.
a case study of western and central pacific tuna fisheries
413
purse seining,21 while others note that the significant reduction in the size of fish
caught undermines the efficiency gains.22
In addition to their significant impacts on bigeye and high levels of juvenile
catch, scientists have raised concerns that the use of FADs may be creating an
ecological trap.23 An ecological trap is an event whereby population growth is
reduced due to individuals making poor habitat choices. Studies have suggested
that tuna associated with FADs are less healthy than those in unassociated freeswimming schools.24 It has also been pointed out that the use of FADs is introducing further uncertainties into scientific assessments due to their impact on
tuna behaviour.25
Since the mid-1990s, various studies have also suggested that the profitability
of the WCPO tuna fisheries could be increased through significant changes in
fleet composition and reductions in most, if not all, fleets. Among other things,
these studies have suggested that fishing capacity is significantly above optimal
levels, thereby reducing the profitability of the WCPO tuna fisheries. In addition, the current fleet composition, involving a mix of gears, does not necessarily
maximise the benefit from WCPO tuna fisheries. Catches of bigeye and yellowfin
by purse-seine fishing vessels, particularly juveniles in schools associated with
FADs, provide a smaller benefit to the overall value of the WCPO tuna fisheries
than would be achieved if these fish had been allowed to mature and then be
caught by longline. The overall benefit from the WCPO tuna fisheries would
be significantly higher if these tuna were caught in a manner (such as by longline)
that allowed their maximum value to be reached. If purse-seiners were prohibited from setting their nets on schools associated with FADs and were able to
otherwise avoid all catches of bigeye, then these fish may potentially become
21 Julio Moron, Juan Jose Areso and Pilar Pallares., Statistics and Technical Information
About the Spanish Purse Seine Fleet in the Pacific, paper delivered at 14th Meeting of the Standing Committee on Tuna and Billfish, SPC, Noumea, New Caledonia,
916 August, 2001.
22Alain Fonteau, Pilar Pallares, John Sibert and Ziro Suzuki., The Effect of Tuna Fisheries on Tuna Resources and Offshore Pelagic Ecosystems, in Elizabeth Borgese, Aldo
Chircop and Moira McConnell (eds.), Ocean Yearbook, Volume 16 (Chicago: University
of Chicago Press, 2002), 142170.
23Gillett and Bromhead, Tuna for Tomorrow: Some of the Science Behind an Important
Fishery in the Pacific Islands; Fonteneau, Pallares, Sibert and Suzuki., The Effect of Tuna
Fisheries on Tuna Resources and Offshore Pelagic Ecosystems; Hallier and Gaertner,
Drifting Fish Aggregation Devices Could Act as an Ecological Trap for Tropical Tuna
Species.
24Hallier and Gaertner, Drifting Fish Aggregation Devices Could Act as an Ecological
Trap for Tropical Tuna Species.
25Mark Maunder, Updated Indicators of Stock Status for Skipjack Tuna in the Eastern
Pacific Ocean, paper presented at Tenth Stock Assessment Review Meeting of the
Inter-American Tropical Tuna Commission, 1215 May 2009, La Jolla, California, USA.
414
quentin hanich
available to the longline fishery for a far greater benefit to the overall value of the
WCPO tuna fisheries.
Reducing overcapacity or changing fleet and species compositions would likely
maximise the benefit from the WCPO tuna fisheries and deliver significant conservation outcomes. Bioeconomic modelling has indicated that reductions of
50 to 68 per cent in fishing effort levels (particularly in purse-seine fleets) would
significantly increase the profitability of the combined WCPO tuna fisheries and
maximise the total resource rents across the whole region.26
However, such reductions would also transfer benefits from States with significant purse-seine interests to those with significant longline interests. Bioeconomic modelling has found that the benefits from significant fleet restructuring
and purse-seine reductions would be enjoyed disproportionately and that the
actual outcomes could be detrimental to coastal States with significant purseseine fisheries.27 Consequently, any resolution of overcapacity and fleet structures will likely require some mechanism to equitably distribute the consequent
costs and benefits.
Coastal and Flag State Interests
Fourteen States (or entities) collectively control almost all fishing activities that
impact on skipjack, bigeye and yellowfin: Papua New Guinea, Indonesia, the Philippines, Japan, Kiribati, Solomon Islands, Nauru, Federated States of Micronesia,
Tuvalu, the Marshall Islands, South Korea, Chinese Taipei, the United States and
China. Together, these 14 core States effectively control the WCPO tuna fisheries
and are ultimately responsible for implementing conservation and management
measures that directly limit or regulate fishing activities.
Figures 18.1 through 18.428 illustrate the gear and species interests for all
States that reported catches between 2008 and 2010. Seven of the core 14 States
that control the fishing grounds and fishing fleets can be roughly identified
26Michel Bertignac, Harry Campbell, John Hampton and Andrew Hand, Maximising
Resource Rent from the Western and Central Pacific Tuna Fisheries, Marine Resource
Economics, 15/3 (2000): 151177; Tom Kompass and Tuong Nhu Che, Economic Profit
and Optimal Effort in the Western and Central Pacific Tuna Fisheries, Pacific Economic
Bulletin, 21/ 3 (2006): 4662.
27Christopher Reid, Michel Bertignac and John Hampton, Further Development of,
and analysis using, the Western and Central Pacific Ocean Bioeconomic Tuna Model
(WCPOBTM) (Honiara: FFA and SPC, 2006); Christopher Reid, Economic Implications
of an Implicit Allocation of Bigeye Harvest Rights Through an Across the Board Reduction in Effort Levels in the Western and Central Pacific Tuna Fishery, paper presented
at Sharing the Fish Conference, 23 February2 March 2006, Perth, Australia.
28Source data from Terawasi and Rodwell, Value of WCPO Tuna Fisheries (Excel
database).
a case study of western and central pacific tuna fisheries
415
figure 18.1Scale of interests for Coastal States: from bigeye to Skipjack (average
20082010).
figure 18.2Scale of interests for flag States: from bigeye to Skipjack (average
20082010).
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figure 18.3Scale of interests for Coastal States: from Purse-seine to Longline (average
20082010).
figure 18.4Scale of interests for flag States: from Purse-seine to Longline (average
20082010).
a case study of western and central pacific tuna fisheries
417
as purse-seine/skipjack States. Most of these States are part of the group of
coastal States that dominate the most productive fishing grounds (Papua New
Guinea, Kiribati, Tuvalu, Nauru, the Federated States of Micronesia and the Solomon Islands). Most of the benefits that these six States enjoy from the WCPO
tuna fisheries come from skipjack (compared to bigeye and yellowfin), purseseine fisheries (compared to longline and other gears) and licensing revenue for
access to their EEZ (compared to their vessel registry interests).
These interests provide an incentive for these six States to support measures
that distribute much of the conservation burden onto longline fleets. The dominant coastal State interests of these six States also encourage these States to support conservation measures that distinguish between high seas and EEZs.
The seventh of the purse-seine/skipjack States is the United States. The United
States is dominated by its vessel registry interests, which provide significantly
greater catches from the WCPO tuna fisheries, than the catch from within its EEZ.
Although far less significant in the context of its overall interest, the United States
also catches substantial amounts of bigeye through its Hawaiian longline fisheries. These interests provide incentives for the United States to support measures
that minimise the conservation burden on its purse-seine DWFN fleets and its
coastal longline fisheries. As an established DWFN, the United States also has a
strong interest in protecting its historical level of activity and would be motivated
to argue for measures that distribute the burden of conservation across all waters
of the WCPO, without regard to waters under national jurisdiction.
The United States, the Solomon Islands, the Marshall Islands, the European
Union, Ecuador, El Salvador and New Zealand also have significant interests in
purse-seine fisheries that set on FADs. South Korean fleets on the other hand
report a far lower use of FADs. Consequently, a conservation measure that proposes a FAD prohibition to address overfishing of juvenile bigeye will have far
less impact on Korean interests than a generalised limit on purse-seine effort.
Alternatively, heavily FAD-reliant purse-seine fleets may consider a generalised
limit on purse-seine effort to affect their interests less significantly than a prohibition on the use of FADs.
The remaining seven core States have fishing interests that are more widely
distributed across multiple gears, mostly longline and purse-seine but also some
pole and line and other artisanal gears. They are Japan, the Philippines, Indonesia, Chinese Taipei, South Korea, China and the Marshall Islands. Each of these
States is a significant flag State, while four of these also have significant coastal
State catches. The Marshall Islands has a significant fleet that returns more benefit than the fisheries within its EEZ, and has a strong interest in skipjack but
also has a moderate interest in yellowfin, and minimal interest in bigeye. China
is evenly split as a flag State with moderate interests in bigeye, skipjack and yellowfin. Korea and Indonesia have strong skipjack interests balanced with moderate bigeye and yellowfin interests. The Philippines has a strong skipjack interest
balanced with a moderate yellowfin interest. Chinese Taipei is dominated by
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y ellowfin interests within its coastal waters, while its flag State interests are
more evenly balanced between skipjack, yellowfin and bigeye. Japanese interests
are fairly evenly spread between the three species, favouring skipjack as a flag
State and bigeye as a coastal State. These States must balance the costs and benefits of different conservation measures across their own domestic interests when
considering how best to address conservation challenges.
The positions of the coastal States with mixed interests in multiple gears and
species are further complicated by their significant flag State interests. This is
particularly a challenge for Indonesia and the Philippines, which have extensive
vessel interests that extend into the high seas. This significantly undermines any
motivation that these States may have in supporting high seas closures or conservation measures that prioritise conservation reductions on the high seas over
waters under national jurisdictions.
Development Interests
Conservation and management measures may also impact heavily on developing
States that depend significantly on these fisheries and have strong aspirations to
further develop their benefits. Almost all of the key coastal States in the WCPO
tropical tuna fisheries are developing States. These States are ultimately responsible for managing the majority of the WCPO tropical tuna fisheries and implementing conservation and management measures. In addition to their rights and
responsibilities over the fisheries within their EEZs, they have significant interests
in various fishing activities and aspire to further develop their interests and benefits. Some of these States will have few other development and resource options
and will be more heavily impacted by the conservation burden than other States
with diverse resources, large institutions and substantial revenue streams from
multiple economic activities.
The special requirements of these developing States were a core issue in the
negotiation of the WCPF Convention and were incorporated into its Article 30.
The Pacific Islands Forum Fisheries Agency referred to this Article as the foundation on which the Commission will be built.29 Article 30(2) establishes the
principle that the WCPFC must take into account the special requirements of
developing States (and territories and colonies), particularly small island States.
In this context, the WCPFC must consider: the vulnerability of these States and
territories that depend on the fisheries, including food-security concerns; the
need to avoid adverse impacts on, and ensure access to fisheries by, subsistence,
small-scale and artisanal fishers and fishworkers, as well as indigenous people in
29Sandra Tarte, Report on the Third Session of the Preparatory Conference for the Establishment of the Commission on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacific (Suva: University of the South Pacific, 2002).
a case study of western and central pacific tuna fisheries
419
these States and territories; and the need to ensure that measures do not result
in transferring, directly or indirectly, a disproportionate burden of conservation
action onto these States and territories. These special requirements, and the
importance of marine resources to the sustainable development of these States,
have also been recognised in other globally significant agreements, such as the
Barbados Programme of Action for the Sustainable Development of Small Island
Developing States and the World Summit for Sustainable Developments (WSSD)
Johannesburg Plan of Implementation.
In this context, the small island developing State members of the WCPFC have
actively supported the insertion of an exemption in every WCPFC conservation
and management measure to protect the development aspirations of small island
developing States and territories in accordance with Article 30 of the WCPF Convention. Paragraph 6 of Conservation and Management Measure (CMM) 200801
exempts the domestic fisheries of these States from the conservation limits that
are prescribed in the conservation measure.
Food Security and Artisanal Fishing Interests
Many of the WCPO coastal States are home to coastal communities that depend
heavily upon living marine resources for food security and employment in artisanal fisheries. Among the Pacific islands, the tuna fisheries represent an important
source of protein. Scientists have recommended that Pacific island governments
should increase local access to these tuna fisheries in order to partly meet increasing Pacific island food security requirements.30 Recent studies have estimated
that 75 per cent of Pacific island coastal fisheries will not meet forecast food
security needs due to a forecast 50 per cent growth in population by 2030, limited productivity of coastal fisheries (exacerbated by overfishing) and inadequate
national distribution networks.31
Similarly, coastal communities within Vietnam, Indonesia and the Philippines
also depend heavily on living marine resources for food security.32 Unfortunately,
30Johan Bell, Mecki Kronen, A. Vunisea, W. Nash, G Keeble, A. Demmke, S. Pontifex, and
S. Andrfout, Planning the Use of Fish for Food Security in the Pacific, Marine Policy,
33/1 (2009): 6476.
31 Ibid.
32Nerissa Salayo, Len Garces, Michael Pido, Kuperan Viswanathan, Robert Pomeroy,
Mahfuzuddin Ahmed, Ida Siason, Keang Seng and Awa Masae, Managing Excess
Capacity in Small-Scale Fisheries: Perspectives from Stakeholders in Three Southeast
Asian Countries, Marine Policy, 32/4 (2008): 692700, 696; Robert Pomeroy, John
Parks, Richard Pollnac, Tammy Campson, Emmanuel Genio, Cliff Marlessy, Elizabeth
Holle, Michael Pido, Ayut Nissapa, Somsak Boromthanarat and Nguyen Thu Hue, Fish
Wars: Conflict and Collaboration in Fisheries Management in Southeast Asia, Marine
Policy, 31/6 (2007): 645656, 645.
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coastal fisheries resources throughout Southeast Asia are in severe decline due to
overfishing. This is increasing poverty throughout artisanal fishing communities
and reducing the contribution of fisheries to food security, among other things.33
The value of artisanal catches in some Pacific island States may exceed the value
of commercial catches.34 For example, Kiribati received approximately AU$32 million in government revenue from distant water fishing access fees in 2008. However, the artisanal fishing industry caught approximately 12,800mt in 2008, valued
at around AU$33.2 million. While much of this value was consumed locally and
provided little revenue, the locally based artisanal fleets operated approximately
4,800 vessels (less than 7 meters) and directly or indirectly employed 20,000
peopleroughly 20 per cent of the entire Kiribati population.35
Many of the States with food-security interests must balance tensions between
artisanal and commercial fishing interests. Many Pacific island States have implemented regulations to protect near-shore artisanal fisheries and prohibit distant
water fleets from fishing within coastal exclusion zones. Nevertheless, artisanal
communities throughout the WCPO region continue to express concerns at the
perceived impacts of distant water fishing fleets on artisanal fisheries. These tensions are likely to increase if coastal fisheries continue their decline and increasingly transfer effort to near-shore skipjack tuna and anchored FADs.
Given their food security interests, these coastal States will suffer from conservation measures that limit artisanal catches or inequitably transfer any conservation burden onto artisanal communities. Furthermore, these States will have an
explicit interest in ensuring that key fish stocks are sustained at a level to support
continued food security for coastal communities.
Market Interests
A number of States around the world, including many of the core 14, have a market
interest in the WCPO tropical tuna fisheries through their consumption of tuna
products. Tropical tuna are processed into a variety of products, ranging from
minimally processed fresh and frozen whole tuna (that is, bigeye and yellowfin),
33Geronimo Silvestre, Len Garces, Stobutzki, Mahfuzuddin Ahmed, R. Valmonte-Santoz,
C. Z. Luna and W. Zhou, South and South-East Asian Coastal Fisheries: Their Status and
Directions for Improved Management: Conference Synopsis and Recommendations, in
Geronimo Silvestre, Len Garces Stobutzki, Mahfuzuddin Ahmed, R. Valmonte-Santoz,
C. Luna, L. Lachica-Alino, P. Munro, V. Christensen and Daniel Pauly (eds.), Assessment,
Management and Future Directions for Coastal Fisheries in Asian Countries, Worldfish
Centre Conference Proceedings, (Penang: Worldfish Centre, 2003), 37.
34Kate Barclay and Ian Cartwright, Capturing Wealth from Tuna: Case Studies from the
Pacific (Canberra: Asia Pacific Press, 2006) 31.
35Quentin Hanich and Martin Tsamenyi, Review of Kiribati Access and Licensing Arrangements for Offshore Fisheries in Kiribatis EEZ (Canberra: AusAID, 2010).
a case study of western and central pacific tuna fisheries
421
through various loining stages to fully processed canned retail products (notably
skipjack and yellowfin). Canned tuna is one of the most significant products that
originate from the WCPO purse-seine fisheries. Processing of canned tuna occurs
in two stages. Loining is where the fish is headed, gutted, de-boned, pre-cooked
and prepared for canning. Subsequently, the loins are then canned and cooked a
second time in an automated process.
Thailand is the worlds largest processor of canned tuna. Thailand is also the
recipient of almost half of the WCPOs purse-seine catch.36 The USA, Japan,
China, Philippines, Korea, American Samoa, and increasingly Papua New Guinea
and Indonesia also have significant interests in domestic processing operations
that are highly dependent upon consistent supplies of skipjack and yellowfin.
Consequently each of these States has a strong interest in the continued operation of the skipjack and yellowfin fisheries and their provision of cheap raw material for their factories.
The interests within these States may suffer if conservation measures were to
restrict supply seasonally (as could happen if the WCPFC were to adopt proposals
to close the entire WCPO purse-seine fishery for three months a year).37 Similarly,
these States would suffer if the WCPFC failed to address sustainability concerns
for yellowfin. For those States with other coastal State interests, this may present internal tensions as these States balance their interests in a cheap supply
for processing factories with an interest to increase access and licensing revenue
through tightening supply and access.
Some WCPO States and territories also export various fresh, smoked and frozen products to global markets. Much of this requires minimal processing infrastructure compared to canning and loining, although some operations such as
katsuoboshi require significant processing infrastructure.38
The largest consumer markets in the world for fresh, frozen, smoked and
canned tuna are the USA, Japan and Europe.39 All of these markets, to some
degree, depend upon the WCPO tropical tuna fisheries for their supply. In addition, markets in developing States are looking towards domestically produced
and imported canned tuna to counter food insecurity and as a cheap form of
36Trimarine, Tuna Markets and Seiner Capacity, paper presented at RFMO Tuna Management Workshop, June 291 July 2010, Brisbane, Australia, Slide 6.
37For example, in February 2011 an industry association that represents some tuna
industry interests called for a three-month closure of the WCPO purse-seine fishery
International Seafood Sustainability Foundation (ISSF), Tuna Coalition Backs Seasonal
Pacific Fishery Closure, (ISSF, 2011), http://iss-foundation.org/2011/02/22/tuna-coalitionbacks-seasonal-pacific-fishery-closure/.
38Katsuoboshi are hot-smoked, then mould-cured skipjack. Other related products (fushi
mono) utilise similar treatments on yellowfin and mackerel species. Kate Barclay, Hannah Parris and Quentin Hanich, Tuna Trade Flows from the Coral Triangle, (Sydney:
TRAFFIC, 2009), 49.
39C. Catarsi. World Tuna Markets (Rome: FAO, 2004), 6.
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rotein.40 Within this context, conservation and management decisions within
p
the WCPFC, particularly in regard to skipjack and purse-seine fisheries, can
quickly affect global markets and have significant repercussions on prices.41
Much like the fishing interests discussed earlier, the market interests of the
States identified above may conflict domestically in States that consume significant amounts of canned tuna, and significant amounts of fresh and frozen tuna,
particularly in the case of Japan and the United States with their large markets
for high-grade sashimi. The United States and Japan, and to a lesser extent South
Korea, China, Chinese Taipei and Europe, must balance the costs and benefits
of different conservation measures across their own domestic market interests
in canned tuna and sashimi when considering how best to address conservation
challenges.
Distributing the Conservation Burden Across Multiple Jurisdictions
The WCPFC faces an increasingly complex and urgent conservation and management challenge. The scientific assessments clearly indicate that urgent action is
required to address overfishing and reduce fishing mortality for bigeye, halt any
increases in fishing mortality for yellowfin, reduce fishing mortality of juvenile
bigeye and yellowfin, and develop precautionary limits for skipjack.
The conservation challenge is complicated by the multigear, multispecies and
multinational characteristics of the WCPO tropical tuna fisheries. Each species
of tropical tuna is caught by each gear in a tightly intermeshed manner that
is difficult, if not impossible, to separate. Consequently, this makes the fishery
inherently challenging to manage. This complexity is exacerbated by the substantially different biological characteristics of skipjack, yellowfin and bigeye (that is,
highly resilient and productive skipjack compared to the longer-lived and less
productive bigeye).
The complex and intermeshed nature of the WCPO tropical tuna fisheries
makes it extremely challenging to address a specific management challenge,
such as overfishing of bigeye, with a narrowly focused management response.
Consequently, the WCPFC and its members must develop, negotiate and implement a conservation and management measure that includes a package of management options that will collectively achieve the conservation goal. However,
each of these management options will also directly and indirectly impact upon
the interests of WCPFC members to varying degrees. Key management options
include:
40Ibid., 59.
41 Jongil Jeon, Chritopher Reid and Dale Squires, Is There a Global Market for Tuna?
Policy Implications for Tropical Tuna Fisheries, Ocean Development and International
Law, 39 (2008): 3250.
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423
Seasonal Closures
Some WCPFC members have supported the introduction of seasonal closures
on the purse-seine fishery in order to reduce fishing effort, and therefore reduce
fishing mortality of bigeye, yellowfin and skipjack. The efficacy of this measure
depends upon the degree to which the restriction truly removes the effort from
the fishery. It is likely that fleets will respond through maximising non-fishing
days (that is, maintenance, transits, etc.) during seasonal closures in order to minimise reductions in fishing effort. Similarly, some fleets may attempt to transfer
their fishing effort to other fisheries during seasonal closures. The application of
a seasonal closure is likely to significantly affect those coastal States and processing interests that have few options to mitigate the impact of seasonal closures,
thereby raising concerns that such measures may disproportionately affect developing coastal State Parties.
Area Closures
Some WCPFC members have supported the introduction of area closures to
reduce fishing effort and thereby reduce fishing mortality of bigeye, yellowfin
and skipjack. Existing measures currently include provisions that close two high
seas pockets to purse-seine fishing. As with seasonal closures, the efficacy of
this measure depends upon the degree to which the restriction truly removes
the effort from the fishery. It is likely that fleets will respond through migrating to other fishing zones such as EEZs, archipelagic waters and other high seas.
It appears that such high seas closures will only reduce fishing mortality if the
effort is physically removed from the region, rather than simply transferring to
another area. The application of an area closure is likely to impact most on hosting coastal States if the area occurred within an EEZ, and on fleets that have
historically fished within the area to be closed. High seas closures are likely to
benefit coastal States that will experience increased competition for access. The
use of high seas closures in a mix of measures offers opportunities for the WCPFC
to comply with Article 30 and avoid disproportionate transfers of conservation
burden onto developing coastal States.
There has also been some suggestion to close or restrict longline fishing in
spawning areas. This has been identified as a potentially effective option, in combination with other measures that implement area closures for purse-seine vessels and reduce effort.42 The application of such a measure is likely to impact
most on host coastal States (if the closure were to occur inside an EEZ) and on
42John Sibert, Inna Senina and Patrick Lehodey, Prospects for Effective Conservation
of Bigeye Tuna Stocks in the Western and Central Pacific Ocean, paper presented at
Seventh Regular Session of the Scientific Committee of the Western and Central Pacific
Fisheries Commission, WCPFC, Pohnpei, Federated States of Micronesia, 917 August
2011.
424
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fleets that have historically fished within the area to be closed. As noted above,
high seas closures would benefit coastal States that will experience increased
competition for access.
Gear Restrictions
Existing measures prescribe a three-month prohibition on the use of FADs by the
purse-seine fishery. Recent assessments have indicated that this has been highly
successful at reducing bigeye fishing mortality and has a strong impact on bigeye
conservation. Assessments have also suggested that reductions in catches during
the FAD closure may be offset by the larger average size of fish caught.43 Further
restrictions and limitations on the numbers of FADs that can be set are likely to
impact significantly on some fleets that have historically used FADs more than
others, and also on some coastal States where the use of FADs is higher
than elsewhere. Other gear restrictions are also feasible, including restrictions
on purse-seine mesh size, time restrictions on deployment or retrieval, types of
hooks, etc.
Capacity Limits
Some WCPFC members have strongly argued for the implementation of capacity limits to reduce effort, thereby reducing fishing mortality and increasing
profitability. The WCPO tropical tuna fisheries suffer from overcapacity in the
purse-seine fleet, and to a declining degree in the longline fleet. Reducing this
capacity to a sustainable level would remove overfishing pressures and increase
the economic efficiency of the fishing fleets, thereby potentially allowing for
higher access fees to be paid to coastal States. However, capacity limits can be
undermined by effort creep where vessels become faster, larger, more powerful
and more effective at catching fish, thereby effectively increasing capacity. Some
members have strongly opposed capacity limits due to concerns that this would
limit development opportunities for developing coastal States and impose a disproportionate conservation burden on developing State Parties. In addition, such
reductions in capacity could limit demand for access and potentially negatively
impact on coastal State access revenue.
Catch and Effort Limits
Existing measures implement catch limits on the longline fishery for bigeye and
yellowfin and effort limits on the purse-seine fishery through the endorsement of
43John Hampton and Peter Williams, Analysis of Purse Seine Set Type Behaviour in 2009
and 2010, paper presented at Seventh Regular Session of the Scientific Committee of
the Western and Central Pacific Fisheries Commission, WCPFC, Pohnpei, Federated
States of Micronesia, 917 August 2011.
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425
a sub-regional vessel day scheme,44 and the commitment to consider the development of a compatible vessel day scheme for the high seas and other EEZs.
These two management options provide a relatively transparent management
mechanism for directly limiting fishing mortality. The efficacy of these management options depends on the consistency of the catch and effort limits with the
scientific advice, and the monitoring of their implementation so as to avoid misreporting and discards. Any exemptions or special conditions must be considered
during the formulation of the measure to ensure that these do not inflate the total
catch or effort beyond the recommended fishing mortality. It is critical that adequate monitoring mechanisms are implemented to ensure that all catches and
effort are accurately reported. The allocation of catch limits to national fleets
and effort limits to areas has largely avoided problems inherent with Olympic
limits, that motivate a race to fish, but further discussion is likely to be required
to more fully allocate catches and effort for high seas fisheries. Such discussions
can quickly become contentious given the lack of an agreed framework for the
distribution of such limits, and the need to ensure that any allocation of limits does not result in a disproportionate burden of conservation onto developing State parties and territories. Other feasible effort limits can include further
restrictions on transhipments-at-sea to reduce opportunities to continuously
maintain fishing effort without interruption.
Discussion
In summary, there are a handful of States that control access to the WCPO tropical tuna fisheries and have the power to manage the interests involved. These
core 14 States control the most productive waters and the vessels that fish in
them. All of these States have a vested interest to some degree in the long-term
sustainability of some part of the fishery. However, there is no straightforward
interest among these 14 States to resolve the current overfishing of bigeye as
the interests in bigeye in this group are less influential as they are complicated
and diluted by three factors.
44The 1982 Nauru Agreement Concerning Cooperation in the Management of Fisheries of
Common Interest (Nauru Agreement) was negotiated by the equatorial Pacific island
States whose waters include the most significant fisheries. Papua New Guinea, Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Palau, Solomon Islands
were all original signatories. Tuvalu subsequently became a party in 1991. In December
2007, the PNA commenced operation of the Vessel Day Scheme (VDS) which aims
to constrain catches to sustainable levels and increase benefits from fishing activities
through access fees paid by DWFNs. Nauru Agreement (1982). Full title: The 1982 Nauru
Agreement Concerning Cooperation in the Management of Fisheries of Common Interest,
http://www.ffa.int/node/93#attachments
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First, each of these States has a dominant or at least strong interest in purseseine fisheries for skipjack that complicates any interest in conserving bigeye.
In addition, bigeye is simply worth less in overall value (across the WCPO tropical tuna fisheries) with fewer States holding an immediate interest in its overall
conservation.
Second, longline fishers have historically reported much of their bigeye catch
as originating from the high seas. In 2010, 87 per cent of all WCPO tuna catches
were taken from within waters under national jurisdiction, yet only 60 per cent
of longline fishing for bigeye was reported as occurring in these waters.45 Given
that there appears to be no biological or oceanographic reason for this difference,
it appears reasonable to assume that longline activities were focused more heavily on the high seas to reduce the costs of paying license fees to coastal States.
Regardless of whether these reports accurately reflect the location of the fishing
activity,46 the effect of this high seas focus is that there is very little incentive for
coastal States to bear a significant conservation burden for bigeye.
It appears that the weak position of bigeye and the unwillingness of members
to compromise their interests are key factors in the WCPFCs failure to adopt
a sufficiently strong conservation and management measures. Delegations have
stated that compromises are required and that an equitable approach should
be adopted.47 When negotiations begin in earnest, however, it appears that this
spirit of compromise and equitable distribution is rarely applied.
In practice, individual WCPFC members have generally demonstrated a desire
to distribute the burden of conservation elsewhere. For example, in 2008 the
United States proposed that measures should be applied to EEZs and archipelagic
45These percentages vary slightly according to whether the calculation is based upon
tonnage or value. As the majority of longline activity occurs on the high seas, the proportion of fishery taken from the high seas is higher if calculated by value than if calculated by tonnage. This is due to the higher price paid for longline catches of bigeye and
yellowfin over purse-seine catches. See, Terawasi and Rodwell, Value of WCPO Tuna
Fisheries (Excel database).
46In 2009, the FFA commissioned a series of studies relating to monitoring, control and
surveillance. These studies prioritised misreporting of catch by fishing vessels as one of
the most significant challenges risks to the management of the WCPO tuna fisheries
FFA, Safeguarding the Stocks: A Report on Analytical Projects to Support the Development
of a Regional MCS Strategy for Pacific Oceanic Fisheries, (Honiara: FFA, 2009).
47For example, in 2008, at the start of WCPFC negotiations for CMM 200801, the U.S.
delegation stated that: any proposed measure should ensure that the conservation burden is distributed equitably among Members of the Commission and among industry
sectors. We emphasise that the criterion here is equitably, rather than equally. See,
Views of the United States on Conservation and Management Measures for Bigeye
Tuna and Yellowfin Tuna, paper presented at Fifth Regular Session of the Western and
Central Pacific Fisheries Commission, Busan, South Korea, 812 December 2008.
a case study of western and central pacific tuna fisheries
427
waters, while arguing for special treatment for its purse-seine fleet.48 The Americans won special treatment for their fleet and subsequently increased the size of
their purse-seine fishing fleet to a level far above their reported level of purseseine effort between 2001 and 2004. This was subsequently identified in 2009 as
a key reason for the ineffectiveness of previous measures.49 In response, delegations from Japan, China, Chinese Taipei, South Korea and the Philippines complained in 2009 that the special treatment for the United States was unfair and
that they were not prepared to accept any further burden of conservation on
their longline interests unless this unfair treatment was addressed.50
Japan has demonstrated similar behaviour on previous proposals for capacity
limits that would entrench Japans historically high levels of fishing effort and
place the majority of the conservation burden on developing States and new
entrants through limiting their capacity at historically low levels.51
Small island developing coastal States have demonstrated similarly self-serving
behaviour with their drive to close high seas pockets and limit the application
48The United States argued that it should not be bound by the agreed reference points
that limited purse-seine effort to the reported maximum in 2004, or the average effort
between 2001 and 2004. Instead, the United States argued that its reference point
should be set at the hypothetical limit of how many vessels it could have had fishing
in the WCPO tuna fisheries during that time in accordance with the multilateral access
treaty between the United States and the Pacific island States. This was despite the fact
that the multilateral access treaty did not apply to many other members of the WCPFC
and did not entitle the Americans to any further rights over the high seas fisheries than
any other State within the WCPO. See Paragraph 7. CMM 200801. Authors personal
notes from observations of delegation statements at the Fifth Regular Session of the
Western and Central Pacific Fisheries Commission, Busan, South Korea, 812 December 2008.
49WCPFC, Report of the Fifth Regular Session of the Scientific Committee of the Western and
Central Pacific Fisheries Commission, Scientific Committee of the Western and Central
Pacific Fisheries Commission, Port Vila, Vanuatu, 1021 August 2009.
50Japan, China, South Korea, the Philippines and Chinese Taipei Statement by Japan
on Behalf of Five Asian Nations Regarding CMM 200801, Sixth Regular Session of
the Western and Central Pacific Fisheries Commission. Papeete, French Polynesia,
711 December 2009.
51 In 2005, Japan tabled a proposal to limit capacity and requested that there should be
a fair starting line for all members for which management measures for bigeye and yellowfin tuna would apply in terms of capacity history. Japan referred back to the 1999
Multilateral High-Level Conference Capacity Resolution as an indicative date that was
before the expansion of purse-seine capacity by Chinese Taipei and supported Japanese historical strengths. Japan noted that it did not want to obstruct the development
of developing coastal States domestic industries but that this development should be
sustainable and should not undermine the WCPFCs conservation efforts. The author
attended the Second Session of the WCPFC. Authors personal notes from observations of Japanese delegation statements at the Second Regular Session of the Western
and Central Pacific Fisheries Commission, Pohnpei, Federated States of Micronesia,
1116 December 2005.
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of measures to their EEZs and archipelagic waters. These States oppose any seasonal closure to purse-seine fishing across the entire WCPO and have successfully
argued that measures should incorporate their existing coastal State management
arrangements for tuna and apply compatible measures to the high seas.52
The Philippines and some other DWFNs attempted to protect their interests in
high seas fisheries by opposing high seas closures in 2008, 2009 and 2010.53 This
was particularly problematic for the Philippines due to the significant interests
of its fishing fleets that fish both within its EEZ and in neighbouring high seas
pockets.
South Korea has favoured measures that prohibit or heavily restrict the use of
FADs over seasonal closures that would simply shut down the entire purse-seine
fishery for a period of time.54 This is consistent with their fleets minimal use of
FADs and their strong interest in purse-seine fisheries. On the other side of FAD
negotiations, the European Union and other States have favoured seasonal closures over FAD prohibitions. This is consistent with their high usage of FADs. In
addition, the 2010 proposal by the European Union to remove high seas closures
and apply a purse-seine closure across the entire Convention Area is consistent
with their dominant interests as a DWFN flag State (the European Union is not
responsible for any coastal waters within the WCPO).
The reluctance shown by WCPFC members to compromise their purse-seine
interests has also been demonstrated by Asian DWFNs and the United States in
regard to their longline fleets. Although longline interests are not as influential as
purse-seine interests, they are nevertheless moderate to strong within the Asian
DWFNs, and significant within the U.S. EEZ surrounding Hawaii. For example, the
United States successfully negotiated special conditions in 2008 that protected its
longline bigeye interests through significantly reducing the conservation burden
on its Hawaiian longline fleet.
52Authors personal notes from observations of delegation statements at the Fifth Regular
Session of the Western and Central Pacific Fisheries Commission, Busan, South Korea,
812 December 2008.
53Authors personal notes from observations of delegation statements at the Fifth Regular
Session of the Western and Central Pacific Fisheries Commission. Busan, South Korea,
812 December 2008, the Sixth Regular Session of the Western and Central Pacific Fisheries Commission. Papeete, French Polynesia, 711 December 2009, and the Seventh
Regular Session of the Western and Central Pacific Fisheries Commission. Honolulu,
U.S., 610 December 2010.
54Authors personal notes from observations of South Korean statements at the Second
Regular Session (Pohnpei, Federated States of Micronesia, 1116 December 2005), the
Third Regular Session (Apia, Samoa, 1115 December 2006), the Fourth Regular Session (Tumon, Guam, 37 December 2007), the Fifth Regular Session (Busan, South
Korea, 812 December 2008), the Sixth Regular Session (Papeete, French Polynesia,
711 December 2008), and the Seventh Regular Session of the Western and Central
Pacific Fisheries Commission (Honolulu, U.S., 610 December 2010).
a case study of western and central pacific tuna fisheries
429
After blocking longline reductions in 2007, Asian DWFNs reluctantly accepted
that longline catch should be reduced by 30 per cent.55 Since then, they have
opposed any further reductions in longline catch and argue that they will not
compromise further until they believe that the burden of conservation is distributed more evenly.56
Given current levels of overfishing, a sustainable solution for bigeye will require
that some or all States agree to compromise their interests and carry some of
the conservation burden. This raises important questions that are fundamental to
conservation and management negotiations. For example, given that the longline
fishery will benefit from conservation reductions in bigeye mortality, should those
States with significant interests in longline fisheries bear a greater share of the
conservation burden than those States with minimal interests in bigeye longline
fisheries who will receive no direct benefit from reductions in bigeye mortality?
When considering the distribution of the conservation burden, should the
WCPFC value the shared nature of common rights to high seas fisheries less than
the exclusive nature of sovereign rights over fisheries within EEZs? How might
these rights be weighed against the absolute sovereignty that coastal States hold
over fisheries within their archipelagic waters or territorial seas? Does the immobility of a coastal States rights over its EEZ grant it greater consideration compared to the flexibility of a DWFNs rights? (that is, a distant water fishing vessel
is highly mobile and can relocate if overfishing in one region reduces a highly
migratory stock below profitable levels, whereas a coastal State is vulnerable to
overfishing in neighbouring EEZs and adjacent high seas and cannot move its
EEZ to another region if stocks decline below profitable levels).
When considering matters of food security and the impact of conservation
reductions, how should the WCPFC consider the diversity and choices of food
enjoyed by distant markets compared to the limited options available to artisanal
communities in coastal developing States? Should a consumer of luxury sashimi
in New York or Tokyo be given equal weighting compared to an artisanal community in Kiribati or the Philippines?
When considering how to reduce effort or catches of fishing fleets, should a
historically high level of catch and fishing activity be prioritised, or penalised if it
55Authors personal notes from observations of statements by Asian DWFNs at the Fourth
Regular Session (Tumon, Guam, 37 December 2007), Fifth Regular Session (Busan,
South Korea, 812 December 2008), Sixth Regular Session (Papeete, French Polynesia,
711 December 2008) and Seventh Regular Session of the Western and Central Pacific
Fisheries Commission (Honolulu, U.S., 610 December 2010).
56Japan, China, Korea, the Philippines, and Chinese Taipei, Statement by Japan on behalf
of Five Asian Nations Regarding CMM 200801, Sixth Regular Session of the Western
and Central Pacific Fisheries Commission, Papeete, French Polynesia, 711 December
2009.
430
quentin hanich
is considered more equitable to share benefits in turn? How should the development aspirations of developing States be recognised in practice?
The WCPFC does not currently discuss these questions, nor does it study the
interests of its members, or the impact of proposed measures on these interests.
Instead, the WCPFC addresses deeply political and economic arguments within a
conservation science framework. This scientific framework then becomes politicised as members propose conservation arguments for measures that best protect their own interests, and refute conservation arguments for measures that
compromise their interests. Ultimately, this undermines the conservation science
while still leaving these political and economic questions unanswered.
It is unlikely that the WCPFC will be able to develop and negotiate such a
response across its plenary table without first agreeing on a conceptual framework that provides for differential application of measures to the degree necessary to recognise the divergent interests while allowing for sufficient reductions
in fishing mortality. Consequently, this chapter suggests that a new discussion is
required that allows for the development of such a conceptual framework. This
discussion would move beyond the conceptual level of rights-based models and
provide the concrete steps that explicitly determine what conservation burden
each State would carry depending on their national characteristics.
Chapter nineteen
In Combating and Deterring IUU Fishing: Do RFMOs Work?
Kuan-Hsiung Wang*
Introduction
Marine fisheries represent a vital component of the worlds diet, economy, and
biodiversity. However, overwhelming evidence shows that these valuable marine
assets are in danger. Under such circumstances, the depletion of fishery resources
is not only a crisis in terms of food security, but also a crisis with respect to
marine ecology and the environment.
Recognising the damage caused by illegal, unreported and unregulated (IUU)
fishing activities in recent years, the international community has been trying
to address the problem in a variety of ways aimed at combating or deterring the
expansion of IUU fishing. Such measures include quota allocation for registered
fishing vessels, prohibitions on the transshipment of fish on the high seas, restrictions in terms fishing areas or seasons, limitations on fishing efforts, provision of
on board observers, port State measures, and so on.
The lack of an effective and centralized authority in dealing with fishing issues
is a key challenge in this context. As an alternative, the establishment of certain
regional fishery management organizations or arrangements may offer a way
out, such that the goal of sustainable conservation and management of transboundary marine resources can be achieved.
Given the situation that combating IUU fishing has become an urgent issue
in managing living resources on the high seas, this chapter reviews the achievements of regional fisheries management organizations (RFMOs), especially as the
management of fishery resources is one of the main functions they are established for. Recent developments on Port State Measures are also discussed and
assessed.
*Professor and Director, Graduate Institute of Political Science, National Taiwan Normal
University, Taiwan.
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kuan-hsiung wang
The Current Situation Concerning IUU Fishing
Fishing on the high seas is much more dangerous in operation as well as requiring
significant investments. However, it can also deliver larger rewards from fishing
activities, mainly because the target species, such as tuna, are highly valued in
the markets. Maintaining good fishing governance in marine areas so that human
society could enjoy the maximum sustainable yield of the fishery resources is one
of the main goals for the present management of the sea. IUU fishing activities
in recent years pose significant threats in this context and tend to impair the
effectiveness of the said management mechanisms.
IUU fishing is not a new or unknown phenomenon in capture fisheries nor
is it confined to fishing activities conducted on the high seas. In practice, such
illegal fishing activities also occur in the exclusive economic zones and territorial
seas of coastal States on the part of both national and foreign vessels and even
in river and inland fisheries.1 It is believed that for those coastal States which are
unobservant in addressing IUU fishing are those States which do not have the
enforcement capabilities, capital or political will to deal with the problem.2 As
Warren Evans, Director of the World Banks Environment Department, noted:
[t]he poor governance, the lack of regulations, the lack of enforcement of regulations presents almost a barrier to effective fisheries management.3
IUU fishing substantially reduces the operating costs for vessel owners who
avoid applying fishing regulations and paying for licenses fees, as well as the
expenses associated with onboard observers, installing vessel monitoring systems
devices or filling catch documentation.4 For a better catch result, in many areas
IUU fishing fleets specifically target commercially high value species, such as tuna
or tuna-like species.5 This would create more problems concerning resources
conservation and management.
Under the situation that the demand for fish is growing globally at the same
time as the constraints on legal fishing are increasingthere exists a strong
1 FAO, Illegal, Unreported and Unregulated (IUU) fishing, http://www.fao.org/fishery/
topic/3195/en.
2Ian Macdonald, Threats from Illegal Fishing, in A. G. Brown (ed.), Fish, Aquaculture
and Food Security: Sustaining Fish as a Food Supply-Record of conference conducted by
the ATSE Crawford Fund, Parliament House, Canberra, 11 August 2004 (Parkville: ATSE
Crawford Fund, 2004), 40.
3World Bank, A PROFISH Approach, http://go.worldbank.org/BGF2409RI0.
4FAO, Report of the Expert Consultation on the Use of Vessel Monitoring Systems and Satellites for Fisheries Monitoring, Control and Surveillance, Rome, 2426 October 2006, ftp://
ftp.fao.org/docrep/fao/009/a0959e/a0959e00.pdf.
5See, IOTC Resolution 00/01 which indicates its concerns that there are significant fishing
activities carried out by non-Contracting Parties in the IOTC Area and that, in particular,
70 per cent of data from longline operations are still not reported to the IOTC. http://
www.iotc.org/files/proceedings/2000/s/IOTC-2000-S05-R%5BEN%5D.pdf.
in combating and deterring iuu fishing: do rfmos work?
433
motivation for illegal fishing particularly in parts of the world where fisheries
governance and control is weak. It is commonly accepted there are many factors
that contribute towards or explain the existence of IUU fishing activities, such as
the existence of excess fishing capacity, the payment of government subsidies,
strong market demand for particular products, weak national fishery administration, poor regional fisheries management, and ineffective monitoring, control
and surveillance (MCS) capacity, including the lack of vessel monitoring systems
(VMS). It can be readily understood, however, that one of the most pivotal underlying motivations is economic.6 In other words, economic gain is the main driving
force behind illegal fishing and this fact may be the key to part of the solution.7
Billions of dollars worth of fish are caught illegally every year with far-reaching
environmental, social and economic consequences. It is believed that IUU fishing
directly impacts on the sustainability of fish stocks and efforts to manage fisheries as a sustainable resource. It has been estimated that, the effect caused by IUU
fishing activities would be between US$ 10 billion and 24 billion worldwide every
year.8 In terms of the EU market, it is estimated that 1.1 billion euros worth of IUU
fishery products have been imported into the EU every year.9
Apart from the economic element, lack of effective flag State control mechanisms also represents a crucial element in the IUU fishing issue. This raises the
6OECD, Why Fish Piracy Persists? (Paris: OECD, 2005), pp. 3739; David J. Doulman,
Role of the Port State in Combating IUU Fishing and Promoting Long-term Sustainability in Fisheries, in FAO, Report of the FAO/FFA Regional Workshop to Promote the
Full and Effective Implementation of Port State Measures to Combat Illegal, Unreported
and Unregulated Fishing, Nadi, Fiji, 28 August-1 September 2006 (Rome: FAO, 2006),
3768; Economics for the Environment Consultancy Ltd, Costs of Illegal, Unreported and
Unregulated (IUU) Fishing in EU Fisheries (London: EFTEC, 2008), 1115.
7Carl-Christian Schmidt, Economic Drivers of Illegal, Unreported and Unregulated (IUU)
Fishing, paper presented at the Conference on the Governance of High Seas Fisheries
and the United Nations Fish Stocks Agreement, St. Johns, Canada, May 15, 2005, http://
www.dfo-mpo.gc.ca/fgc-cgp/documents/schmidt_e.pdf.
8Having said so, the extent of IUU fishing is therefore difficult to establish. Estimates
of the relative size of IUU fishing activity vary substantially across fisheries. For example,
the European Commission estimates that 1520 per cent of global catches are IUU fishing; the FAO estimates that illegal fishing represents up to 30 per cent of total catches in
certain major fisheries and states that catches of certain species could in fact amount to
three times the authorized volume. EFTEC, Costs of Illegal, Unreported and Unregulated
(IUU) Fishing in EU Fisheries, 15; also David J. Agnew, John Pearce et al., Estimating the
Worldwide Extent of Illegal Fishing, http://www.plosone.org/article/info:doi/10.1371/
journal.pone.0004570; also Department for Environment and Food and Rural Affairs,
UK, http://www.defra.gov.uk/environment/marine/manage/iuu/ and Fisheries Ecosystems Restoration Research, Fisheries Center, University of British Columbia, http://
www.mrag.co.uk/Documents/ExtentGlobalIllegalFishing.pdf.
9EFTEC, Costs of Illegal, Unreported and Unregulated (IUU) Fishing in EU Fisheries, 15;
Agnew, Pearce et al., Estimating the Worldwide Extent of Illegal Fishing; Department
for Environment and Food and Rural Affairs, UK.
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kuan-hsiung wang
question of whether the institution of an institutionalized management measure
relating to flag State controls is a feasible option.
The Formation of RFMOs
The best situation for full and effective flag State control would be that the States
in question could completely and effectively exercise their jurisdiction over the
fishing vessels flying their flags. Nonetheless, the situation at present generally
does not reflect this ideally. The reality is that some States, after authorising
vessels to fly their flags, fail to meet their obligations and responsibilities under
international law with respect to the supervision and control of these vessels.
Furthermore, some States even do not provide proper authorisations or controls
for their vessels to fish once they assume the States flag. Such lack of supervision
and authorisation to fishing enables those vessels to engage in IUU fishing with
impunity.10
In order to combat and deter IUU fishing, a number of international fisheries instruments have been adopted which serve to place a range of obligations
on States to exercise effective control over the fishing vessels flying their flags.
The major legal instruments are: the United Nations Convention on the Law of the
Sea,11 (LOSC), the Agreement relating to the implementation of Part XI of the United
Nations Convention on the Law of the Sea of 10 December 198212 (FAO Compliance
Agreement), and the Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 December 1982 relating to
the Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks (UNFSA),13 the FAO Agreement on Port State Measures to Prevent, Deter
10See, http://www.fao.org/fishery/topic/3195/en; also Environmental Justice Foundation, Lowering the Flag: Ending the Use of Flags of Convenience by Pirate Fishing Vessels
(London: EJF, 2009); Matthew Gianni and Walt Simpson, The Changing Nature of High
Seas Fishing: how flags of convenience provide cover for illegal, unreported and unregulated fishing (Canberra: Australian Department of Agriculture, Fisheries and Forestry,
2005).
11 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC). There are 165 States which
have ratified or accededhttp://www.un.org/Depts/los/reference_files/status2010.pdf.
12Agreement relating to the implementation of Part XI of the United Nations Convention
on the Law of the Sea of 10 December 1982, opened for signature 28 July 1994, entered
into force on 28 July 1996, 1836 UNTS 3 (FAO Compliance Agreement). There are 141
States which have ratified or aceeded: http://www.un.org/Depts/los/reference_files/
status2010.pdf.
13Agreement for the Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 October
1995, entered into force 11 December 2001, 2167 UNTS 3 (UNFSA). There are 78 States
in combating and deterring iuu fishing: do rfmos work?
435
and Eliminate Illegal, Unreported and Unregulated Fishing (Port State Measures
Agreement 2009).14 In addition, there is a nonbinding FAO International Plan of
Action to Deter, Prevent and Eliminate Illegal, Unreported and Unregulated Fishing
(IPOA-IUU).15 Apart from these documents, the international community has also
paid attention on the functions of RFMOs.
It is important to understand that the creation of RFMOs is not for the purposes
of combating and deterring IUU fishing activities. Many of them were created or
organised more than half century ago, the Inter-America Tropical Tuna Commission (IATTC) being one pertinent example.16 RFMOs are a cooperative mechanism through which States or organizations, including intergovernmental and
non-governmental organisations (IGOs and NGOs), which are parties/members
to an international fishery agreement or arrangement working together towards
the conservation, management and/or development of fisheries. Basically, the
goal of such mechanism is to achieve sustainability of fishery resources. For
the purposes of managing fishing activities, those RFMOs adopt fisheries conservation and management measures that have binding forces on their members. In
order to reach the goal aforementioned, an RFMO plays a range of roles, including advisory, decision-making, management, or coordination ones.17
As mentioned earlier, such regional fisheries cooperation involves efforts by
States concerned to overcome problems related to the catch of shared or common
fishing resources. This cooperation arises when two or more States concerned
identify a shared problem or goal which requires a common and co-operative
solution. Such cooperation is often formalised through bilateral or multilateral
agreements establishing principles, rules, procedures and institutional organisations for the implementation of cooperation between the parties/members.18
which has ratified or acceded: http://www.un.org/Depts/los/reference_files/status2010
.pdf.
14The FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, approved by the FAO Conference at its 36th Session
on 22 November 2009. http://www.fao.org/fileadmin/user_upload/legal/docs/2_037s-e
.pdf.
15FAO International Plan of Action to Deter, Prevent and Eliminate Illegal, Unreported and
Unregulated Fishing (IPOA-IUU) http://www.fao.org/docrep/003/y1224e/y1224e00.HTM.
16IATTC was established in 1950 in accordance with the entry into force of the Convention for the Establishment of an Inter-American Tropical Tuna Commission, opened for
signature 31 May 1949, entered into force 3 March 1950, http://www.iattc.org/PDFFiles/
IATTC_convention_1949.pdf
17http://www.fao.org/fishery/topic/16800/en.
18Are K. Sydnes, Regional Fishery Organizations: How and Why Organizational Diversity
Matters, Ocean Development and International Law, 32 (2001): 350351; Are K. Sydnes,
Regional Fisheries Organizations and International Fisheries Governance, in Syma
Ebbin, Alf Hoel, and Are K. Sydnes (eds.), A Sea Change: The Exclusive Economic Zone
and Governance Institutions for Living Marine Resources (Dordrecht: Springer, 2005),
117133.
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kuan-hsiung wang
Most of the RFMOs operating in developing regions during the period of 1950s
and 1960s were established at the initiative of the Food and Agriculture Organization (FAO) of the United Nations. They were constituted with broad mandates to
promote research, development and management, but without regulatory powers.
In other words, the function for them is limited. Moreover, these organisations
were established as development mechanisms, their operations dependent on
funding from FAO and other donors. Thus, for the functions to be fulfilled, they
heavily relied on the political will or good faith of members of the RFMOs to
enforce regulations.19
IATTC offers an instructive example. This RFMO was established in 1949 and
was successfully reformed in 2003 in accordance with the process and result of
the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America
and the Republic of Costa Rica (Antigua Convention).20 Its objective is to ensure
the long-term conservation and sustainable use of the fish stocks covered by this
Convention, in accordance with the relevant rules of international law.21 A Commission was established under the management framework of the IATTC, under
which several committees were set up for exercising the functions.22
According to article 10 of the Antigua Convention, a Committee for the Review
of Implementation of Measures Adopted by the Commission is established to:
(a) review and monitor compliance with conservation and management measures
adopted by the Commission, as well as other cooperative measures; (b) analyze
information and any other information necessary to carry out its functions;
(c) provide the Commission with information, technical advice and recommendations relating to the implementation of, and compliance with, conservation and
management measures; (d) recommend to the Commission means of promoting
compatibility; (e) recommend to the Commission means to promote the effective
implementation of the Antigua Convention; (f) in consultation with the Scientific
Advisory Committee, recommend to the Commission the priorities and objectives
of the program for data collection and monitoring of this Convention and assess
and evaluate the results of that program; (g) perform other functions.23
In addition, article 18 provides that Parties shall take the measures necessary
to ensure the implementation of and compliance with the Antigua Convention
19 Are K. Sydnes, Regional Fishery Organizations in Developing Regions: Adapting to
Changes in International Fisheries Law, Marine Policy, 26 (2002): 374.
20Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa
Rica, opened for signature 14 November 2003, entered into force 27 August 2010, (Antigua
Convention). http://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf.
21 Antigua Convention, article II.
22Ibid., article VI.
23Annex 3. Committee for the Review of Implementation of Measures Adopted by the
Commission, Antigua Convention.
in combating and deterring iuu fishing: do rfmos work?
437
and any conservation and management measures adopted pursuant thereto,
including the adoption of the necessary laws and regulations. Also, Parties shall
provide to the Commission all the information that may be required for the
fulfilment of the objective of the Antigua Convention, including statistical and
biological information and information concerning its fishing activities in the
Convention Area, and shall provide to the Commission information regarding
actions taken to implement the measures adopted in accordance with the Antigua Convention.
Other RFMOs take similar actions to those made by the IATTC either by adopting resolutions or taking related measures so that the conservation and management measures can be achieved.24
Given the explanation of the functions implemented by RFMOs, it might be
safe to conclude that the RFMOs are given exclusive competence to regulate the
high seas fisheries of straddling fish stocks and highly migratory species within
the areas where they could exercise jurisdiction.25 Under such conditions, the
RFMOs should be able to play an important role in combat and deter IUU fishing activities.
Efforts That RFMOs Have Made in Combating and Deterring
IUU Fishing
When the question whether an RFMO could fulfill its functions effectively or not
is under discussion, one of the fundamental issues to be considered is the nature
of the duty to cooperate. It is noteworthy that cooperation between States has
long been a key component of international relations. Indeed, there is a duty
to cooperate among States whether they are amicable or antagonistic and this
concept can be traced back to certain documents adopted more than three
24For example, the International Commission for the Conservation of Atlantic Tunas
(ICCAT) adopted a recommendation (200910) in 2009 under the title of Recommendation by ICCAT further amending the recommendation by ICCAT to establish
a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the ICCAT Convention Area. With this recommendation, the ICCAT
Executive Secretary shall draw up a Draft IUU List and the Commission shall request
the flag State to notify the owner of the vessels of its inclusion in the Draft IUU List and
of the consequences that may result from their inclusion being confirmed in the IUU
list adopted by the Commission.
25Tore Henriksen, Geir Honneland, and Are Sydnes, Law and Politics in Ocean Governance: The UN Fish Stocks Agreement and Regional Fisheries Management Regimes
(Leiden: Martinus Nijhoff Publishers, 2006), 16; Robin Churchill and A. Vaughan Lowe,
The Law of the Sea (Manchester: Manchester University Press, 1999), 309; Francisco
Orrego Vicuna, The International Law to High Seas Fisheries: From Unrestricted Freedom of Fishing to Sustainable Use, in Olav Schram Stokke (ed.), Governing High Seas
Fisheries (Oxford: Oxford University Press, 2001), 4042.
438
kuan-hsiung wang
decades ago. In particular, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the
Charter of the United Nations,26 adopted by the General Assembly of the United
Nations in 1970, can be seen as the starting point for cooperation in the future,
even though it is a declaration which has limited legal binding force.
This duty can be characterised into one of the two forms: a duty to enter into
negotiations; and a duty to negotiate and, trying every efforts to reach an agreement. Obviously both duties of cooperation will require negotiations entered into
in good faith. Moreover, the parties concerned shall be obliged to work together in
good faith to attempt to reach an agreement, and to carry that agreement through
to a successful conclusion.27 Under such considerations, certain provisions regulated in the LOSC and the UNFSA embrace the spirit of cooperation.
According to article 118 of the LOSC, States fishing for the same living marine
resources or in the same area of the high seas shall cooperate in the conservation
of these resources. With respect to straddling fish stocks and highly migratory
species on the high seas, such obligation is supplemented with the special obligations of the relevant coastal States and States fishing for these stocks in adjacent
areas of the high seas to cooperate for the conservation of these stocks.28 Taking
into consideration the practices in recent years from States and the establishment
of RFMOs, it is accepted that these obligations have become part of customary
international law, especially when such matters are linked with environmental
protection issues.29
26The wording is States have the duty to co-operate with one another, irrespective
of the differences in their political, economic and social systems, in the various spheres of
international relations,... See Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the
United Nations, UNGA Resolution 2625(XXV), 24 October 1970.
27Lakshman Guruswamy, The Promise of the United Nations Convention on the Law
of the Sea: Justice and Environmental Disputes, Ecology Law Quarterly, 25 (1998): 189,
cited in Stuart M. Kaye, International Fisheries Management (The Hague: Kluwer Law
International, 2001), 111.
28LOSC, articles 63(2) and 64(1). Especially article 64(1), where it is provided that those
States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in
the adjacent area.
29Rosemary Gail Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Dordrecht:
Martinus Nijhoff Publishers, 2004), 4344; Tore Henriksen, Geir Honneland, and Are
Sydnes, Law and Politics in Ocean Governance, 15. Also the discussion FAO, Deep Sea
2003: Conference on the Governance and Management of Deep-sea Fisheries, Part 1:
Conference reports, 15 December 2003, Queenstown, New Zealand (Rome: FAO, 2005),
421422; Michael W. Lodge, David Anderson, Terje Lbach, Gordon Munro, Keith
Sainsbury, and Anna Willock, Recommended Best Practices for Regional Fisheries Management Organizations: Report of an independent panel to develop a model for improved
governance by Regional Fisheries Management Organizations (London: The Royal Institute of International Affairs, 2007), 7071.
in combating and deterring iuu fishing: do rfmos work?
439
Such concerns are expressed in certain international instruments. For example,
the Declaration of the United Nations Conference on the Human Environment, 1972
(also known as Stockholm Declaration),30 Principle 24, states that international
matters concerning the protection and improvement of the environment shall
be handled in a cooperative spirit by all countries. Then international cooperation through multilateral or bilateral arrangements or other appropriate means
is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres. Furthermore,
Principle 25 asserts that States shall ensure that international organizations play
a coordinated, efficient and dynamic role for the protection and improvement of
the environment.
Another example would be in Part 3 of the UNFSA, which includes several provisions concerning mechanisms for cooperation on the conservation of straddling
fish stocks and highly migratory species. Although the introductory paragraph of
article 8 seems to leave States a choice whether to cooperate directly or through
regional or sub-regional fisheries management organisations or arrangements,
the ensuing paragraphs emplace radical limitations on this freedom. Where there
exists a fisheries management organisation or arrangement competent to regulate the fishery for a specific straddling fish stock or highly migratory species,
those States fishing for the stocks on the high seas and the relevant coastal States
shall become members of the organisation or participants of the arrangement.31
States fishing for the stock on the high seas may choose not to join or participate but are then obligated to apply the management measures adopted
by the organisation or arrangement, in order to be entitled to fish on the
stock.32 If the straddling fish stock or highly migratory species are not subjected
to the regulatory competence of any organisation or arrangement, States fishing
for the stock on the high seas and the relevant coastal States are obligated to
establish either an organisation or other appropriate arrangements.33
Some scholars suggest that the cooperative governance challenge in marine
resources management is to provide adequate means for meeting three major
tasks: generation of adequate and reasonably consensual scientific knowledge to
permit informed judgments about whether and how exploitation of resources
shall be conducted; adoption of legitimate and appropriate regulatory measures
to govern economic activities while taking heed of existing knowledge; and a
system to promote compliance with such measures among those engaged in
301972 Declaration of the United Nations Conference on the Human Environment, http://
www.unep.org.
31 UNFSA, article 8(3).
32Ibid., article 8(4).
33Ibid., article 8(5).
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kuan-hsiung wang
resource use in the area.34 Therefore, the latter two issues, that is, regulatory measures and compliance of the members, heavily rely upon members own positive
practices and political wills.
Practices of Port State Measures by RFMOs
Port State Measures (PSM) are requirements established or interventions undertaken by port States which a foreign fishing vessel must comply with or is subjected
to as a condition for port entry or use of ports within the port State. National PSM
would typically include requirements related to prior notification of port entry,
use of designated ports, restrictions on port entry and landing/transshipment of
fish, restrictions on supplies and services, documentation requirements and port
inspections, as well as related measures, such as IUU fishing vessel listing, traderelated measures and sanctions.35 It is envisaged that PSM would provide a powerful and cost-effective means of preventing, deterring and eliminating illegal,
unreported and unregulated fishing.36
Before exploring the practices of PSM, some of the related provisions in the
international documents have to be mentioned. For example, LOSC article 218(1)
provides that
When a vessel is voluntarily within a port or at an off-shore terminal of a State, that
State may undertake investigations and, where the evidence so warrants, institute
proceedings in respect of any discharge from that vessel outside the internal waters,
territorial sea or exclusive economic zone of that State in violation of applicable
international rules and standards established through the competent international
organization or general diplomatic conference.
This article expresses the jurisdiction that a port State could claim as well as that
vessels/flag States willingness to temporarily surrender its control. Nonetheless,
the use of the term discharge implies that only matters concerning pollution
might be the issue over which a port State could exercise its jurisdiction. In other
words, it is premature to include IUU fishing activities into the jurisdiction of a
port State.
34Olav Schram Stokke, Governance of High Seas Fisheries: The Role of Regime Linkages,
in Davor Vidas and Willy Ostreng (eds.), Order for the Oceans at the Turn of the Century
(The Hague: Kluwer Law International, 1999), 159 and 162170.
35FAO, Database on Port State Measures, see http://www.fao.org/fishery/psm/en.
36Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported
and Unregulated Fishing (PSM Agreement), Preamble, paragraph 5. See ftp://ftp.fao.org/
docrep/fao/meeting/018/k6339e.pdf. PSM Agreement was approved by the FAO Conference at its Thirty-sixth Session on 22 November 2009, through Resolution No 12/2009.
Until 19 August 2013, there are 23 signatures, 8 ratification, acceptance, approval and
accession. PSM Agreement has not entered into force yet. For the latest report on the
development of the Agreement, see, http://www.fao.org/fileadmin/user_upload/legal/
docs/5_037s-e.pdf.
in combating and deterring iuu fishing: do rfmos work?
441
Three international instruments, that is, FAO Compliance Agreement, the Code
of Conduct on Responsible Fisheries, 199537 and UNFSA, have laid down the legal
basis for combating IUU fishing, even though the Code of Conduct does not have
any legal binding force but is just voluntary in nature.38 The FAO Compliance
Agreement encourages States to take effective action, in accordance with international law, and to deter the reflagging of vessels by their nationals in order to
undertake fishing activities on the high seas. The UNFSA enhances the connection between the management/conservation measures of the coastal States and
straddling as well as highly migratory stocks. In other words, the FAO Compliance
Agreement pays attention to the flag State responsibility and the UNFSA reinforces the position of a coastal State.
In terms of the Code of Conduct, paragraph 8.3 on Port State Duties indicates
that:
8.3.1 Port States should take, through procedures established in their national
legislation, in accordance with international law, including applicable
international agreements or arrangements, such measures as are necessary to achieve and to assist other States in achieving the objectives of
this Code, and should make known to other States details of regulations
and measures they have established for this purpose. When taking such
measures a port State should not discriminate in form or in fact against
the vessels of any other State.
8.3.2 Port States should provide such assistance to flag States as is appropriate,
in accordance with the national laws of the port State and international
law, when a fishing vessel is voluntarily in a port or at an offshore terminal
of the port State and the flag State of the vessel requests the port State
for assistance in respect of non-compliance with sub-regional, regional or
global conservation and management measures or with internationally
agreed minimum standards for the prevention of pollution and for safety,
health and conditions of work on board fishing vessels.
As far as trying to combat and deter IUU fishing is concerned, the wordings in the
IPOA-IUU might be seen as the instrument most close to the notion of PSM. Most
of all, it defines the term port access, in which it lists the information that a
coastal State should collect, as well as the procedure in recognising IUU fishing.39
In particular it is stated that:
37Code of Conduct on Responsible Fisheries, ftp://ftp.fao.org/docrep/fao/005/v9878e/
v9878e00.pdf.
38Ibid., article 1.1, This Code is voluntary.
39FAO, 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported
and Unregulated Fishing, (FAO: Rome, 2001), Port State Measures, paragraphs 5264.
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kuan-hsiung wang
52. States should use measures, in accordance with international law, for
port State control of fishing vessels in order to prevent, deter and eliminate
IUU fishing. Such measures should be implemented in a fair, transparent and
non-discriminatory manner.
53. [P]ort access means admission for foreign fishing vessels to ports or offshore
terminals for the purpose of, inter alia, refueling, re-supplying, transshipping
and landing, without prejudice to the sovereignty of a coastal State in accordance with its national law and article 25.2 of the 1982 UN Convention and
other relevant international law.
54. [A] vessel should be provided port access, in accordance with international
law, for reasons of force majeure or distress or for rendering assistance to
persons, ships or aircraft in danger or distress.
55. Prior to allowing a vessel port access, States should require fishing vessels and
vessels involved in fishing related activities seeking permission to enter their
ports to provide reasonable advance notice of their entry into port, a copy of
their authorization to fish, details of their fishing trip and quantities of fish on
board, with due regard to confidentiality requirements, in order to ascertain
whether the vessel may have engaged in, or supported, IUU fishing.
56. Where a port State has clear evidence that a vessel having been granted
access to its ports has engaged in IUU fishing activity, the port State should
not allow the vessel to land or transship fish in its ports, and should report
the matter to the flag State of the vessel.
57. States should publicize ports to which foreign flagged vessels may be permitted admission and should ensure that these ports have the capacity to
conduct inspections.
The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing (PSM Agreement) is highly expected to be an
effective and efficient way to combat IUU fishing, but PSM could only be effective
in combating IUU fishing if it is enforced uniformly in different ocean areas. One
option in this regard would be for RFMOs to centralise and distribute relevant
information on a black list40 of IUU fishing vessels, vessel movements, port visits
and inspections, as well as require their Contracting Parties/Members to apply a
minimum set of controls on fishing and support vessels, including denial of entry
into port to IUU fishing vessels.41 Under such situation, RFMOs would play a key
role of making this expectation come true, especially when the RFMOs could
adopt port State measures that are consistent with the PSM Agreement, taking
40A combined IUU fishing vessels list could be found at http://iuu-vessels.org/iuu/.
41 PEW, Closing the Gap: Comparing IATTCs Port State Measures with the FAO Agreement on Port State Measures, http://www.pewenvironment.org.
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443
into account the specific characteristics and circumstances of each RFMO on port
State measures.42
The Pew Environment Groups study on Port State Performance lists certain
RFMOs and offers an assessment on the weakness of enforcement for those RFMOs.
This overview provides a useful starting point for further analysis:
A. IATTC There is a lack of accountability of its Contracting Parties implementation of port State measures due to the lack of performance
review or evaluation of these measures. As a result, all port visits by
IATTCs listed IUU fishing vessels were to Contracting Parties. It is
necessary for IATTC to set up transparent annual review processes to
assess its Contracting Parties compliance with port State measures,
thereby increasing the accountability of Contracting Parties toward
their port State obligations. In the immediate future, IATTC should
recognize other RFMOs IUU fishing vessel lists, with the ultimate
aim of creating one that is global and mutually accepted.43 Of its 16
Contracting Parties, only 3 had signed the PSM Agreement.44
B. ICCAT There is a lack of accountability of its Contracting Parties implementation of port State measures due to the fact that there is no performance review or evaluation of these measures. ICCAT should set up
transparent annual review processes to assess its Contracting Parties
compliance against port State measures, increasing the accountability of Contracting Parties towards their port State obligations. In the
immediate future, ICCAT should recognize other RFMOs IUU fishing
vessel lists, with the ultimate aim of creating one global and mutually
accepted list.45 Of its 48 Contracting Parties, 12 had signed the PSM
Agreement.46
C. IOTC IOTC does not require its Contracting Parties to refuse listed IUU
fishing vessels entry to port (during research period 20042009),
making port State measures less effective. There is a lack of accountability of its Contracting Parties implementation of port State measures because no performance review or evaluation of these measures
exists. IOTC should set up transparent annual review processes
42Report of the International Workshop on Improvement, Harmonization and Compatibility of Monitoring, Control and Surveillance Measures, Including Monitoring Catches from
Catching Vessels to Markets (Barcelona, Spain, MayJune 2010), Doc. No. TRFMO2
W2012A /2010.
43See, http://www.portstateperformance.org/index.php/_rfmo/rfmo/iattc.
44Ibid.
45See, http://www.portstateperformance.org/index.php/_rfmo/rfmo/iccat.
46Ibid.
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to assess its Contracting Parties compliance against port State measures, increasing the accountability of Contracting Parties towards
their port State obligations. In the immediate future, IOTC should
recognize other RFMOs IUU fishing vessel lists, with the ultimate
aim of creating one global and mutually accepted list.47 Of its
28 Contracting Parties, 6 had signed the PSM Agreement.48
D. WCPFC WCPFC does not require its Contracting Parties to deny listed IUUfishing vessels entry to ports, which makes port State measures less
effective. Generally there is a lack of accountability regarding the
implementation of port State measures because there are no performance reviews or evaluations of these measures. WCPFC should
set up transparent annual review processes to assess its Contracting Parties compliance with port State measures, increasing the
accountability of Contracting Parties towards their port State obligations. WCPFC should consider recognizing other RFMOs IUU
fishing vessel lists, with the ultimate aim of creating one global and
mutually accepted list.49 Of its 25 Contracting Parties, 6 had signed
the PSM Agreement.50
From a general review of those RFMOs performance on applying port State
measures, it is easy to perceive the common weakness for those RFMOs: lack
of practices, no transparent annual review process, no information exchange
or linkage between RFMOs with very few members having signed or accepted
the PSM Agreement. It remains unclear whether the PSM Agreement will enter
into force in the short term because very few States have signed and ratified it.
The above-mentioned weaknesses would inevitably impair the effectiveness of
the PSM Agreement.
Conclusion
As has discussed above, economic gain is the main driving force behind IUU fishing activities and this fact may hold the key to part of the solution. The demand
for fish is growing globally at the same time as the constraints on legal fishing
are increasingtogether these form a strong motivation for illegal fishing particularly in parts of the world where fisheries governance and control is weak.
The adoption of the PSM Agreement is an important step towards the cooperative mechanism within and among RFMOs. In other words, RFMOs could play an
47See, http://www.portstateperformance.org/index.php/_rfmo/rfmo/iotc.
48Ibid.
49See, http://www.portstateperformance.org/index.php/_rfmo/rfmo/wcpfc.
50Ibid.
in combating and deterring iuu fishing: do rfmos work?
445
important role in implementing the PSM Agreement. It is anticipated that, under
the framework of RFMOs, coastal States and fishing nations work together
under international agreements to manage specific high seas fisheries within
their convention areas. Therefore, in terms of combating and deterring IUU
fishing activities, RFMOs can be expected to play an important role in fighting
against IUU fishing.
However, according to the discussion in previous section, it seems that RFMOs
do not express their roles clearly in combating IUU fishing. The main cause for
this might be the different position on PSM from Parties/Members of the RFMOs.
Other key issues that arise in this context include:
1.Support for Developing Countries
Developing countries are commonly targeted by IUU fishers due to their lack of
funds and experience with fishing activities in their coastal waters which are frequently governed by loose oversight and ineffective port controls. These countries
need enhanced capacity-building, especially in terms of training for their lawenforcement officials, and to establish better communication at the regional level
to share information on offenders and harmonise actions.51 All these activities
require financial support since they are critical for the successful implementation
of the PSM Agreement. As Mr Ichiro Nomura, the former FAO Assistant-Director
General for Fisheries, stated:
In the developing world, fishing plays a crucial role in reinforcing household
food security, improving nutrition, and providing income. In light of rising world food
prices and growing concern over the wellbeing of some wild fish stocks, we can afford
less than ever to allow IUU fishing to impact these communities.52
The PSM Agreement envisaged this. In the Preamble, the Agreement recognises the
need for assistance to developing countries to adopt and implement port State
measures, so it is understandable that support in different ways is necessary in
order to enforce the Agreement successfully. For this purpose, article 21(4) of
the Agreement keeps on stating that: Parties shall cooperate to establish appropriate funding mechanisms to assist developing States in the implementation of
this Agreement, especially in developing and enhancing capacity; monitoring,
control, surveillance and compliance activities. Further, article 21(5) provides
that, [c]ooperation with and among developing States Parties for the purposes set out in this Article may include the provision of technical and financial
51 Fish Information and Services (FIS), FAO Requests More Funds to Combat IUU Fishing, 25 June 2008. See, http://www.fis.com/fis/worldnews/worldnews.asp.
52FAO, More funding needed in fight against illegal fishing: FAO project helps countries
close ports to pirate fishers, but additional support required, FAO Newsroom (24 June
2008), http://www.fao.org/newsroom/en/news/2008/1000869/index.html.
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kuan-hsiung wang
a ssistance through bilateral, multilateral and regional channels, including SouthSouth cooperation.
2.Enforcement Capacity Building
Vessels engaged in IUU fishing should be denied port services, including water
and food supply, fuelling-up services, and, probably the most important one,
landing its catch. In order for this to be achieved, the coastal State needs to be
equipped with enough facilities, such as patrolling vessels, so that it is capable of
accomplishing these goals. This involves information gathering and inspection on
the high seas, marine areas within national jurisdiction, and the port area. These
lead to the need of technology, manpower, training and financial resources. However, it is still questionable if this could be achieved under the framework of the
PSM. The PSM Agreement contemplates the possibility that port States can allow
vessels into port for the purpose of taking other action to deter IUU fishing, and
this must include denial of access to any port services such as repairing, refuelling
or dry-docking. Denial of services is an effective way to hinder vessel operations
and thus acts as a strong disincentive to IUU fishing. In practice, however, most
tuna RFMOs do not require enforcement actions other than prohibition of landing and transshipment. The IOTC prohibits access to all port services for IUU
fishing vessels, while ICCAT and WCPFC apply restrictions to accessing other
port services, but solely to listed IUU fishing vessels.53
3.A Stronger Legal Binding Instrument Is Needed
The accomplishment of PSM needs a harmonised legal system among coastal
States regionally or even globally, between coastal States and RFMOs. Therefore,
a legal binding instrument is necessary for this purpose. That would involve the
question: what kind of legal capacity do coastal States have to exercise its jurisdiction over a fishing vessel engaged in IUU fishing on the high seas, either the
vessel is flying its flag or it is a foreign vessel. This would need a stronger binding force within the framework of the RFMOs or harmonised legislation among
members of the organisation. However, there is a gap between the wish and reality. For instance, at the eighth annual session, from 1014 October 2011, of the
South East Atlantic Fisheries Organization (SEAFO), a number of conservation
measures were adopted, making progress on the protection of vulnerable marine
ecosystems (VMEs), and the implementation of the PSM Agreement. However,
SEAFO could not reach consensus on a precautionary total allowable catch for
53PEW, Closing the gap: Comparing tuna RFMO port State measures with the FAO
Agreement on Port State Measures, http://www.pewenvironment.org/uploadedFiles/
PEG/Publications/Report/Tuna_RFMO_Report_July2011.pdf; Stefan Flothmann, Kristn
von Kistowski1, Emily Dolan, Elsa Lee, Frank Meere, and Gunnar Album, Closing Loopholes: Getting Illegal Fishing under Control, Science, 328 (4 June 2010): 1236.
in combating and deterring iuu fishing: do rfmos work?
447
the pelagic armourhead.54 This creates a legal loophole where precautionary
principle has been accepted as one of the fundamental principles in international environmental law and it has been taken as an important step in domestic
legislation.
This paper suggests that if port State measures were better implemented, then
combating IUU fishing could be more effective. It is also understandable that
many RFMOs are taking steps by establishing or improving port State measures
among their members to meet the standards of the PSM Agreement, but it is also
a fact that most of the fish stocks under conservation and management are still in
the trend of declining in biomass. This indicates that IUU fishing activities remain
a significant concern. It also suggested that all port States, flag States, fishing entities, and market States should work together. In this context there is clearly a lot
of work for RFMOs yet to undertake.
54See, Biodiversity Policy and Practice, http://biodiversity-l.iisd.org/news/seafo-agreeson-vulnerable-eco systems-and-port-state-measures/.
Chapter twenty
Good Faith Obligations to Protect and Preserve
the Marine Environment: A Proposal on Uniform
High Seas Fisheries Management
Anastasia Telesetsky*
Introduction
Oceanographers tell us that sensitive marine environments are on the slippery
slope to slime as a result of human irresponsibility.1 This observation may soon
not be limited to inshore areas. Far removed from the experience of the nearly
seven billion people who call Earth home, the high seas marine environment,
which covers 50 per cent of the earths surface,2 suffers from the recurring known
threats of overfishing and pollution as well as poorly understood phenomena
such as ocean acidification. Where scientists and fishery managers have been
able to measure human impacts on high sea fisheries, the results have been striking. For example, the Japanese longliners that operate on the high seas regions of
the Pacific Ocean, Indian Ocean, and the Atlantic Ocean were catching at their
pre-1980s peak 10 fish per 100 hooks. By the 1980s, they were catching 12 fish
per 100 hooks.3 Fishery economists have estimated an approximately 11 per cent
catch loss of the potential total catch on the high seas due to mismanagement
and overfishing.4
In spite of collective knowledge of the environmental vulnerability of the high
seas, States have inadequately coordinated legal responses to conserve high seas
*Professor, College of Law, University of Idaho, USA.
1 John Pandolfi, Jeremy Jackson and ors, Are U.S. Coral Reefs on the Slippery Slope to
Slime? Science, 307/5716 (18 March, 2005): 17251726.
2David Freestone, Problems of High Seas Governance in Davor Vidas and Peter J. Schei
(eds.) The World Ocean in Globalisation: Challenges and Responses (Leiden: Martinus
Nijhoff. 2010), 100.
3Boris Worm and David Van der Zwaag, Behind the Deadlines, Canadian Institute of
International Affairs, 64/5 (2007): 5.
4U. Thara Srinivasan, William W. L. Cheung, Reg Watson and U. Rashid Sumaila, Food
security implications of global marine catch losses due to overfishing, Journal of Bioeconomics, 12/3 (2010): 183200, 194.
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anastasia telesetsky
living resources and protect the remaining marine environmental values. One
hundred and sixty four States are parties to the United Nations Convention on
Law of the Sea (LOSC)5 and several more of the key non-party States agree that
many of the articles of LOSC are merely codifications of binding customary international law.6 Yet many of these States, as this chapter suggests, have failed to
make a good faith effort to comply with their obligations under Article 300 of the
LOSC requiring States to conserve living marine resources on the high seas and
protect the integrity of the high seas marine environment.
This chapter considers the role of good faith within the LOSC legal framework.
The point of departure for discussion is an analysis of the rarely invoked article
300 of the LOSC to illuminate what the concept of good faith might mean in
the execution of this treaty by its parties and by those non-parties who accept the
LOSC as codifying customary international law. The legal concept of good faith
in public international law is then examined followed by a qualitative examination of whether States are meeting their good faith high seas conservation and
protection obligations under LOSC article 117, article 118, article 119 and article
192. Specifically, the chapter analyses State participation in Regional Fisheries
Management Organizations (RFMOs), and the domestic promulgation of laws
and regulations protective of high seas fisheries. The chapter finishes with a discussion of the likelihood of States invoking doctrines of responsibility in response
to the failure of some States to meet their LOSC obligations in good faith. In
conclusion, it argues that instead of States seeking to test intellectually challenging and abstract doctrines of State responsibility, limited State resources and
cooperative capital are better invested in advancing a single shared set of technological and regulatory solutions to the current predominantly unmanaged high
seas crisis. This would demonstrate a credible effort to implement underlying
conservation and marine protection LOSC obligations in good faith.
The Duty of States to Act in Good Faith to Conserve
High Seas Fisheries
Under both existing international treaty and customary law involving high
seas fisheries, States must control high seas fishing vessel activities such that
5United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 396 (LOSC). Chronological lists of ratifications of, accessions and succession to the Convention and the related Agreements
as of 23 January 2013, http://www.un.org/Depts/los/reference_files/chronological_lists_
of_ratifications.htm.
6See, for example, Military Implications of the United Nations Convention on the Law
of the Sea: Hearing Before the Senate Armed Services Comm. 108th Cong. 31 (2004)
(statement of Hon. William H. Taft, IV, Legal Adviser, Department of State) (Abroad,
the United States has worked both diplomatically and operationally to promote the provisions of the Convention as reflective of customary international law.)
a proposal on uniform high seas fisheries management
451
State-flagged ships do not endanger internationally shared resources.7 As a starting point to think about why the high seas fisheries are in jeopardy, article 300
of the United Nations Convention on the Law of the Sea is indispensable. Yet,
this Article has received little academic and, far more importantly, government
attention. It is an orphan article inserted in Part XVI of the treaty where Parties
inserted catch-all general provisions and principles to guide the performance of
States in execution of the treaty. Part XVI contains two types of provisions: those
that were obvious to the parties such as an obligation to avoid use of force on
the seas8 and those that the parties had not yet reached full consensus on how to
implement such as rules for responsibility and liability.9 Article 300 was clearly
one of the former provisions since promises of good faith adherence to treaties
have a long history in treaty negotiations.
When article 300 was slated for inclusion in the treaty, it was a relatively noncontroversial article which was quickly adopted by consensus. In the negotiating
history of the LOSC, there is almost no discussion of the article.10 The article was
introduced in 1978 by Mexico and drafted to be article 1 of the LOSC in order
to set the cooperative tone for the remaining articles.11 The article was subsequently removed from its key introductory position in the treaty, renumbered,
and assigned to a treaty section on general provisions after a discussion by some
States of the need for compulsory adjudication under the treaty to address situations where there may have been an abuse of rights.12
At the time that the LOSC was concluded, all negotiating parties were familiar
with the concept of pacta sunt servanda (agreements must be kept) obligations
under the Vienna Convention on the Law of the Treaties13 requiring States to perform every treaty that is in force for a State in good faith.14 In the LOSC negotiations, States understood the practical implications of including an obligation for
both good faith and the exercise of freedoms in a manner not constituting an
abuse of rights. The negotiating Parties therefore agreed that:
7LOSC,
articles 94 and 117.
article 301.
9Ibid., article 304
10Myron Nordquist, Shabtai Rosenne, and Louis Sohn (eds.), United Nations Convention on
the Law of the Sea 1982: A Commentary, Volume 5 (Dordrecht: Martinus Nijhoff Publishers, 1989), 151153. (Citing as sources: A/CONF.62/L.25 (1978), IX Off.Rec. 182 (Mexico);
A/CONF.62/L.53/Add.1 (1980), XIII Off.Rec. 87 (President); A/CONF.62/L.58(1980), XIV
Off.Rec. 128 (President); A/CONF.62/WP.10/Rev.3* (ICNT/Rev.3, 1980, mimeo), Article300; A/CONF.62/L.78 (Draft Convention, 1981), article 300, XV Off. Rec. 172, 221.)
11 Ibid., 151.
12Ibid., 152.
13Vienna Convention on Law of Treaties, opened for signature 27 January 1988, entered
into force January 27, 1988, 1155 UNTS 331;
14Ibid., article 26; see also article 2(2), Charter of the United Nations, opened for signature
26 June 1945, entered into force 24 October 1945, 1 UNTS XVI.
8Ibid.,
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anastasia telesetsky
States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.15
Shabtai Rosenne, who had been Chairman of the Israeli Delegation to the Third
UN Conference on the Law of the Sea (UNCLOS III) and a member of the Drafting
Committee, observed in a commentary that article 300 contains highly subjective elements that should be read in light of article 297 concerning disputes on
the interpretation of the treaty.16 He added somewhat cryptically that, It is rare,
however, for provisions of this kind to be included in an international treaty, and
it would be idle to speculate on the possible interpretation and application of
this article. While Ambassador Rosenne was right that it may be rare for there
to be an explicit good faith article included in a treaty, the concept of good faith
is a core principle of public international law underlying all treaty negotiations.17
The following section discusses the role of good faith as a legal rule with a long
international legal pedigree as a prelude to arguing that good faith under the
LOSC requires verifiable State action towards implementing the treaty not just
best intentions to implement a treaty.
Good Faith in Public International Law
Good faith has a long lineage as a rule of international law. In a 1900 treatise
on international law, George Breckenridge Davis, an American military officer
and legal scholar, recognised two types of enforceable international legal rules:
those based on ethical and moral principles including specifically good faith
and those based on agreements by States.18 As a legal rule, good faith is, by some
accounts, the only enforceable duty that originates in the moral nature of a
State that has ever acquired a legal value.19 Article 300 reflects a joinder of these
two sources of international obligation with States explicitly agreeing to execute
in good faith their obligations under the treaty. Article 300 is a rare treaty provision specifically articulating a pre-existing duty that has been defined by the
interactions of States for centuries.
15LOSC, article 300.
16Nordquist, Rosenne and Sohn (eds.), United Nations Convention on the Law of the Sea
1982, 152.
17Louis Henkin, Constitutionalism, Democracy and Foreign Affairs (New York: Columbia
University Press, 1990), 62. (Describing pacta sunt servanda as the most important
principle of international law).
18George Breckenridge Davis, The Elements of International Law, with an Account of its
Origin Sources and Historical Development (New York: Harper and Brothers Publishers,
1900), 2728.
19William Edward Hall, A Treatise on International Law, 2nd edition (Oxford: Clarendon
Press, 1883), 58.
a proposal on uniform high seas fisheries management
453
Good faith has defined the formation and implementation of treaties. As Bin
Cheng notes in his treatise on international law, parties who are negotiating treaties are presumed to have meant to fulfill the obligations that they have agreed
upon.20 The principle of good faith means keeping the faith21 and performing
treaty obligations in the spirit of the treaty and not just the literal phrasing of
the treaty.22 Good faith performance requires parties to act both honestly and
loyally.23
The International Court of Justice understands that the legal principle of good
faith, obliges the Parties to apply [a treaty] in a reasonable way and in such a
manner that its purpose can be realized.24 What this means is that good faith
becomes the legal measure of determining whether parties have made an honest effort to perform their treaty obligations in light of the agreed upon purpose
of the treaty. Parties agree to specific treaty language in order to further a given
cooperative purpose and they rely on each other to actively fulfill individual
responsibilities in order to achieve treaty objectives. It is implicit in the promise
of good faith treaty execution that no State can unilaterally achieve the overarching treaty objectives alone. Good faith, therefore, requires something demonstrable from each participating State.
In practice, the concept of good faith depends on a mutual interdependence.
Emer de Vattel, a guiding voice in the creation of international law, recognised
this when he wrote in 1758 that:
There would no longer be any security, no longer any commerce between mankind,
if they [Nations] did not think themselves obliged to keep faith with each other, and
to perform their promise.25
His ideas echoed earlier ideas from Hugo Grotius in his 1625 work on The Law of
War and Peace. For Grotius, good faith is the social cement on which relations
20Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals
(Cambridge: Cambridge University Press, 2006), 107.
21 Ibid., 113.
22Ibid., 114.
23Ibid., 115.
24Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgement,
September 25, 1997, (1997) ICJ Reports 7, paragraph 142.
This same purpose-oriented standard had been previously echoed in domestic
cases involving interpretation of domestic obligations under international treaty.
See, for example, Tucker v. Alexandroff 183 U.S. 424, 437 (1902) (treaties should
be interpreted in a spit of uberrima fides (good faith), and in a manner to carry
out its manifest purposes.)
25Emerich de Vattel, The Law of Nations or Principles of the Law of Nature Applied to the
Conduct of Nations and Sovereigns (translated by C Fenwick) (Washington: Carnegie
Institute of Washington, 1916), chapter 12Of Treaties of Alliance and Other Public
Treaties; paragraph 163Obligation of Observing Treaties, 194.
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between civilised nations are built. To arrive at this conclusion he cites back to
the classical philosophers. Grotius wrote:
Good faith should be preserved, not only for other reasons but also in order that the
hope of peace may not be done away with. For not only is every State sustained by
good faith, as Cicero declares, but also that greater society of States. Aristotle truly
says that if good faith has been taken away all intercourse among men ceases to
exist.26
Subsequent international legal writers built on this image of good faith as
the necessary currency for State relations when they described good faith as the
great moral ligament which binds together the different nations of the globe.27
Again, the history of good faith, and in particular Vattels conception of performance, reflects an active engagement in the goals of a negotiated treaty.
Even though Grotius words were penned in light of a climate of war and
strife between nations, his words resonate strongly in the context of maintaining
peaceful relations between States. Where a State fails to fulfill its treaty obligation in good faith, it compromises the fragile relationship of trust. Without the
requisite connection of functional trust, States revert to national interests rather
than multilateral cooperation because States will not trust other States to fulfill their promises. Promises in treaties must be accompanied by some degree of
verifiable action if parties are to be deemed in compliance with their obligations.
Article 300 in the Law of the Sea is not simply a placeholder reflecting an aspiration for State action. It is operative language instructing States to act in a certain
prescribed way in relation to other States in order to achieve the purposes of
the treaty.
Whether a State is executing a particular obligation in good faith depends on
other members and arguably international organisations28 undertaking a review
of a States performance under its treaty obligation. This review depends on a
State doing something affirmatively to further treaty purposes as honestly, and
to the best of the ability of the party which made the promise.29 While it may not
be possible to judge the subjective mindset of a State, there are numerous other
objective factors that can be evaluated in thinking about whether a given State
is in good faith compliance with the Law of the Sea treaty. Some of these more
objective factors will be explored further below. For example, do States that fish
on the high seas have a good faith obligation to join RFMOs that have jurisdiction over a high seas areas? When States join RFMOs, do they have a good faith
26Hugo Grotius, The Law of War and Peace, (1625) (translated Francis W. Kelsey), (Oxford:
Clarendon Press, 1925), Book 3, Chapter 25, paragraph I-Admonitions to Peace.
27Robert Phillimore, Commentaries upon International Law, Volume 1 (Philadelphia:
T. & J. W. Johnson Law Booksellers, 1854), 154.
28LOSC, article 305 1(f).
29Codification of International Law, American Journal of International Law, 29 (Supp.
1935): 1, 981.
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455
obligation to ensure that the RFMO can be institutionally effective in protecting
a high seas area under its management? Do States have a good faith obligation to
each other to create domestic law for its fishing industry that reflects the specific
international obligations consented to by the State? Do States have a good faith
obligation to bring legal action against vessels that they have registered and that
have been alleged to have violated conservation and management measures?
Good Faith on the High Seas and LOSC
As a general provision of the Law of the Sea reflecting broader international legal
principles, the obligation to act in good faith has only been invoked two times
by parties to the Law of the Sea. Both of these disputes involved a contested high
seas fishery. In 1999, in the Southern Bluefin Tuna Case,30 New Zealand and Australia claimed Japans unilateral experimental fishing violated article 300 because
it failed to incorporate adequate conservation measures. Specifically, the plaintiff
States argued that Japan had failed in good faith to execute the underlying obligations in article 64 and articles 116 through 119 of the LOSC. Japan responded
by claiming that Australia and New Zealand were also in violation of article
300 by committing an abuse of right31 and committing acts redolent of bad faith
including engaging in fishing practices with large takes of juvenile fish and failing
to consult with the Japanese government under the Convention for the Conservation of the Southern Bluefin Tuna.32
Japan further argued that it was not in breach of good faith obligations under
article 64 and articles 116 through 119. From Japans perspective, the obligation
under article 64 on highly migratory species only required parties to regionally
or globally cooperate and Japan was a member of various regional conservation
efforts.33 Moreover, from Japans perspective, articles 116 through 119 did not
establish any specific cooperation requirements for conservation.34
In its order, the International Tribunal of Law of the Sea (ITLOS) did not analyze whether the parties had complied in good faith under article 300 with their
obligations under the LOSC. In fact, no mention of good faith was made in the
30Southern Bluefin Tuna Cases (New Zealand v. Japan), ITLOS Case No. 3, Request for the
prescription of provisional measures submitted by New Zealand, paragraph 25, July30,
1999; Southern Bluefin Tuna Cases (Australia v. Japan), ITLOS Case No. 4, Request for
the prescription of provisional measures submitted by Australia, paragraph 25, July30,
1999.
31 Response and counter-request for provisional measures submitted by Japan, Southern
Bluefin Tuna Cases (New Zealand v. Japan), Southern Bluefin Tuna Cases (Australia v.
Japan) August 6, 1999, paragraph 69.
32Ibid., paragraph 70.
33Ibid.
34Ibid.
456
anastasia telesetsky
order regarding provisional measures except for citations to the parties submissions. Instead, the Court opined that under article 64 and articles 116 through 119
of the LOSC, State Parties have a duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species.35 What
it means to fulfill this duty in good faith was never explicitly discussed in the
order for provisional measures.
The Annex VII Arbitral Tribunal that subsequently examined issues of jurisdiction and admissibility on the South Bluefin Tuna case had no occasion to review
whether there had been a breach of article 300 since Australia and New Zealand had withdrawn their claim of bad faith. During oral hearings, New Zealands
counsel indicated that article 300 was only being cited as relevant to the interpretation and application of the substantive articles at the center of the dispute36
and not as an independent obligation. The Arbitral Tribunal did not weigh in
on the issue of whether Japan was in breach of article 300, but simply observed
that the possibility for an article 300 claim remained open. In the paragraph
addressing article 300, the Tribunal seemed to have set a high standard for future
claims that might be reviewed by an Arbitral Tribunal or ITLOS. As the tribunal
observed:
...there might be instances in which the conduct of a State Party to LOSC and to a
fisheries treaty implementing it would be so egregious, and risk consequences of such
gravity, that a Tribunal might find that the obligations of LOSC provide a basis for
jurisdiction, having particular regard to the provisions of Article 300 of LOSC.37
While this standard has not been tested by any subsequent tribunal, the callous
disinterest of some open registry States to enforce conservation measures against
vessels flying their flags of convenience might rise arguably to the level of flagrancy that the Arbitral Tribunal contemplated.
The only other occasion that article 300 has been invoked in a state adjudication is in the Swordfish case between Chile and the European Community. Like
Australia and New Zealand in the Southern Bluefin Tuna case, Chile argued that
the European Community was in breach of article 300 because of their failure to
comply with articles 64 and articles 116 through 119 in ensuring swordfish conservation.38 The European Community also invoked article 300 as a standard to
35Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), August 27, 1999,
ITLOS Cases No. 3 and 4, Order, paragraph 48.
36First Round Presentation of Australia and New Zealand, volume II, 170 (May 8, 2000),
http://www.worldbank.org/icsid/bluefintuna/0508icsi.pdf.
37Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Award on Jurisdiction and Admissibility, (Arbitration, August 4, 2000).
38Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in
the South-Eastern Pacific Ocean, International Tribunal Law of the Sea (Chile/European
Community), December 20, 2000, ITLOS Case No. 7, paragraph 3(c).
a proposal on uniform high seas fisheries management
457
measure whether Chile was in compliance with convention obligations under
article 87, 89, and articles 116 through 119.39 The European Union40 and Chile
subsequently settled their dispute41 so the ITLOS tribunal had no occasion to
evaluate the meaning of good faith within article 300.
Good Faith in Article 300 and the Affirmative Actions
of Fishing States
While the term good faith has not been defined in the Law of the Sea and may
be difficult to define as a matter of customary law, the concept requires marine
protection that exceeds a least common denominator approach to marine governance. This chapter contends that good faith requires that States do more than
simply refrain from certain environmentally damaging activities. States also have
an affirmative obligation to fulfill...the obligations assumed under the LOSC
which requires them to proactively engage in activities that are necessary for
ex ante protection and preservation.
The interpretation of good faith as a proactive duty is reasonable under the
Vienna Convention on Law of the Treaties. Article 31 of the Vienna Convention on
Law of the Treaties requires treaties to be interpreted according to the ordinary
meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.42 If we look at the ordinary meaning of good faith,
the term good faith, in addition to its application in public international law
described above, has also been extensively employed in domestic law as a proactive rather than a reactive duty. Civil law states find a good faith duty during
both contract formation and performance.43 Common law states apply a good
faith duty applicable to contract performance and contract enforcement.44 While
treaties are not private law contracts, the private law concept of good faith with
its emphasis on execution and performance in both civil and common law states
provides a useful analogy for treaty interpretation. Just as contract performance
generally requires verifiable action, so too does the good faith execution of
a treaty.
39Ibid., paragraph 3(g).
40Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in
the South-Eastern Pacific Ocean, International Tribunal Law of the Sea (Chile/European
Union), December 16, 2009, ITLOS Case No. 7, Order 2009/1, paragraph 9.
41 Ibid., paragraph 12.
42Vienna Convention on Law of the Treaties, supra note 13.
43Paul Powers, Defining the Indefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods, Journal of Law and Commerce
18 (1999): 333353, 337.
44Ibid., 340.
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anastasia telesetsky
Good faith in article 300 of the LOSC plays a key functional role in the execution of States treaty obligations. It sets the standard of behavior for States as they
proactively cooperate to create governance mechanisms which will serve the
articulated objects and purpose of the LOSC. This interpretation of the meaning
of good faith is further supported by the use of the active verbal phrase shall
fulfill in article 300 to indicate what parties are expected to accomplish. The
ordinary meaning of fulfill is to make something happen or to do something as
promised or expected.45 It is a transitive verb that requires both a subject and an
object. If the drafters of the LOSC had not wanted States to take a more proactive
role in achieving the protection and preservation of the marine environment, the
drafters might have chosen language instead indicating that parties must refrain
from acting in bad faith in implementing the treaty. By choosing the phrase
shall fulfill in good faith, the drafters were emphasising an obligation that States
act affirmatively in creating a legal order for the seas that contributes to the preservation and protection of the high seas.
High Seas Obligations Underlying Article 300
Recalling Ambassador Rosennes remarks that it would be idle to speculate on
the possible interpretation and application of article 300,46 this paper disagrees
with the proposition that one must wait for a formal judicial interpretation of the
article before the article can be effectively invoked to challenge current substandard high seas fishing practices by members of the LOSC. States have clear good
faith obligations under the LOSC to be proactive agents. Article 117 assigns States
the obligation to take, or to co-operate with other States in taking such measures
for their respective nationals as may be necessary for the conservation of the
living resources of the high seas.47 Whether a State decides to take or to cooperate, both treaty words require action on the part of a State. Under article 118,
parties further agree where there is fishing of either identical living resources, or
different living resources in the same area to enter into negotiations with a view
to taking the measures for the conservation of the living resources concerned
through subregional or regional fisheries organisations.48 Entering into negotiations is a proactive obligation requiring States to take verifiable steps.
Finally, the parties agree under article 119 to take measures...to maintain or
restore populations of harvested species at levels which can produce the maximum
45Cambridge Academic Content Dictionary (New York: Cambridge University Press, 2009),
383.
46Nordquist, Rosenne and Sohn (eds.), United Nations Convention on the Law of the Sea
1982, 152.
47LOSC, article 117.
48LOSC, article 118.
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459
sustainable yield.49 Leaving aside the controversy over whether maximum sustainable yield is an appropriate conservation standard, it is clear that article 119
requires parties to actively manage fish stocks based on scientific evidence and
qualified by various other environmental and economic factors. Likewise, parties are expected to collect and exchange on a regular basis through competent
international organizations an array of data including available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks.50 As with article 117 and 118, States must demonstrate some
affirmative steps in order to comply with the text of article 119.
In addition to these high seas specific obligations, all parties are generally
required to protect and preserve the marine environment during both their
marine and non-marine activities.51 Like article 300, this section has been
underutilised as a measure of State compliance perhaps in part because of its
generality. ITLOS has specifically articulated conservation of living resources
as an element in the protection and preservation of the marine environment
thereby linking high seas conservation commitments to marine environmental
protections.52
In spite of relatively clear obligations to protect and preserve the marine
environment including the conservation of living resources, not all flag States
are actively fulfilling in good faith their high seas treaty obligations. In 2005, the
Australian government released a report, drafted by consultants with previous
experience on board commercial high seas fishing vessels, addressing the relationship between illegal, unreported, and unregulated (IUU) fishing and flags of
convenience.53 What they observed was that Panama, Honduras, and St. Vincent
and the Grenadines were among the States with the highest registrations of largescale fishing vessels engaged in high seas fishing and that all of these States have
been identified as States whose vessels have been or are potentially engaged in
IUU fishing.54 Other States operating high seas vessels also include Bolivia, Georgia, Sierra Leone, and Cambodia, all States that have been accused of IUU fishing
of tuna in the Atlantic Ocean.55
49LOSC, article 119.
50Ibid.
51 LOSC, article 192
52Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), August 27, 1999,
ITLOS Cases No. 3 and 4, Order, paragraph 70.
53Matthew Gianni and Walt Simpson, The Changing Nature of High Seas Fishing (Canberra: Australian Department of Agriculture, Fisheries and Forest, International Transport Workers Federation, and World Wildlife Fund, October 2005).
54High Seas Task Force, Closing the Net: Stopping illegal fishing on the high seas (Governments of Australia, Canada, Chile, Namibia, New Zealand, and the United Kingdom,
WWF, IUCN and the Earth Institute at Columbia University, 2006), 38.
55Ibid.
460
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Potential Breaches of Article 300: Institutional and Legal Factors
In order to explore whether States are fulfilling their good faith obligations
under the LOSC, this paper explores a spectrum of factors that might be considered in determining whether a given State is in compliance with article 300.
The good faith factors examined by the remainder of this section include membership of certain States in RFMOs, participation by States in creating effective
RFMOs, and promulgation of domestic laws to control fishing vessels on the high
seas. The sections below are intended as general observations and not as specific
allegations that any given State described in the section is violating article 300.
The illustrations of specific States who do not participate in regional arrangements or have not implemented domestic laws reflecting their international obligations are offered simply as examples that are indicative of larger multilateral
ocean governance issues. The observations, in and of themselves, may not be
sufficient to prove a legal violation of article 300 and, as discussed above, there
is little guidance from the international tribunals on this matter. As McDorman
aptly observed in his analysis of the 1985 Pacific Salmon Treaty, the ability to
demonstrate either the presence or absence of a good faith effort under a treaty
regime is fraught with difficulties.56 Even so, an interpretive body like ITLOS
could regard any combination of the following factors as objective measures that
might signal breach of good faith under article 300.
Lack of Membership in RFMOs
Article 118 provides that parties to the LOSC shall, as appropriate, cooperate to
establish sub-regional or regional fisheries organizations. Article 197 reaffirms this
obligation by calling for states to cooperate on a global basis and, as appropriate,
on a regional basis, directly or through competent international organizations
to create rules, standards and recommended practices and procedures...for
the protection and preservation of the marine environment. Yet, certain States
are operating outside of this cooperative legal framework by failing to participate
actively in RFMO institutions necessary for the conservation of living resources.
While Article 118 includes the qualifying language of as appropriate, it logically
follows that a State that permits its flagged vessels to fish within a given high seas
region should be a member of the appropriate RFMO. This is not always the case.
For example, Vanuatu, which is a member of the Convention on the Conservation
56Ted McDorman, Symposium: A Canadian View of the Canada-United States Salmon
Treaty: The International Legal Context, Journal of International Law and Dispute Resolution, 6 (1998): 85.
a proposal on uniform high seas fisheries management
461
of Antarctic Marine Living Resources57 but not a member of the RFMO,58 has
recently not enforced conservation measures against its flagged vessels fishing
for krill in the Antarctic convention area. In fact, one vessel flagged to Vanuatu, allegedly collected between 2003 and 2005 approximately one quarter to
one-third of the krill harvest in the Convention area, with no oversight from
Vanuatu.59 This egregious flaunting of the RFMOs efforts to conserve Antarctic resources triggered the RFMO to subsequently require scientific observers
onboard all krill ships operating within the Convention area.60
Vanuatus cautionary tale suggests that formal membership in RFMOs matters since it provides an essential institutional space for accountability among
resource users. For purposes of this review, the membership list of 11 RFMOs61
were examined and compared to the 38 States that have signed the FAO Compliance Agreement to promote conservation on the high seas and to the 14 States
that have been identified as Flags of Convenience States regularly operating on
the high seas.62 There is some overlap between the States signing the Compliance
Agreement and qualifying as Flags of Convenience States (see Belize, Cyprus,
Georgia, and Mauritius). While a total of 48 states are in this data set, not all of
these States are signatories to the LOSC and so would not necessarily be subject
to direct good faith obligations regarding cooperation through participation in
regional or global fishing institutions under articles 118 and 197, albeit they might
be subject to customary international obligations.
From this narrow data set of a number of countries that have made a public
committment to conservation on high seas, not unsurprisingly, there emerges a
lack of full membership in any RFMO on the part of a number of States including
Benin, Bolivia, Georgia, Mongolia, Mozambique, Myanmar, St. Kitts & Nevis, and
57Convention for the Conservation of Antarctic Living Marine Resources, opened for signature 20 May 1980, entered into force 7 April 1982, 1329 UNTS 47 (CAMLR Convention).
58States party to the Convention but not Members of the Commission, http://www
.ccamlr.org/pu/e/ms/contacts.htm#States.
59Ebol Rojas, Antarctic Krill Fishery Observers should be Mandatory, The Mail Buoy, 9/4
(January 2007), published by the Association for Professional Observers, available at,
http://apo-observers.org/mailbuoys/2007-1.pdf.
60See generally, Commission for Conservation of Antarctic Marine Living Resources, Conservation Measure 5106(2010) (General measure for scientific observation in fisheries
for Euphausia superba)
61 CCAMLR, IATTC, ICCAT, IOTC, NAFO, NEAFC, WCPFC, GFCM, CCBST, SEAFO,
SPRFMO,
62Gianni and Simpson, The Changing Nature of High Seas Fishing, 1314. (Listing as flags
of convenience-Belize, Bolivia, Cambodia, Cyprus, Equatorial Guinea, Georgia, Honduras, Marshall Islands, Mauritius, Netherlands Antilles, Panama, St. Vincent and the
Grenadines, Sierra Leone, Vanuatu). The State of the Netherlands Antilles was not
evaluated for its membership in RFMOs because it was dissolved in 2010. Mongolia
was substituted into the list for comparison purposes.
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anastasia telesetsky
St. Lucia.63 While a number of LOSC parties in this data set lack both financial
resources for membership as well as stable governance promoting a rule of law
culture, some of these States continue to actively jeopardise high seas conservation and management measures through the availability of their open registries
to vessels engaged in IUU fishing.
These are not the only States failing to participate actively in implementing
LOSC obligations. From a review of the 164 parties to LOSC, there are numerous
other States that do not participate as members in any of the RFMOs reviewed
for this chapter.64 There may be a number of reasons for failing to participate.
Many of these States may not issue high seas fishing permits and so would not
be expected to participate in regional high seas efforts. A large number of the
remaining States like Liberia with its open registry may lack government capacity to participate in the regional institutions even though Liberian flagged vessels operate in the high seas. Other States may simply be failing to participate in
good faith such as Vietnam who flags, according to some accounts, 3,000 high
seas fishing vessels.65
Failure to participate as a member in an RFMO can be indicative of a lack of
good faith on the part of States with large high sea fishing fleets as well as States
that flag high seas fleets without adequate State interest or resource capacity to
monitor those fleets. This factor, in and of itself, may not be sufficient to suggest
that a LOSC party is in breach of Article 300 obligations but still might be indicative of a larger pattern of practice by a State of willfully or recklessly avoiding
obligations to cooperate. Equally troubling, from the perspective of LOSC implementation of high seas obligations, are the formation of RFMOs that are institutionally incapable of managing high seas living resources because they have not
been given adequate powers by their members to ensure that high seas conservation measures are effective in meeting agreed upon conservation objectives.
Good Faith Conservation EffortsRFMOs Leaders and Laggards
The preceding section suggested that failure to participate in an RFMO for a State
with active high seas fishing vessels raises issue about good faith compliance with
articles 118, 119 and 197. Since most States that participate in high seas fisheries
63St. Kitts and Nevis is a cooperating non-member in the Northeast Atlantic Fisheries
Commission.
64See, for example, Antigua and Barbuda, Armenia, Bahrain, Bangladesh, Belarus, Bosnia
and Herzegovina, Botswana, Burkina Faso, Cameroon, Chad, Congo, Cuba, Djibouti,
Dominica, Dominican Republic, Guinea-Bissau, Grenada, Guyana, Haiti, Jamaica, Jordan, Iraq, Laos, Lesotho, Liberia, Malawi, Maldives, Mali, Nepal, Paraguay, Saudi Arabia, Serbia, Slovakia, Somalia, Suriname, Switzerland, Togo, Qatar, Uganda, Vietnam,
Yemen, Zambia, and Zimbabwe
65France to Help Vietnams Offshore Fishing Industry, February 18, 2011, http://
vietnamseafoodnews.com/?p=793.
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463
are members of some RFMO, the more pertinent question is whether RFMO
member States have an obligation to create administrative conditions within an
RFMO to enable it to succeed in its high seas environmental protection efforts.
Current RFMO conservation policies are as diverse as the seas are in habitat.
Some organisations have robust programs which heavily condition activities in
high seas regions and provide specific means for implementation, while other
RFMO high seas programs provide little regulatory guidance and no implementation. This fragmentation of RFMO approaches can be problematic in determining
whether States are actually making a sufficient good faith effort to protect and
preserve the high seas environment. Not infrequently, RFMOs have overlaps in
their membership; good behaviour by a State in one RFMO may not be mirrored
by the same behavior in another RFMO.
At one end of the spectrum of high seas conservation efforts are some of the
newest RFMOs that attempt to merge best available science with policy-making
such as the Western and Central Pacific Fisheries Commission (WCFPC). The
WCFPC was created by the Convention for the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean.66 As the
name of the Convention makes explicit, the focus is on highly migratory fish
stocks and not on general marine living resources. Even though the conservation measures under the treaty are linked to migratory fish populations,67 the
parties in pursuing an ecosystem protection approach agreed to adopt measures
to minimise...catch of non-target species, both fish and non-fish species and
impacts on associated or dependent species, in particular endangered species
and to protect biodiversity in the marine environment within the Convention
Area.68
The Commission promotes harmonized conservation standards between the
high seas and ocean regions under national jurisdiction.69 Additional harmonisation is expected where fishery management organisations overlap to avoid the
duplication of measures with respect to species in that area which are regulated
by both organizations as well as implicitly avoid conflicts between RFMO
66Convention for the Conservation and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean, opened for signature 5 September 2000, entered
into force 19 June 2004 available at, http://www.wcpfc.int/system/files/documents/
convention-texts/text.pdf.
67Ibid., article 3(3) This convention apples to all stocks of highly migratory fish within
the Convention Area except sauries. Conservation and management measures under
this Convention shall be applied throughout the range of the stocks, or to specific areas
within the Convention Area, as determined by the Commission.
68Ibid., article 5(e) and 5(f).
69Ibid., article 8(1) (Conservation and management measures established for the high
seas and those adopted for areas under national jurisdiction shall be compatible in
order to ensure conservation and management of highly migratory fish stocks in their
entirety.)
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s tandards.70 Specifically, the WCFPC seeks to harmonise its efforts with the InterAmerican Tropical Tuna Commission on a consistent set of conservation and
management measures.71 Even though the focus of most of the RFMO conservation measures is on highly migratory stocks, parties are expected to ensure that
harmonised measures taken to protect stocks do not result in harmful impact
on the living marine resources as a whole.72
The WCFPC designates a number of criteria on which to base high seas conservation measures including quantities of harvest, previous effort of fishermen,
regions for fishing, seasons for fishing, size of fish to be taken, and types of fishing gear and technology which may be used.73 Each member of the Commission
is expected to keep a registry of fishing vessels including information about the
type of fishing methods, the fishing authorisation of the boat, and the carrying
capacity of the boat which can be useful in determining whether conservation
measures have been complied with.74 To decide total allowable catch for fishery States, the Commission as a whole is expected to take into consideration
the respective contributions of participants to conservation and management
of the stocks and the record of compliance by the participants with conservation and management measures.75
Compliance is based on parties self-reporting information about how conservation measures have been implemented.76 In addition, the Convention contemplates high seas boarding and inspection of its members fishing vessels by
authorised inspectors.77 Parties agreed in December 2006 to specific boarding
and inspection procedures.78 A number of States including Australia, the United
States, and the Cook Islands have submitted to the commission descriptions of
agencies and their vessels that will be conducting high seas enforcement.
On the other end of the spectrum in terms of conservation efforts are a combination of weak RFMOs that are unable to enhance environmental performance
and RFMOs that seem to lack political will. Among the weaker RFMOs is the
Northeast Atlantic Fisheries Organization (NEAFC) that proposes conservation
measures within the Regulatory Area which includes three high seas areas
70Ibid., article 22(3).
71 Ibid., article 22(4).
72Ibid., article 8(2)(e).
73Ibid., article 10(2).
74Ibid., article 24(4); Ibid., Annex IV.
75Ibid., article 10(3).
76Ibid., article 23(1).
77Ibid., article 26(1).
78Western and Central Pacific Fisheries Commission Boarding and Inspection Procedures, Conservation and Management Measure 200608, available at, http://www
.wcpfc.int/system/files/documents/conservation-and-management-measures-andresolutions/high-seas-boardinginspection/Conservation%20and%20Management
%20Measure-2006-08%20%5BHSB%2526I%20Procedures%5D.pdf.
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465
including the Reykjanes Ridges, the Banana Hole in the Norwegian Sea and
the Barents Sea Loophole. There is, however, no agreed upon arrangement
for members to enforce these measures within the NEAFC high seas area.79 In
2006, the FAO estimated that the high seas bottom fisheries generated 60,000
tons of legally captured marine fish.80 In 2005, 150,000 tons of illegally captured
Northeast Arctic cod and haddock were extracted from the Barents Sea.81 The
NEAFC has agreed to a number of specific conservation and management measures including a ban on discards on the high seas, a reduction of fishing efforts
particularly for certain species, and the identification of vulnerable marine ecosystems.82 In 2007, the NEAFC banned gill nets in water deeper than 200 meters,
closed areas where cold water corals might be impacted by fishing activity, and
reduced fishing effort by 35 per cent for deep sea species.83 It remains to be seen
whether the member States within the NEAFC will comply with any of the measures in good faith particularly within the Regulatory Area.84
The NEAFC has already hit roadblocks with ensuring compliance from member States. As the review panel for the NEAFC observed in 2006, at least one
NEAFC party has not complied with obligations to have inspectors or inspection
vessels in the Regulatory Area, despite having a significant fishing presence of
more than 10 fishing vessels.85 The situation in the NEAFC raises the questions
of whether under LOSC Article 300, mere membership in an RFMO is enough to
meet good faith obligations to protect and preserve the marine environment.
As suggested above, the LOSC good faith standard seems to demand more than
pro forma membership but rather necessitates active participation in the conservation and preservation efforts of an RFMO.
The recurring limitations of existing RFMOs as high seas conservation and
management institutions due to their lack of internal institutional capacity
raise issues about whether States as RFMO members are in good faith executing
their LOSC obligations. It seems that even in the most progressive RFMOs, the
79Bensch and ors, Worldwide Review of Bottom Fisheries, The Atlantic Ocean and Adjacent
Seas, 9.
80Ibid., 21.
81 Ibid., 22.
82Northeast Atlantic Fisheries Commission, Press Release, November 2009, www.neafc
.org/system/files/press-release-final.pdf.
83Response of the North East Atlantic Fisheries Commission, to the Secretary-General
of the UN on actions taken pursuant to paragraphs 8384 of resolution 61/105, www
.neafc.org/system/files/response_to_un_unga_61_105.pdf.
84Pew Environment Group, NEAFC Protects Deep-Sea Sharks but Falls Short for Other
Species and Habitat, PR Newswire, November 11, 2011, http://www.marketwatch
.com/story/neafc-protects-deep-sea-sharks-but-falls-short-for-other-species-andhabitats-2011-11-11.
85Performance Review Panel Report of the North East Atlantic Fisheries Commission,
(November 6, 2006), 39.
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institutional framework fails to value shared environmental integrity over concerns of individual state sovereignty. Majority conservation interests may be sacrificed for minority development interests through specific treaty measures. For
example, the CCAMLR Convention, whose Commission has been considered one
of the more effective RFMOs, provides unwarranted flexibility for its members
in conforming with regional conservation measures. While most conservation
measures go into effect 180 days after the Commission has notified its members,
the Convention allows members to opt out of measures that a Party is unable
to accept...in whole or in part.86 States do not need to supply a scientific or
economic justification under the treaty to reject a measure. Other parties can
then presumably follow suit by asking the Commission to reconsider the conservation measures. This flexible participation mechanism raises issue about good
faith. While it may seem strategic to ensure that RFMOs can remain flexible by
adapting to member needs, RFMO members should not be able to undermine
the ability of the institution to achieve its conservation and management goals
without having to provide reasonable justification to other members.
What this review of RFMO measures suggests is a need to expand the reach of
global conservation law across all marine habitats and to harmonise both information collection and fishing authorisation across all high seas regions regulated by
RFMOs as well as those high seas areas remaining outside of operational RFMOs.
Joining an RFMO should not by itself be considered a good faith measure of complying with the specific high seas LOSC obligations for conservation even though
it marks a public willingness on the part of a State to cooperate. Something more
is required. While it is not the purpose of this chapter to define when particular
participation can be deemed good faith performance of treaty obligation, it can
be observed that individual members of RFMOs have at least some good faith
obligation to ensure that their institutions have the capacity to implement agreed
upon conservation measures and that members cannot interfere unilaterally with
the effective implementation of conservation measures. Most RFMO members
have done remarkably little to jointly address issues of restocking, overcapacity of authorised fleets, and over-allocation of fishing quotas. Perhaps because
membership in a given RFMO depends on voluntary State consent, excessive
deference is given to each sovereign State members right to regulate certain
aspects of high seas fishing. To the extent that a given RFMO has not been effective as an institution in curtailing excess fishing within the regulatory area of the
RFMO, it is fair to say that the RFMO members may not be pursuing their LOSC
obligations in good faith if they have not ceded adequate institutional capacity
to a RFMO to enforce negotiated conservation measures designated under Article118 of the LOSC. Depending on the RFMO, this may be a question of providing
enforcement vessels to RFMO operations or providing adequate funding for an
86CCAMLR Convention, article IX(6)(c).
a proposal on uniform high seas fisheries management
467
RFMO to pursue monitoring and surveillance activities as well as possible legal
action against a member who in breach of RFMO conservation and management
commitments.
Failure to Promulgate Domestic Laws That Fully Implement
LOSC Obligations
In terms of protecting the marine environment, international fishery law and
regional policies are often only as effective as a States domestic law regarding
enforcement of internationally negotiated conservation and management measures. LOSC Article 117 provides that all States have an obligation to take...such
measures for their respective nationals as may be necessary for the conservation
of the living resources of the high seas.87 One means of taking measures that
implicate the activities of nationals is to pass domestic legislation that indicates
the duties and responsibilities of nationals to adhere to internationally or regionally negotiated conservation and management measures. The FAO found in a
survey from 2004 that less than half of the countries who reported themselves
as high seas fishing nations are exerting effective control over high-seas fishing
vessels flying their flags.88 This lack of control may arise where States lack any
comprehensive domestic legal regime governing high seas fishing activity. This is
particularly true of States classified as countries issuing flags of convenience.
According to a study conducted in 2006, around 90 States did not have easily identifiable domestic laws requiring specific authorisation for flagged vessels engaged in high seas fishing.89 The findings of the study were particularly
troubling because a quarter of the countries without clear high seas regulations
were signatories to the Straddling Stock Agreement requiring States to control its
vessels through licenses and permits.90 Finding domestic legal rules is surprisingly
87LOSC, article 117.
88Illegal Fishing and High Seas Fisheries, Focus on the Issues, 2004, http://www.fao.org/
newsroom/en/focus/2004/47127/article_47140en.html.
89Andrea Gowdy, Evaluating Flag State Performance: Part III: Research Results (Indicative Evaluation), prepared for Organisation of Economic Cooperation and Development
High Seas Task Force by OceanLaw Information and Consultancy Services (February
2006), http://www.oceanlaw.net/projects/consultancy/pdf/Flag%20State%20Part%20
III.pdf
90The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December Relating to the Conservation and Management
of Stradling Fish Stocks and Highly Migratory Fish Stocks, 1995, opened for signature
4 August 1995, entered into force 11 December 2001, 2167 UNTS 3 (UN Fish Stocks Agreement), Article 18(3)(a). The Bahamas, Barbados, Bulgaria, Cook Islands, Fiji, Guinea,
India, Iran, Kenya, Kiribati, Liberia, Maldives, Marshall Islands, Mauritius, Micronesia,
Monaco, Mozambique, Palau, Romania, St. Vincent and the Grenadines, Tonga, Trinidad and Tobago, Tuvalu, Ukraine, Uruguay may not have specific high seas permit legislation in spite of being signatories.
468
anastasia telesetsky
difficult since, there is no central database covering what each States fishery law
requires for high seas authorisation.91
In practice, a large proportion of the worlds States have no clearly mandated
high seas fishing authorisations required by their domestic code. Even for those
States that do require authorisation, the issuance of a permit may be a routine
form filling exercise with no review.92 Yet, every State is entitled under customary
international law and the Law of the Sea to fish on the high seas subject to some
conservation measures.93
Domestic legislation that implements international or regional conservation
obligations is critical because it provides a rule of law structure to enforce
restrictions on individual fishing vessels by ensuring there is a possibility of legal
accountability.94 Many States operate under outdated fisheries legislation. For
example, in Panama, the country is still largely dependent on a 1959 fisheries law
with some amendments.95 Unlike the United States who requires vessels flying its
flags to conform with the High Seas Fishing Compliance Act of 199596 by penalising high seas fishing vessels operating in contravention of international conservation and management measures, Panama only has an assortment of disconnected
regulations that focus piecemeal on addressing high seas fishery problems.97 It
can be argued that the lack of a comprehensive domestic framework to regulate
high seas fishing by Panamanian flagged vessels indicates a good faith failure on
the part of Panama to meet its high seas obligations to other States to protect
and preserve the marine environment. Other States have recognised Panamas
failure to control its flagged vessels; the United States has listed in reports to the
U.S. Congress the State of Panama as a State that has failed to prevent IUU fishing
on the high seas.98
91 Even though the FAO has a database FISHLEX, it only covers coastal State requirements for foreign fishing vessels; the United Nations Division for Ocean Affairs and Law
of the Sea provides no organised coverage of domestic laws.
92John Pope, Input and Output Controls, in Kevern L. Cochrane and Serge M. Garcia
(eds.), A Fishery Managers Guidebook (Hoboken: John Wiley and Sons, 2009), 225.
93LOSC, article 116.
94Individual crew members and fishing vessels cannot be held directly accountable under
international adjudication since there is no jurisdiction over these non-state parties.
95Cassandra de Young and Max Aguero, Review of the State of World Marine Capture Fisheries Management: Pacific Ocean, Food and Agriculture Organization, Fisheries Technical
Paper, 488/1 (Rome: FAO, 2007).
96High Seas Fishing Compliance Act 16 USC 5501 et seq.
97See, for example, Resolution No. 86 Medidas sobre los aparejos de pesca en alta mar.
(Resolution on Fishing Equipment for the High Seas requiring Panamanian flagged vessels to keep their fishing equipment attached to the fishing vessels).
98U.S. Department of Commerce, Implementation of Title IV of the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006: Biennial Report
to Congress January 2011, 68 www.strtrade.com/wti/2011/january/.../biennial_report_to_
congress.pdf.
a proposal on uniform high seas fisheries management
469
Land-locked Mongolia, which has been recently registering numerous vessels,
has a maritime law which simply observes on the issue of conservation that,
extraction of marine resources and fishing by vessels shall be regulated by the
State administrative central body in charge of those matters on the basis of special permission from a competent international organization.99 Nothing further
is explained in the act regarding what international organisation might issue the
requisite permission and there is no further discussion of regulations implementing this act. To avoid any explicit description of conservation and management
measures required of Mongolian flagged ships, the Act instead provides direction
that where international law conflicts with Mongolian law, the international law
will prevail.100 The burden of proof shifts back to the international community
to prove that Mongolias law is inadequate in light of its responsibilities as a flag
State. Penalties for breach of the law are as provided in the legislation with no
further explanation of what those penalties might include.101
But States that provide flags of convenience are not alone in the inadequacy
of domestic legislation to address conservation and management concerns on
the high seas. Less concerning than a complete absence of laws but equally concerning from an international implementation perspective are comprehensive
fishing laws that fail to require actors to conform with agreed-upon international
standards. While the failure to incorporate specific international standards into
domestic legislation may not rise to the level of a breach of good faith,102 it still
raises legitimate issues about whether a State is being reasonable in executing its
international obligations.
The Permanent Court of International Justice (PCIJ) disagrees with publicists
who find no obligations to change domestic law to match internationally accepted
standards. In a 1925 opinion, the Court found it self evident that a State which
has contracted valid international obligations is bound to make in its legislation
such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken.103 The PCIJs position is a sensible position since international law
relies heavily on translating international obligations into domestic law in order
to control behavior of individuals and corporationsthe most likely perpetrators
of fishery crimes. As with the other good faith factors discussed above, a lack of
99Maritime
Law of Mongolia, Sea Exploitation, May 28 1999 Ulaanbaatar, article 5, faolex
.fao.org/docs/ texts/mon62067.doc.
100Ibid., article 2.
101 Ibid., article 22.
102Ian Brownlie, Principles of International Law, 4th edition (Oxford: Oxford University
Press, 2008), 36. Brownlie observes that there is a general duty to bring internal law
into conformity with obligations under international law. However, in general a failure
to bring about such conformity is not in itself a direct breach of international law.
103Advisory Opinion No. 10, Exchange of Greek and Turkish Populations, (1925) PCIJ
(series B) No. 10, 20.
470
anastasia telesetsky
domestic law to implement international or regionally negotiated standards may
not per se raise an issue of Article 300 compliance.104 Yet, this factor may in certain instances be probative of the intent of a State not to comply fully in practice
with its obligations under Article 117, 118, or 192. Where a State has been urged
by the international community to consider revising its domestic laws to conform
with international standards or to strengthen its domestic enforcement provisions as a flag State and the State continues to equivocate in both making and
taking measures for their respective nationals,105 there may an argument that
there has been a breach of an Article 300 good faith obligation.
Conclusion
This chapter has argued that certain States may be in good faith violation of their
legal obligations to conserve high seas living resources depending on what factors one might use to measure good faith. In other words, some States could be
found in breach of their treaty or customary international legal duties under public international legal doctrines of State responsibility. But is this really a useful
conclusion when our subject is high seas fisheries and our objective is proper
multilateral management of living resources and the marine environment?
The doctrine of State responsibility has been of great intellectual interest
to public international law scholars and has been codified through the development of the Articles on State Responsibility106 which have slowly been incorporated into international jurisprudence. Focused on direct rather than vicarious
responsibility for environmental damage, a State may allege that another State
should be held accountable under the doctrines of State responsibility where the
defendant State has either breached a treaty that it has voluntarily consented to
or has breached an international obligation.107 From a purely legal perspective,
the doctrine of responsibility as a liability approach might be attractive to States
who are frustrated by soft law approaches. States whose fisheries governance is
plagued with corruption or just plain incompetency could be held liable for loss
and damage to the high seas commons that results from their failure to manage their vessels or nationals. After all, members of the international community
who are complying with their LOSC obligations are being financially damaged by
104Not all States would require additional domestic implementation of international obligations. Article 6 of the Republic of Koreas Constitution provides that ratified international obligations by the State have the same legal force in the Korean legal system
as domestic Korean law.
105LOSC, article 117.
106International Law Commission, Articles on State Responsibility, ILC Report, GAOR
A/56/10, 43365, (2001).
107Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment, 3rd Edition, (Oxford: Oxford University Press, 2009), 214215.
a proposal on uniform high seas fisheries management
471
foreseeable and avoidable harms committed by non-cooperative States who fail
to adequately regulate the behaviour of domestically flagged vessels.
To the extent that a case for State responsibility could be brought against a
State that, for example, condones chronic IUU fishing practices by failing to participate actively in RFMOs where its vessels operate or having robust legislative
sanctions to prevent IUU fishing, this approach will fail to provide an adequate
long-term remedy to the high seas management problems that States should be
seeking to solve. While the identification of rogue State actors is important to
establishing the legitimacy of public international law, establishing judicial finding of State responsibility, in and of itself, may not result in better management
of the high seas. The relationship between state responsibility and IUU fishing may be a subject of deliberation by ITLOS.108 Where a State has been found
responsible, it is expected to cease its wrongful conduct, promise not to engage
in the wrongful conduct, and make reparations.109 While this is a start, it is not
a long-term solution to rationally managing the behavior of non-state actors in
geographically disparate high seas fisheries.
Technical fixes agreed upon by most States that rely on centralised registering and monitoring of individual vessels may prove far more effective than any
legal strategy of assigning State responsibility. What is really needed to jump-start
reform of the current free-for-all high seas fisheries is a centralised high seas fishing system with one registry and one common market for licenses. This centralised decision-making model has not yet been pursued, in part, because of the
continued interest of States in asserting sovereign powers over their fishing fleets.
Yet, the principle of sovereignty is not rigid; it is adaptable to the circumstances
facing each State. All States are facing a crisis of the high seas as we lose viable
populations of species and States can choose to relinquish some portion of their
individual sovereign interests for a larger common good. While this chapter has
explored a number of possible standards for measuring good faith in relation to
conserving and managing high seas fisheries, a truly good faith effort to conserve
rapidly depleting living resources on the high seas will require bolder thinking
regarding global and regional cooperation than we have previously dared.
108International Tribunal Request for an Advisory Opinion Submitted by the SubRegional Fisheries Commission, Case No. 21 available at http://www.itlos.org/index
.php?id=252.
109International Law Commission, Articles on State Responsibility, articles 3031, articles3537.
Chapter twenty-one
The Legacy and Fate of Bluefin Tuna under
International Law
Emily A. Gardner*
Introduction
In 1923, renowned ichthyologists Jordan and Evermann dubbed bluefin tuna as
big game in every sense of the word.1 This majestic apex predator of the worlds
oceans is among the largest of the bony fishes, attaining lengths of up to ten feet
(c.3m) and weights as great as 1,500 pounds (c.690kg), although most individuals are somewhat smaller.2 In addition to being among the largest of the bony
fishes, bluefin tuna are also the most valuable. Individual fish can regularly command between US$2,000 and US$20,000.3 In January 2011 a single 754-pound
(342kg) fish recently brought in a then record US$396,000 in a Tokyo fish market, or, approximately US$526 per pound (US$1,147/kg).4 This record was recently
*William S Richardson School of Law, University of Hawaii at Manoa, USA. Bachelor of
Arts (Biology), University of Delaware; Master of Science (Zoology), University of Hawaii,
LL.M., J.D., University of Hawaii, University of California, Berkeley, School of Law.
1 David Starr Jordan and Barton Warren Evermann, American Food and Game Fishes (Garden City: Doubleday, 1908), 278282. The authors refer to bluefin tuna as the tiger of
the California seas, a living meteor, which strikes like a whirlwind, and when played
with a rod that is not a billiard cue or a club in stiffness, will give the average man the
contest of his life.
2Ibid.
3CBS News, The King of Sushi in Trouble, 60 Minutes, 7 September 2008, http://www
.cbsnews.com/stories/2008/01/11/60minutes/main3700644.shtml. The average price of
a single bluefin tuna is anywhere between US$2,000 and US$20,000. It all depends on
the size, the season, and the fat content-the fattier, the better.
4Giant Tuna Sells for Record $396,000 in Tokyo, Associated Press (Tokyo), 5 January
2011,http://www.cbsnews.com/stories/2011/01/05/world/main7215560.shtml?tag=mn
col;1st;8.
474
emily a. gardner
s urpassed in January 2013 when a 222kg bluefin tuna sold for the equivalent of
an astonishing 1.8 million U.S. dollars.5
Japan is unquestionably the worlds primary consumer of bluefin tuna and its
lucrative market has historically been the driving force behind most commercial
fisheries. Bluefin tuna are prized for use in sashimi. In this context, fish having a
higher fat content are considered to be the most desirable, and are, in turn, more
valuable. While Japan is the worlds top consumer and an active participant in
the fishery, a plethora of countries participate in the fishery to service Japans
seemingly insatiable market as well as growing markets in Asia, Europe and the
Americas where residents have been steadily developing a taste for sashimi. By
all accounts, bluefin tuna is not a significant source of protein for the worlds
population, but is more of a luxury food and an important component of Japanese culture.
Intensive fishing of bluefin tuna has resulted in the severe depletion of most
stocks. Technological advances together with increased knowledge about the
basic biology of the species are changing the face of the fishery and have led to
the development and use of certain aquaculture practices with the hope that they
will enhance the productivity of the fishery.
Capture-based aquaculture (CBA) of bluefin tuna, commonly known as tuna
farming or tuna fattening first emerged in Australia in the late 1980s and began
in the Mediterranean in 1997.6 It is now widely practiced around the world. The
FAO defines CBA as the practice of collecting seed materialfrom early life
stages to adultsfrom the wild, and its subsequent on-growing in captivity to
marketable size, using aquaculture techniques.7
Purse seine fisheries are the most common provider of bluefin tuna for CBA.
The purse seiners capture schools of younger or smaller tuna in the open ocean
and transfer them underwater into towing cages, which are then towed to a growout area. Transfer from the catch site to the on-growing area can take anywhere
from a few days to several weeks, depending on the distance involved, which can
be several hundreds of miles. Because CBA involves the underwater movement
5See, Patrick Boehler, Japan: Worlds Most Expensive Fish Sold for $1.8 Million, Time
Magazine, 7 January 2013, available at http://newsfeed.time.com/2013/01/07/japanworlds-most-expensive-fish-sold-for-1-8million/.
6Makoto Peter Miyake, Patrice Guillotreau, Chin-Hwa Sun, and Gakushi Ishimura, Recent
Developments in the Tuna Industry, Stocks, Fisheries Management, Processing, Trade and
Markets, FAO Fisheries and Aquaculture Technical Paper 543 (Rome: FAO, 2010), 35.
7Francesca Ottolenghi, Cecilia Silvestri, Paola Giordano, Alessandro Lovatelli and Michael
B. New, Capture-Based Aquaculture, the Fattening of Eels, Groupers, Tunas and Yellowtails
(Rome: FAO, 2004), 4. Although they are both considered forms of capture-based aquaculture, the term tuna farming refers more to the practice in which the overall weight
of small fish is substantially increased through culture periods of one to three years,
while tuna fattening entails the capture of larger juvenile fish and their culture for periods of a few months to increase their fat content, and, in turn, their economic return.
the legacy and fate of bluefin tuna under international law
475
of live tuna from purse seine nets into towing or farm cages, the collection of
accurate catch data has not proven possible, thereby rendering stock assessment
and management difficult.
From the time of their initial capture in the open ocean until the time of harvesting, bluefin tuna are fed a steady diet of sardines and other baitfish to attain
the desired fat content of sashimi and provide the greatest economic return. This
has reportedly led to the depletion of baitfish stocks in neighbouring areas.8 The
environmental effects of inputting large quantities of baitfish into ocean areas
where bluefin tuna are transported or on-grown have also been cause for concern, as have the potential risks to human health brought about by inappropriate
handling, the use of chemotherapeutants, and the presence of biological hazards
such as parasites, bacteria, viruses and biotoxins in various stages of production.9
Moreover, the continued taking of large numbers of juveniles, or seed from the
wild reduces natural recruitment and potentially stands to threaten the very existence of the fishery over time.
In addition to CBA, closed life-cycle aquaculture (CLA) of bluefin tuna appears
to be on the not too distant horizon. In 2009, Time magazine recognised an Australian companys ability to spawn bluefin tuna in landlocked tanks as the second best invention of the year.10 More recently, a Japanese company operating in
Croatia, Umami Sustainable Seafood, Inc., revealed its ability to naturally spawn
bluefin tuna and hatch viable larvae from eggs in captivity, with the companys
ultimate goal of raising fish from fry. In announcing its recent achievement,
Umani stated its desire to dramatically increase the worlds access to this highly
valued food source, and its intent to release hundreds of millions of fertilized
eggs and fry back into the wild every year.11 The effects of CLA on the bluefin
tuna fishery remain to be seen. It would seem logical to assume that bluefin tuna
CLA would pose many of the aforementioned environmental and human health
risks associated with CBA. Unlike CBA, however, bluefin tuna CLA could have the
potential to enhance stock recruitment, albeit unnaturally, and could support
the continuation of CBA and other bluefin tuna fisheries. Care should obviously
8Francesca
Ottolenghi, Capture Based Aquaculture of Bluefin Tuna, in Capture-Based
Aquaculture: Global Overview. FAO Technical Paper No. 508, edited by A. Lovatelli and
P. F. Holthus. Rome, Italy: Food and Agricultural Organization of the United Nations,
135 (2008).
9Francesca Ottolenghi, Cecilia Silvestri, Paola Giordano, Alessandro Lovatelli and
Michael B. New, Capture-Based Aquaculture, the Fattening of Eels, Groupers, Tunas
and Yellowtails, FAO, 261 (Rome 2004).
10Editor, The 50 Best Inventions of 2009, Time, http://www.time.com/time/specials/
packages/article/0,28804,1934027_1934003_1933946,00.html.
11 Umani Sustainable Seafood Confirms Natural Bluefin Tuna Spawning at its Farms
in Croatia, PR Newswire 3 August 2011, http://www.prnewswire.com/news-releases/
umami-sustainable-seafood-confirms-natural-bluefin-tuna-spawning-at-its-farm-incroatia-126662193.html.
476
emily a. gardner
be taken to introduce healthy eggs and fry of the same genetic composition that
would not contaminate or outcompete natural stocks.
Although much has been written about the international legal framework for
the management of traditional, wild-caught bluefin tuna fisheries, international
law is somewhat vague with regard to how bluefin tuna CBAa a practice that
is part fishery and part aquacultureshould be managed. The FAO has repeatedly acknowledged the need for additional and specific regulatory measures for
capture-based aquaculture of bluefin tuna, as well as for other species:
A common problem in regulating the capture-based aquaculture industry, which is
operating in many locations, has been the inadequacy of existing legislation to properly control its expansion. There are potential conflicts of interest with other resource
users and activities in coastal states. Rapid expansion of the sector, coupled with poor
regulatory measures has become a constraint within the industry itself. There is a
need for better capture-based aquaculture management; the processes of translating
actual or potential impacts into direct environmental costs and into environmental
and resource management policies requires development.12
The need for specific regulation for bluefin tuna CBA is critical given the substantial role the practice currently has in the global bluefin tuna fishery. The Japanese
Fisheries Agency estimates that of the 21,500 tons of bluefin imported in 2005,
90 per cent of the total (19,500 tons) was ranch-farmed and the product of CBA.13
Regulatory policies should also be established for bluefin tuna CLA, which
is in its early stages of development. International regulation is needed for the
culture of bluefin tuna given its highly migratory nature and status as a shared
resource. Aquaculture of bluefin tuna involves potential risks to the environment
and human health not generally associated with traditional fisheries and presents
new challenges to management. Any legal framework that is established to manage these activities should ensure that environmental and human health risks are
adequately addressed, while properly balancing the interests of trade along with
ethical concerns.
The second part of this chapter discusses factors relating to the biology and
distribution of bluefin tuna that are relevant to management of the fishery with
emphasis on those factors that have significant bearing on aquaculture. The third
section provides a general discussion of the key developments in the existing
12Ottolenghi et al., Capture-Based Aquaculture, 231. Also FAO, Use of wild fishery resources
for capture-based aquaculture, FAO Technical Guidelines for Responsible Fisheries. No.
5, Supp. 6 (Rome: FAO, 2011), 52:
Aquaculture activities that involve the removal of live material from the wildmay
require novel and specific management intervention and legislationto be established, or reviewed, and research conducted. Funding may needto be generated
or identified to ensure adequate management, includingenforcement capability,
and research capacity. A major challenge to addressis the prevalence of illegal,
unreported and unmonitored trade in many CBAfisheries...
13Richard Ellis, Tuna, Love, Death, and Mercury (New York: Knopf Doubleday, 2009), 121.
the legacy and fate of bluefin tuna under international law
477
international legal framework for the management of wild bluefin tuna fisheries,
including the United Nations Convention on the Law of the Sea, the United Nations
Fish Stocks Agreement, the Convention on Biological Diversity, the Convention on
the International Trade in Endangered Species, Regional Fisheries Management
Agreements, and the FAO Code of Conduct for Responsible Fisheries. The fourth
section explores how certain aspects of the current international legal framework
for the management of the bluefin tuna may be applied to the management of
CBA and CLA for the species. The fifth section discusses relevant international
laws, standards and practices relating to potential human health and food safety
risks involved in the aquaculture of bluefin tuna including the WTO Agreement
on the Application of Sanitary and Phytosanitary Measures and the WHO/FAO
Codex Alimentarius. The sixth section considers whether aquaculture practices
are likely to help or hurt the bluefin tuna fishery in the long-term and provides
recommended changes to the current international management scheme that are
aimed to promote the survival of the species and the fishery.
Biology, Distribution and Culture of Bluefin Tuna
There are three species of bluefin tuna: the Atlantic bluefin, Thunnus thynnus;
the Pacific bluefin, Thunnus orientalis; and, the Southern bluefin tuna, Thunnus
maccoyii.14 There is little difference in outward appearance among the three species, although the Atlantic bluefin, T. Thynnus, grows to be the largest.15 There is
generally no intermingling among the species and no interbreeding.16 The species
are distinguished and managed mostly by their geography.17
The Atlantic bluefin, T. Thynnus, is found in both the Eastern and Western
Atlantic. In the Eastern Atlantic it occurs from the Lofoten Islands off Norway
south to the Canary Islands, the Mediterranean Sea, and also off South Africa.18
In the Western Atlantic, the species is found from Labrador and Newfoundland south into the Gulf of Mexico and the Caribbean Sea, and, off Venezuela
and Brazil.19 The International Union for Conservation of Nature and Natural
14Some authors lump the two species of Northern bluefin tuna into one species, Thunnus thynnus, with Atlantic and Pacific sub-species, T. thynnus thynnus, and T. thynnus
orientalis, respectively. Current literature now recognises the Atlantic and Pacific subspecies, as separate species. IUCN Redlist of Threatened Species, Version 2011.2, Thunnus
orientalis, http://www.iucnredlist.org/apps/redlist/details/170341/0.
15Ellis, Tuna, Love, Death, and Mercury, 64.
16Ibid.
17Ibid.
18Ottolenghi et al., Capture-Based Aquaculture, 108.
19Ibid.
478
emily a. gardner
Resources (IUCN) 2011 Red List of Threatened Species lists the Eastern Atlantic
stock as endangered, and the Western Atlantic stock as critically endangered.20
Like the Atlantic bluefin, the Pacific bluefin, T. orientalis, also occurs in both
the Eastern and Western Pacific. In the Eastern Pacific the species is known
from the Gulf of Alaska to southern California and Mexico.21 In the Western
Pacific, it occurs from Sakhalin Island in the southern Sea of Okhotsk, south to
the northern Philippines.22 The Pacific bluefin is gravely endangered, with recent
biomass estimates at less than 4% of historic levels.
The Southern bluefin tuna, T. maccoyii, is found throughout oceans of the
Southern Hemisphere, in temperate and cold waters, mainly between 30 degrees
and 50 degrees south.23 The current IUCN Red List of Threatened Species lists the
Southern bluefin tuna as critically endangered.24
All three species of bluefin tuna are highly migratory. In fact, bluefin tuna are
considered the most ambitiously migratory of all fish.25 It is not unusual for the
Atlantic and Pacific species to cross their respective oceans. Adults and juveniles
of all three species migrate annually from colder, nutrient dense waters where they
feed, thousands of miles to their ancestral spawning grounds located in warmer
waters. The bluefins migrations can take them through a wide range of temperatures in their vertical and horizontal movements (42 to 78 degrees F.).26 Most
fish species will not tolerate rapid changes in ocean temperature, but, bluefin
have developed a unique adaptation to their circulatory system that allows them
to generate heat consisting of a specialised countercurrent network of arteries
and veins called the rete mirabile. The rete mirabile allows bluefin to retain up to
95 per cent of internal heat generated by its extremely high metabolism and
permits bluefin tuna to adapt rapidly to changes in ambient ocean temperature. Because of the rete mirabile, bluefin tuna are often referred to as warmblooded, a quality that has special implications for their rearing, harvesting and
production.27
20IUCN, IUCN Red List of Threatened Species Version 2011.1, Thunnus thynnus (Eastern
Atlantic Stock) and Thunnus thynnus (Western Atlantic Stock), www.iucnredlist.org/
apps/redlist/details/21865/0, and www.iucn redlist.org/apps/redlist/details/21864/0.
21 Ottolenghi et al., Capture-Based Aquaculture, 108.
22Ibid.
23Ottolenghi et al., Capture-Based Aquaculture, 110.
24IUCN, IUCN Red List of Threatened Species 2011.1, Thunnus maccoyii, http://www
.iucnredlist.org/apps/redlist/details/21858/0.
25National Geographic, Atlantic Bluefin Tuna, Thunnus thynnus, Animals, http://
animals.nationalgeographic.com/animals/fish/bluefin-tuna.
26University of New Hampshire, Large Pelagics Research Lab, Bluefin Tuna Program,
http://www.tunalab.unh.edu/Bluefinlifehistory.htm.
27The body temperature of bluefin tuna is reported to be approximately 80 degrees Fahrenheit upon landing. See, Brian Efland, Bluefin Tuna Handling Workshop Educates
the legacy and fate of bluefin tuna under international law
479
The bluefins extremely high metabolism is supported by a voracious appetite.
Adult bluefin tuna are apex predators of the marine food web and feed constantly
on smaller schooling fish, crustaceans, squid and eels. They are opportunistic feeders and will also filter feed on zooplankton and other small organisms
and have been observed eating kelp.28 Owing to their high body temperature and
metabolism, bluefin tuna have significant nutritional requirements and those
reared in CBA farms have unusually high feed conversion ratios (FCR). For large
bluefin specimens, the FCR for capture-based fisheries operations ranges from
1520:1, meaning that it takes from 15 to 20 kg of baitfish to produce 1 kg of
bluefin tuna meat.29 For smaller bluefin specimens, the FCR is still significantly
high at 1015:1.30 Bluefin tuna are typically fed 13 times a day, depending on the
farm and the country.31
Given the high volumes of baitfish needed to feed bluefin tuna in CBA, negative effects on the local populations of baitfish fisheries have been known to
occur,32 as well as negative effects on the environment due to the large amount
of organic waste in the form of unconsumed feed, fecal and excretory matter.
Such matter can accumulate in the sediments below or close to the farm, causing an undesirable organic enrichment that may adversely affect the surrounding
benthic community, and to a lesser extent, the water quality.33 And, because CBA
involves the out-growing of wild animals that are top-level carnivores, adaptation
to inert diets (for example, pellets) has proven difficult.34 In addition, there has
been some resistance from the Japanese markets regarding the use of artificial
diets in bluefin tuna CBA, as they are reported to adversely affect the taste of the
bluefins flesh, which is largely consumed raw.35
Bluefin tuna are known to be easily stressed during capture and harvesting.
The bluefins high body temperature and metabolic rate pose two serious issues
at the time of harvesting.36 First, when bluefin become stressed by attempting to avoid capture and harvesting, their highly muscularised bodies build up
huge amounts of lactic acid, which can lead to their muscle becoming scarred or
burned.37 Japanese call this yake (which means burnt in Japanese).38 Scarred
N.C. Fishermen, Sea Grant North Carolina, News & Events, 18 November 2008, http://
www.ncseagrant.org/home/about-ncsg/news-events?id=675&task=showarticle.
28National Geographic, Atlantic Bluefin Tuna, Thunnus thynnus,
29Ottolenghi et al., Capture-Based Aquaculture, 177.
30Ibid.
31 Ottolenghi et al., Capture-Based Aquaculture, 177.
32Ibid., 135.
33Ibid., 178.
34Ibid., 135.
35Ibid., 177.
36Efland, Bluefin Tuna Handling Workshop Educates N.C. Fishermen.
37Ibid.
38Ottolenghi et al., Capture-Based Aquaculture, 141.
480
emily a. gardner
meat is considered to be lower in quality and value. Second, the high body temperature of bluefin tuna encourages bacterial growth, even well after the tuna
has died. If not properly iced, bacteria will convert the naturally occurring amino
acid histidine in the bluefin bodies into histamine.39 This is an important factor
in managing a capture-based facility, as high levels of histamine in bacterially
contaminated fish is known to be toxic to consumers and lead to an illness called
Histamine Fish Poisoning (HFP).40 For this reason it is important in harvesting
that bluefin are killed and bled swiftly, to reduce stress and corresponding accumulation of lactic acid and histamine in their tissues.41
Little is known about the health aspects of bluefin tuna. The health of bluefin
tuna reared in CBA farms is difficult to assess and treat due to the large sizes
of the cages and the susceptibility of the fish to stress.42 In terms of biological
pathogens, bluefin tuna are host to over 60 known parasites as well as viruses
and bacteria.43 Permitted chemotherapeutants, such as antimicrobials used in
capture-based aquaculture to prevent infectious diseases may lead to the presence of residues in fish flesh and to the development of antibiotic resistance
in both humans and fish pathogens. This practice requires adequate regulatory
control.44
Bluefin tuna are long-lived species having life expectancies of 15 to 20 years,
with reports of individuals living as long as 40 years.45 In terms of reproductive
fitness, all three species of bluefin tuna are slow to reach sexual maturity. Eastern
Atlantic Northern bluefin mature at roughly 4 years, Western Atlantic Northern bluefin between 8 and 15 years, and, Pacific Northern bluefin and Southern
bluefin become sexually mature between 8 and 12 years.46 While bluefin tuna
do not become sexually mature until the age of 4 to 15 years, they are fished
39Efland, Bluefin Tuna Handling Workshop Educates N.C. Fishermen.
40Ottolenghi et al., Capture-Based Aquaculture, 262.
41 Ibid., 141. Smaller bluefin are typically killed with a spike to the brain, while adult and
giant bluefin are usually killed with a shotgun. It is the killing, more than anything else
that influences the quality of the tuna meat. Fish that have struggled during slaughter
will have less pink or reddish meat, which makes their market price lower. Pre-mortem
stress is a very important factor in seafood quality.
42Ibid., 137.
43Ibid., 136137.
44Ibid., 261.
45See, FishBase for Thunnus thynnus, Thunnus orientalis, and Thunnus maccoyii, http://
www.fishbase.org/.
46Michael J. Schirripa, A Literature Review of Atlantic Bluefin Tuna Age at Maturity,
Collective Volume of Scientific Papers, ICCAT, 66(2) (2011): 899. The author points out
that if bluefin tuna are actually maturing at an older age than is currently assessed then
the current management regime may be inadequate to meet and maintain the defined
ICCAT conservation benchmarks.
the legacy and fate of bluefin tuna under international law
481
c ommercially from the age of two to three.47 Removing too many younger individuals from populations before they have time to reproduce, as often occurs in
CBA, accelerates stock decline. All three species of bluefin tuna are thought to
have low resilience, with population doubling times of 4.514 years.48
CBA through the use of purse seines renders the collection of accurate catch
data difficult because the tuna are generally shepherded under water from the
purse seines into net pens with the help of divers. Because the bluefin are so
susceptible to stress, handling or collected come from the use of underwater
video cameras which document the movement of the tuna from the purse seines
into the net pens.49 This makes it virtually impossible to determine the size
and age of the fish. Presently, export data is used to track production from CBA
facilities.50 The use of export data, however, provides an incomplete measure as
it fails to address product that is not exported or animals that have died during
CBA. Under-reporting or non-reporting of catches in CBA operations is common,
which in turn leads to artificially inflated biomass values. The lack of accurate
biometric information makes stock assessment and therefore conservation and
management of bluefin tuna difficult.51 At least one author has recognised that
the most significant problem in the management of bluefin tuna is uncertainty
of biomass values.52
CLA of bluefin tuna may offer hope for the species. The release of fertilised
eggs and fry into the wild should increase species recruitment thereby increasing both wild populations of bluefin tuna and supporting CBA. The release of
cultured eggs and fry must be undertaken responsibly to avoid disease transmission and genetic mixing. Concerns have recently been raised with genetic contamination of wild populations of Atlantic salmon with those of salmon which
have been genetically modified under cultured conditions to include growth hormone gene from Chinook salmon and a gene from an ocean pout,53 which allow
the fish to produce growth hormone all year long, as opposed to seasonally.54
These genetically modified salmon, which have been referred to as frankenfish
grow at twice the normal rate of their wild counterparts and could out-compete
47Howard S. Schiffman, The Southern Bluefin Tuna Case: ITLOS Hears Its First Fishery
Dispute, Journal of International Wlidlife Law and Policy, 2(3) (1999): 3.
48See, FishBase for Thunnus thynnus, Thunnus orientalis, and Thunnus maccoyii.
49Ottolenghi et al., Capture-Based Aquaculture, 174.
50Ibid., 126.
51 Ibid., 174.
52Schiffman, The Southern Bluefin Tuna Case 3.
53Scientific name: Macrozoarces americus see http://animalsoftheworldblog.wordpress
.com/2013/06/09/macrozoarces-americanus/.
54Rebecca Boyle, This Week, FDA Considers Genetically Engineered Salmon for Human
Consumption, Popular Science, 21 September, 2010, http://www.popsci.com/science/
article/2010-09/week-fda-mulls-marketing-genetically-engineered-salmon-humanconsumption.
482
emily a. gardner
with wild populations, potentially driving them to extinction.55 Deemed safe for
human consumption in the United States by the FDA, the genetically modified
Atlantic salmon may not be safe for wild salmon and other components of the
marine food web.56 It is important that any regulatory scheme that is developed adequately address the release or escape of genetically modified cultured
organisms into the environment, given the dire ecological consequences that
could result.
International Management Framework
The United Nations Convention on the Law of the Sea
All three species of bluefin tuna are highly migratory and fall under Article 64
of the United Nations Convention on the Law of the Sea (LOSC),57 relating to the
management of highly migratory species found within exclusive economic zones
(EEZs).58 The LOSC Article 64 mandates that coastal States and other fishing
States:
co-operate directly or through appropriate international organizations with a view
to ensuring conservation and promoting the objective of optimum utilization of
such species throughout the region, both within and beyond the exclusive economic
zone.
The language of Article 64 strongly suggests that the duty to conserve bluefin
tuna and other highly migratory species within EEZs is superior to the duty to
optimally utilise them, as both coastal and distant water fishing States alike are
to ensure the conservation of such species, but must only promote their optimum utilisation.
In contrast to EEZs, bluefin tuna and other highly migratory species do not
enjoy a heightened protective status on the high seas under the LOSC. There is no
specific provision for management of highly migratory species on the high seas,
55Ibid. See also, Public Radio International, Frankenfish (genetically modified salmon)
comes alive, Living on Earth, 10 October 2010, http://www.pri.org/stories/science/
frankenfish-genetically-modified-salmon-comes-alive2404.html.
56Public Radio International, Frankenfish (genetically modified salmon) comes alive,
57United Nations Convention on the Law of the Sea (LOSC), opened for signature 10 December 1982, entered into force 16 November 1994, 1833 UNTS 397.
58The list of Highly Migratory Species is found in Article I of the LOSC. At the time
UNCLOS III was concluded in 1982, Northern bluefin tuna, Thunnus thynnus, had not
been split into two distinct species, the Atlantic species, which retained the taxonomic
name Thunnus thynnus, and the Pacific species, Thunnus orientalis. While only bluefin
tuna, T. thynnus, and Southern bluefin tuna, T. maccoyii, appear on the list of highly
migratory species included in Annex I of UNCLOS III, this author believes that because
T. orientalis was considered a sub-species of T. thynnus at the time UNCLOS III was
concluded it is encompassed within the listing for T. thynnus.
the legacy and fate of bluefin tuna under international law
483
and, as a result, bluefin tuna and other highly migratory species are managed in
the same manner as non-migratory living resources under Article 118.59 Article
118 requires States to cooperate in the conservation and management of living
resources in the areas of the high seas and to enter into negotiations with a
view to taking the measures necessary for the conservation of the living resources
concerned.60 This language suggests that conservation and management may
be on more equal footing, although States are mandated to negotiate measures
necessary for conservation. Article 119, which specifically addresses conservation
provides that States shall take measures to maintain or restore populations of
harvested species at levels which can produce the maximum sustainable yield
(MSY), based on the best scientific evidence available and as qualified by relevant environmental and economic factors.61 This language implies that under
the LOSC, optimum utilisation through maintenance of MSY takes precedence
over conservation for bluefin tuna and other highly migratory species fished on
the high seas.
The 1995 Straddling and Highly Migratory Fish Stocks Agreement
As stated above, the LOSC resulted in an inconsistent management scheme for
bluefin tuna and other highly migratory species in EEZs as compared with on
the high seas. Consequently, the issue was specifically readdressed during the
1992 United Nations Conference on Environment and Development (UNCED)
through Article 17.50 of Agenda 21.62 Article 17.50 of Agenda 21 called upon States
to convene an intergovernmental conference to promote effective implementation of the LOSC provisions relating to highly migratory fish stocks and straddling
fish stocks.63 This led to the development and adoption in 1995 of two international instruments that currently provide references for fisheries management
59Compare to LOSC Articles 65 and 120, under which marine mammals enjoy the same
conservation and management provisions in EEZs as they do on the high seas. The lack
of a specific provision for the management of highly migratory fish species on the high
seas is likely reflective of the tensions that existed between coastal States and distant
water fishing States at the time the LOSC was concluded: coastal States sought to protect resources occurring within their EEZs, while distant water fishing nations fought
for their right to continue fishing these species, many of which, like the bluefin tuna,
have significant economic value. The inability to diffuse the tensions between these
two groups resulted in highly migratory species on the high seas being managed in the
same manner as other fisheries resources under Article 118.
60LOSC, Article 118.
61 LOSC, Article 119.
62Robin Allen, International management of tuna fisheries: arrangements and a way forward, FAO Fisheries and Aquaculture Technnical Paper, No. 536 (Rome, 2010), 3.
63Ibid. United Nations Conference on Environment and Development (UNCED). 1992.
Agenda 21. Rio de Janeiro, http://www.un.org/esa/dsd/agenda21/res_agenda21_00.shtml.
Article 17.50 provides:
484
emily a. gardner
s tandards worldwide: the Agreement for the Implementation of the Provisions of
the United Nations Convention on the Law of the Sea of 10 December 1982 Relating
to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement),64 which is a legally binding agreement, and the FAO Code of Conduct for Responsible Fisheries (FAO CCRF), which
is non-binding.65
The first of the instruments, UN Fish Stocks Agreement, builds upon and incorporates provisions contained in the LOSC for the conservation and management
of highly migratory species and also includes several new concepts promoted by
UNCED, all with an over-riding duty to cooperate. The general provisions of UN
Fish Stocks Agreement are found in Article 5 and are mandatory. They require
coastal States and States fishing on the high seas to:
(a) adopt measures to ensure long-term sustainability of straddling fish stocks
and highly migratory fish stocks and promote the objective of their optimum
utilization;
(b) ensure management measures are based on the best scientific evidence
available and are designed to maintain or restore stocks at levels capable of
producing maximum sustainable yield, as qualified by relevant environmental and economic factors;
(c) apply the precautionary approach;
(d) assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent on target stocks;
(e) adopt, where necessary, conservation and management measures for species
belonging to the same ecosystem or associated with or dependent upon the
target stocks;
States should convene, as soon as possible, an intergovernmental conference under
United Nations auspices, taking into account relevant activities at the subregional,
regional and global levels, with a view to promoting effective implementation of
the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks. The conference, drawing, inter
alia, on scientific and technical studies by FAO, should identify and assess existing
problems related to the conservation and management of such fish stocks, and
consider means of improving cooperation on fisheries among States, and formulate appropriate recommendations. The work and the results of the conference
should be fully consistent with the provisions of the United Nations Convention
on the Law of the Sea, in particular the rights and obligations of coastal States and
States fishing on the high seas.
64The Agreement for the Implementation of the Provisions of the United Nations Convention
on the Law of the Sea of 10 December Relating to the Conservation and Management of
Stradling Fish Stocks and Highly Migratory Fish Stocks, 1995 (UN Fish Stocks Agreement)
opened for signature 4 August 1995, entered into force 11 December 2001, 2167 UNTS. 3.
65FAO Code of Conduct for Responsible Fisheries (FAO CCRF), www.fao.org/docrep/005/
v9878e/v9878e00.HTM.
the legacy and fate of bluefin tuna under international law 485
(f) minimize pollution, waste, discards, catch by lost or abandoned gear, catch
of non-target species, and impacts on associated dependent species;
(g) protect biodiversity in the marine environment;
(h) take measures to prevent or eliminate overfishing and excess fishing capacity
and to ensure that levels of fishing effort do not exceed those commensurate
with the sustainable use of fishery resources;
(i) take into account the interests of artisanal and subsistence fishers;
(j) collect and share complete and accurate data concerning fishing activities
including vessel position, catch of target and non-target species;
(k) promote and conduct scientific research and develop appropriate technologies in support of fishery conservation management;
(l) implement and enforce conservation and management measures through
effective monitoring, control and surveillance.66
In addition to the guiding mandatory principles of Article 5, Article 7 of the UN
Fish Stocks Agreement, entitled compatibility of conservation and management
measures, resolves the LOSC inconsistency regarding the management of highly
migratory species in EEZs as compared to the high seas. Article 7(1)(b) of the UN
Fish Stocks Agreement establishes that coastal States and distant water fishing
States that fish for highly migratory fish stocks must cooperate, with a view to
ensuring conservation and promoting the objective of optimum utilization for
such stocks throughout the region, both within and beyond the areas of national
jurisdiction.67
Article 7(2) reiterates the need for compatibility provided in Article 7(1)(b),
and, states that conservation and management measures established for the high
seas and those adopted within EEZs shall be compatible in order to ensure conservation and management of the [straddling fish stocks and] highly migratory
fish stocks in their entirety.68 In furtherance of the goal of compatibility, Article7(2)(a) of the UN Fish Stocks Agreement requires that States consider the conservation and management measures established by the coastal State for its EEZ
under the LOSC and ensure that measures established for management of highly
migratory stocks on the high seas do not undermine the effectiveness of the measures adopted by the coastal States.69 UN Fish Stocks Agreement thus provides
66UN Fish Stocks Agreement, Article 5. Similar general provisions are included in FAO
CCRF, but they are non-binding and address a broader range of issues, including aquaculture, which will be addressed below.
67UN Fish Stocks Agreement, Article 7(1)(b).
68Ibid., Article 7(2).
69Ibid., Article 7(2)(a). LOSC, Article 61, among other provisions expressly provides that
the coastal State shall determine the allowable catch of living resources in its exclusive
economic zone.
486
emily a. gardner
coastal States with an opportunity to lead the way in establishing management
standards for highly migratory stocks within and beyond their EEZ.70
Part III of the UN Fish Stocks Agreement establishes the terms and mechanisms
for the Agreements overarching duty to cooperate. Specifically within Part III
of the UN Fish Stocks Agreement, Article 8(1) requires States to cooperate in the
management of highly migratory fish stocks either directly or through appropriate sub-regional or regional fisheries management organizations (RFMOs) or
arrangements.71 Article 8(3) provides teeth to the duty to cooperate and requires
both coastal States and distant water fishing States that fish for highly migratory
species to become members of the RFMO(s) managing these species. Article 8(3)
also permits States having a real interest in the fishery to become members
in a given RFMO.72 Thus, membership in the RFMOs for bluefin tuna is mandatory for all States that fish for bluefin tuna within a regional fishery and permissible for States having a real interest in a particular bluefin fishery.
The three species of bluefin tuna are currently managed by five RFMOs, as
follows: Atlantic bluefin tuna are managed by the International Commission
for the Conservation of Atlantic Tuna (ICCAT), with distinct management
areas for the east and west Atlantic stocks, separated by a boundary line at
45 degrees west longitude (north of 10 degrees north);73 Pacific bluefin tuna
are managed by both the Inter-American Tropical Tuna Commission (IATTC)
and the Western and Central Pacific Fisheries Management Commission
(WCPFC);74 and, Southern bluefin tuna are managed by a management body dedicated specifically to the Southern bluefin tuna, the Commission formed under
the Convention for the Conservation of Southern Bluefin Tuna (CCSBT),75 and, to a
limited extent by the Indian Ocean Tuna Commission (IOTC).
Article 10 of the UN Fish Stocks Agreement sets forth the specific responsibilities of the RFMOs in establishing conservation and management measures for
their respective stocks. Under Article 10, RFMOs are to agree on catch limits and
allocations, minimum standards for responsible fishing practices, as well as methods for data collection and assessment, and monitoring.76 The RFMOs generally
make decisions on catch limits by consensus of their members. For the CCSBT
70Jon M. Van Dyke, Allocating Fish Across Jurisdictions, in Robin Allen, James Joseph
and Dale Squires, Conservation and Management of Transnational Tuna Fisheries, 165
(Ames: Wiley-Blackwell Publishing, 2010).
71 UN Fish Stocks Agreement, Article 8(1).
72Ibid., Article 8(3).
73Ottolenghi, Capture-based aquaculture of bluefin tuna, 172.
74Allen, International management of tuna fisheries: arrangements and a way forward,
78.
75Convention for the Conservation of Southern Bluefin Tuna opened for signature 10 May
1993, entered into force 30 May 1994, 1819 UNTS 360 (CCSBT).
76UN Fish Stocks Agreement, Article 10.
the legacy and fate of bluefin tuna under international law 487
and the IATTC, decisions require unanimity, while for the ICCAT, IOTC and
WCPFC, decisions may be made by a qualified majority.77
The data collection requirements of the UN Fish Stocks Agreement are contained in Article 14 and Annex I and are fairly extensive. Data must be collected
by States fishing on the high seas as well as in EEZs and provided to the appropriate RFMOs. Article 14(1)(b) of the UN Fish Stocks Agreement requires States to collect data in sufficient detail to facilitate effective stock assessment,78 and Article
14(1)(c) requires States to take appropriate measures to verify the accuracy of
such data.79 Annex I provides more specific details and provides that States must
collect the total catch in number, the nominal weight, or both by species, as well
as effort statistics for each fishery.80
Part VIII of the UN Fish Stocks Agreement establishes that disputes are to be
settled by peaceful means and that States must agree on efficient and expeditious decision-making procedures within the RFMOs for dispute settlement.81 To
date, there has been only one reported dispute seeking to invoke provisions of an
RFMO agreement, and it involved parties to the CCSBT. In 1998, Japan sought to
conduct an experimental fishing program for Southern bluefin tuna, to which
Australia and New Zealand were opposed on the basis that it unfairly increased
Japans quota for bluefin. Unable to resolve the dispute through diplomatic
negotiations alone, Australia and New Zealand submitted claims under both the
CCSBT and the LOSC to an arbitration panel of the International Tribunal for
the Law of the Sea (ITLOS).82 In the Southern Bluefin Tuna Cases, ITLOS concluded it could not proceed because the CCSBT had its own dispute settlement
procedure that effectively excluded the right of Australia and New Zealand to
resort to the LOSC dispute resolution procedures, despite the fact that significant aspects of the dispute arose under the LOSC.83 The decision in the Southern Bluefin Tuna Cases suggests that as long as disputes invoke provisions of the
RFMO agreements, they should be resolved regionally through the mechanisms
provided for in the various RFMO agreements, and provides support for regional
cooperation as promoted in the UN Fish Stocks Agreement.
77Ibid.
78Ibid., Article 14(1)(b).
79Ibid., Article 14(1)(c).
80Ibid., annex I, Articles 2 and 3.
81 Ibid., part VIII, Articles 27 and 28.
82Southern Bluefin Tuna Cases (New Zealand v. Japan, Australia v. Japan) International
Tribunal for the Law of the Sea, Requests for Provisional Measures submitted by
New Zealand and Australia), http://www.itlos.org/fileadmin/itlos/documents/cases/
case_no_3_4/request_new_zealand_eng.pdf; and, http://www.itlos.org/fileadmin/itlos/
documents/cases/case_no_3_4/request_australia_eng.pdf.
83Natalie Klein, Whales and Tuna: The Past and Future of Litigation between Australia
and Japan, Georgetown International Law Review, 21 (2009): 197.
488
emily a. gardner
Last, but certainly not least of the notable provisions of the UN Fish Stocks
Agreement is Article 6 and its mandatory application of the precautionary
approach to the conservation, management and exploitation of highly migratory fish stocks in order to protect the living marine resources and preserve the
marine environment.84 Along these lines, the UN Fish Stocks Agreement provides
that States must be more cautious when information is uncertain, unreliable or
inadequate.85 In furtherance of the application of the precautionary principle,
the UN Fish Stocks Agreement requires the establishment of stock-specific precautionary reference points, that account for the reproductive capacity, the
resilience of each stock and the characteristics of fisheries exploiting the stock,
as well as other sources of mortality and major sources of uncertainty which are
intended to constrain fishing within safe biological limits.86
The Convention on Biological Diversity
The objectives of the Convention on Biological Diversity (CBD)87 are the conservation of biological diversity, the sustainable use of its components and the fair
and equitable sharing of the benefits arising out of the utilisation of genetic
resources.88 Under the CBD, the term sustainable use means:
the use of components of biological diversity in a way and at a rate that does not lead
to long-term decline of biological diversity, thereby maintaining its potential to meet
the needs and aspirations of present and future generations.89 The provisions of the
CBD which are most directly relevant to the management of bluefin tuna fisheries
are summarized below.
Article 3 of the CBD establishes that States have the sovereign right to exploit
their own resources pursuant to their own environmental policies, and, the
responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of the areas beyond the
limits of national jurisdiction.90 This provision is compatible with the LOSC and
the UN Fish Stocks Agreement regarding coastal States rights to take fish within
their EEZs.
Article 5 of the CBD mandates cooperation directly or through competent
international organisations, in respect of areas beyond national jurisdiction and
84UN Fish Stocks Agreement, Article 6(1)
85Ibid., Article 6(2).
86Ibid., Annex II.
87Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993, 1760 UNTS 79 (CBD).
88Ibid., Article 1.
89Ibid., Article 95.
90Ibid., Article 3.
the legacy and fate of bluefin tuna under international law 489
on other matters of mutual interest.91 This provision is consistent with Article 8
of the UN Fish Stocks Agreement.
Article 6 of the CBD requires States in accordance with their particular condition and capabilities to develop national strategies for the conservation and
sustainable use of biological diversity, and, to integrate the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectional plans,
programs and policies.92
Article 10 of the CBD provides that each contracting party shall, as far as possible and as appropriate (a) integrate consideration of the conservation and sustainable use of biological resources into national-decision-making; and (b) adopt
measures relating to the use of biological resources to avoid or minimise adverse
impacts on biological diversity.93
Article 14 of the CBD requires States to establish procedures for conducting
environmental assessments of its proposed projects that are likely to have significant adverse effects on biological diversity that allow for public participation.94
Convention on International Trade in Endangered Species
of Wild Fauna and Flora
As its name suggests, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) regulates international trade in endangered
species.95 CITES prohibits international trade in wildlife species threatened with
extinction and permits controlled trade in species able to withstand some exploitation. CITES regulates trade in species that are listed in one of three appendices.96
Appendix I lists all species threatened with extinction that may be affected by
trade. Commercial trade in these species is subject to particularly strict regulation and is only permitted in rare and exceptional circumstances.97 AppendixII
includes species that may become threatened by commercial trade as well as
those that may be mistaken for Appendix II species. Limited trade in these species is permitted.98 Appendix III includes species subject to regulation within a
State partys jurisdiction for which that State seeks international cooperation in
controlling trade.99
91 Ibid., Article 5.
92Ibid., Articles 6(a) and (b).
93Ibid., Article 10.
94Ibid., Article 10.
95Convention on International Trade in Endangered Species of Wild Fauna and Flora,
opened for signature 3 March 1973, entered into force 1 July 1975, 993 U.NTS 243,
(CITES) http://www.cites.org/eng/disc/E-Text.pdf.
96Ibid., Article II.
97Ibid., Articles II(1) and III.
98Ibid., Articles II(2) and IV.
99Ibid., Articles II(3) and V.
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emily a. gardner
CITES operates through a permit system where trade in listed species is prohibited, barring issuance of a permit. The Conventions introduction from the
sea provision, applies to Appendix I and II species taken on the high seas and
transported into a State, an activity deemed to constitute international trade
and requiring a permit attesting that the taking will not be detrimental to the
species survival.100 Unlike the LOSC, the UN Fish Stocks Agreement and CBD,
Article 23 of CITES allows States to enter reservations on listed species, relieving
them of trade restrictions on these species.101
To date, there has been significant resistance to including marine fish species subject to large scale commercial harvesting in CITES appendices.102 This is
partially due to the fact that fisheries management traditionally has been considered a separate subject within international law and has established a substantial body of agreements and doctrine, separate from wildlife conservation and
trade law. Even though the fisheries sector has not been particularly successful in
achieving conservation of threatened and endangered species, as a body of law it
falls within the domain of the RFMOs and the FAO, and not the United Nations
Environmental Program (UNEP) which administers CITES.103 Thus, some of the
resistance to listing commercially harvested fish species under CITES is arguably due to housekeeping concerns. Economic interests in the fishing industry
are also hostile to the application of CITES, fearing that it will be too effective
in restricting trade pressures on listed species, thereby diminishing access to
resources and therefore profits.104
Despite the fact that all three species of bluefin tuna are seriously endangerednone of the species are currently listed in any of CITES appendices. Proposals
to list the Atlantic bluefin in CITES Appendix I were rejected in 1992 and 2010
in favour of maintaining management control solely with ICCAT.105 Similarly, in
1999 Australia considered a proposal to list the critically endangered Southern
bluefin tuna in Appendix II, but rejected the proposal in favour of maintaining
control of management of the species with the CCSBT.106 Concerns have also
been raised that Japan, which consumes the vast majority of the worlds bluefin
100Ibid., Articles III(5) and IV(6).
101 Ibid., Article XXIII.
102David R. Downes and Brennan Van Dyke, Fisheries Conservation and Trade Rules,
Ensuring That Trade Law Promotes Sustainable Fisheries (Washington: Center for International Environmental Law, 1998), 1920.
103Ibid.
104Ibid.
105Traffic, Bluefin Tuna listing rejected at CITES, Wildlife Trade News, 18 March 2010,
http://www. traffic.org/home/2010/3/18/bluefin-tuna-listing-rejected-at-cites.html.
106Anthony Cox, Matthew Stubbs, and Luke Davies, Southern Bluefin Tuna and CITES: An
Economic Perspective, Report for the Fisheries Resource Research Fund and Environment Australia, ABARE Research Report (Canberra: ABARE, 1999), http://adl.brs.gov
.au/data/warehouse/pe_abarebrs99000694/PC11989.pdf.
the legacy and fate of bluefin tuna under international law
491
tuna, would likely take a reservation on the bluefin tuna if management of the
species were relegated to CITES.107 Under such a scenario, Japan would not only
be permitted to continue to import bluefin tuna, but would also be exempt from
fishing restrictions for the species under CITES introduction from the sea provision. Potentially such a scenario could render CITES listing for the bluefin of little
consequence, and could weaken the treaty as a whole.
The FAO Code of Conduct for Responsible Fisheries
The FAO CCRF consists of a collection of principles, goals and actions to
support the development of responsible fisheries and aquaculture practices.
Over 170 Members of the UN Food and Agriculture Organization adopted the
FAO CCRF in 1995.108 Unlike the previously mentioned instruments, however,
the FAO CCRF is not legally binding and is largely voluntary in nature.109 This
renders the Codes effectiveness as a management tool questionable. However,
certain provisions of the Code, namely Article 1, regarding nature and scope, and,
Article3, regarding its relationship with other international instruments, indicate
that some provisionssuch as those reflected by international law or contained
in other binding international agreementsmay actually be binding, or, may be
converted into binding provisions through implementing legislation.110
Governments, in cooperation with their domestic industries and fishing communities have the responsibility to implement the Code, and are strongly encouraged to incorporate the Codes principles and goals into their national fisheries
policies and legislation. The fundamental premise of the FAO CCRF is that fisheries should be managed to ensure that fishing and fish processing are conducted
107Ibid., 4, 7.
108Ibid.
109Blaise Kuemlangan, Legal Considerations for the 1995 FAO Code of Conduct for
Responsible Fisheries and Related International Plans of Action, Appendix H, in
Report of the Workshop on the Implementation of the 1995 FAO Code of Conduct for
Responsible Fisheries in the Pacific: A Call to Action (Nadi: FAO, 2003), 13 http://www
.fao.org/DOCREP/006/Y5260E/y5260e0m.htm,
110Ibid. Article 1.1 of FAO CCRF provides The Code is voluntary. However, certain parts
of it are based on relevant rules of international law...Article 3 of the Code contains
provisions that may be or have already been given binding effect by means of other
obligatory legal instruments amongst the Parties...
The apparent legal implications of Articles 1 and 3, in terms of the binding verses
voluntary nature of the provisions of the Code are: 1) those provisions of FAO CCRF
which reflect international law are binding on all States; 2) those provisions which
are addressed in and states that existing binding agreement are binding on those are
parties to the binding agreement; and, 3) all other provisions are voluntary unless a
State promulgates national legislation implementing a provision of the Code, or, States
convert a voluntary provision into a binding commitment through a bilateral or multilateral agreement.
492
emily a. gardner
in ways that minimise negative impacts on the environment, reduce waste and
preserve the quality of fish caught. The essence of the Code is perhaps best provided in Article 6.1, which states:
States and users of living aquatic resources should conserve aquatic ecosystems. The
right to fish carries with it the obligation to do so in a responsible manner so as to
ensure effective conservation and management of the living aquatic resources.
Article 7 of the FAO CCRF establishes the principles for fisheries management
and provides that States and all engaged in fisheries management should adopt
measures for the long-term conservation and sustainable use of fisheries resources
that are based on the best scientific evidence available.111 Article 7 makes it
clear that fisheries management actions should be designed for long-term sustainability of fishery resources in a manner that will maintain their availability
for future generations and stresses that fisheries management decisions should
not be compromised by short-term considerations.112
Article 8 of the FAO CCRF contains provisions relating to fishing operations
and addresses States duties to ensure that only fishing operations allowed by
them are conducted in their waters,113 to cooperate in establishing monitoring,
control, surveillance and enforcement systems in accordance with international
law,114 and to maintain adequate records of all fishing vessels flying their flags.115
Application of the Current International Legal Framework
for Fisheries Management
Traditionally, aquaculture was an activity that was conducted entirely within
States exclusive jurisdictions and subject to domestic regulation. International
laws to regulate its management seemed largely unnecessary.116 As a result, there
are virtually no binding international agreements that specifically regulate aquaculture. Indeed, the LOSC does not even mention aquaculture specifically. Moreover, both the CBA and CLA of bluefin tuna evolved following the conclusion
of the LOSC in 1982. It is therefore not surprising that the LOSC and its progeny
fail to directly address either of these practices, or many of the previously noted
pressing issues associated with these activities that currently pose concerns
internationally. A general review of how existing international laws applicable to
the management of wild-caught bluefin tuna may be applied (and some limited
111 FAO CCRF, Article 7.1.1.
112Ibid.
113Ibid., Article 8.1.1.
114Ibid., Article 8.1.4.
115Ibid., Article 8.2.1.
116Shannon R. Wilson, Sustainable Aquaculture: An Organizing Solution for International
Law, Thomas Jefferson Law Review, 26 (2004): 500.
the legacy and fate of bluefin tuna under international law 493
instances are being applied) to address some of the environmental and ecological
issues uniquely associated with CBA and CLA is provided below.
The United Nations Convention on the Law of the Sea
Both CBA and CLA are aquaculture practices, and thus by their very nature
involve some degree of water pollution due to the heavy use of chemicals, pesticides, fish feeds and constant release of excretory matter into the environment.117
The LOSCs provisions related to pollution of the marine environment found in
Part XII of the Convention are broad enough to address many of the general
environmental concerns that may be associated with bluefin tuna CBA and CLA.
Article 194(2) mandates that States take all measures necessary to ensure that
activities under their jurisdiction and control do not cause pollution damage to
other States and their environment.118 Article 196 of the LOSC builds upon the
general premise found in Article 194(2) that requires States to contain pollution
within their boundaries but expands the concept to address the use of technologies. Article 196 provides that States must take all measures necessary to prevent,
reduce and control pollution of the marine environment resulting from the use of
technologies under their jurisdiction or control, or, the intentional or accidental
introduction of alien or new species to a particular part of the marine environment.119 Not only can Articles 194 and 196 be applied to curb any transboundary
pollution stemming from CBA and CLA facilities, but, Article 196 could also be
applied to reduce risks posed by the escape or introduction of eggs or fry originating from CLA operations.
While Articles 194 and 196 of the LOSC are certainly relevant to CBA and CLA,
particularly in terms of pollution control, perhaps the most robust among Part
XII provisions of the LOSC which may have the greatest potential to positively
affect the regulation of these practices is Article 192. Article 192 very simply but
powerfully establishes that States have the affirmative obligation to protect
and preserve the marine environment.120 Article 192 acknowledges the profound
responsibility that all countries have to manage the oceans in a manner that
respects the marine species that inhabit them121 and certainly could be invoked
by States seeking to reduce many of the adverse environmental effects of CBA
and CLA.
Along these lines and building upon Article 192s mandate to protect and preserve the marine environment, Article 193 of the LOSC establishes that States
have the right to exploit their natural resources pursuant to their environmental
117 Ibid.
118 LOSC, Article 194(2).
119 Ibid., Article 196.
120Ibid., Article 192.
121 Van Dyke, Allocating Fish Across Jurisdictions, 165.
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olicies and in accordance with their duty to protect the marine environment,122 and,
p
Article 197 calls upon States to cooperate on a global basis, and as appropriate, on
a regional basis in formulating and elaborating international rules, standards and
practices for protection and preservation of the marine environment.123
The Straddling and Highly Migratory Fish Stocks Agreement
Issues relating to the sustainability of bluefin tuna CBA can be addressed by the
UN Fish Stocks Agreement, however, application of the Agreement proves somewhat challenging due to the fact that it was established to regulate traditional,
wild-caught fisheries. A major hurdle for effective management for bluefin tuna
CBA is the fact that catch statistics currently rely largely on export data of aquaculture product, despite the fact that the fish are wild-caught. While there are
practical difficulties in obtaining catch data for bluefin destined for CBA, reliance
on export data serves as a disincentive for fishermen to adhere to any catch quotas that are set, particularly when the potential profits are so great. The reliance
on export data as catch statistics for bluefin tuna out-grown in CBA, in addition to
obscuring the numbers of tuna caught, also masks the taking of smaller, juvenile
fish from the population given the fact that only the tunas weight after fattening
at the time of harvesting in the form of export product is recorded. The lack of
reliable catch data associated with bluefin tuna CBA could be deemed in violation of Articles 5(j) and 14(1)(b) and (c) of the UN Fish Stocks Agreement, which
require States to collect and share complete, accurate and verifiable datain
sufficient detail to facilitate effective stock management. Similarly, the removal of
vast numbers of sexually immature fish from the population, as occurs regularly
in bluefin tuna CBA, appears violative of Articles 5(a), (b) and (h) of the UN Fish
Stocks Agreement, which expressly mandate the adoption of management measures that ensure long-term sustainability of stocks, are designed to restore or
maintain stocks at levels capable of producing maximum sustainable yield, and
ensure that levels of fishing effort do not exceed those commensurate with the
sustainable use of the fishery resource, respectively. Because catch data of bluefin
tuna caught for use in CBA is uncertain, Article 6 of the UN Fish Stocks Agreement
should be invoked to require the establishment of precautionary reference points
for all bluefin stocks subject to CBA.
The substantial nutritional needs of bluefin tuna reared in CBA farms as
reflected by the high FCR has been known to greatly reduce local populations
of baitfish, which in turn has potential to adversely alter the food web and ecosystem. The habitual taking of large amounts of baitfish from the environment
to fuel CBA can be deemed as a failure to comply with Articles 5(d), (e) and (f)
of the UN Fish Stocks Agreement, which require States to consider the effects of
122LOSC, Article 193.
123Ibid., Article 197.
the legacy and fate of bluefin tuna under international law 495
fishery practices on species belonging to the same ecosystem, species dependent
or associated with the target species, as well as the effects of a fishing practice
on the ecosystem itself.
In association with the establishment of RFMOs under Article 8(1) of the
UN Fish Stocks Agreement, a few of the RFMOs have adopted measures specifically related to CBA and CLA under the authority provided in their respective
implementing agreements. Both ICCAT and the CCSBT require member States to
provide a record of authorised farming facilities that include the name, location
and farming capacity of the facility and only authorise transfers of bluefin tuna
to and trade from registered farms.124 In addition, both ICCAT and CCSBT have
adopted catch documentation schemes that attempt to track bluefin from catch
to trade, and require reporting of all transfers, transshipments and movement of
bluefin tuna and bluefin products through registered farming facilities.125,126 In
contrast, at the time of this writing, IOTC, IATCC, and WCPFC have failed to
adopt any measures addressingaquaculture or farming. IATCCs and WCPFCs
failure to do so is alarming in light of the gravely endangered status of the Pacific
bluefin and the recent expansion of CBA in areas of the Pacific.127
The Convention on Biological Diversity
The CBD also may be applied to address aspects of bluefin tuna CBA associated
with the long-term sustainability of the fishery. The capture of vast amounts
of sexually immature bluefin tuna and the habitual removal of large amounts of
baitfish from the ecosystem involve violations of several CBD provisions. These
include: 1) Article 8(c) of the CBD which requires member States to protect ecosystems, natural habitats and viable populations in natural surroundings, even
if surroundings are not within protected areas; 2) Article 8(l) of the CBD which
124The Recommendation by ICCAT concerning bluefin tuna farming (Rec. 0607)
requires the establishment and maintenance of a record of facilities authorised to
operate for farming of bluefin tuna caught in the Convention area (FFBs). The information required from Parties under whose jurisdiction the FFBs are located includes
the following: name of the FFB, register number, names and addresses of owners and
operators, location and farming capacity, http://www.iccat.es/en/ffb.asp. In comparison, the CCSBT has established a list of authorised farms which are approved to operate for farming southern bluefin tuna. SBT farms not on the list are deemed not to be
authorised to operate for farming of southern bluefin tuna. Members and Cooperating
Non-Members will not validate trade documents for farms not on the list and will
not accept imports of southern bluefin tuna product from farms not on the list. See,
CCSBT Resolution on the Establishment of a Record of Authorised Farms, adopted
1417 October 2008, amended 910 October 2010, http://www.ccsbt.org/userfiles/file/
docs_english/operational_resolutions/Resolution_Authorised Farms.pdf.
125Supply footnote text.
126See, http://www.iccat.es/en/ROPbft.htm and http://www.iccat.es/en/BCD.asp.
127Supply footnote text.
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requires member States to regulate or manage activities where significant adverse
effects on biodiversity have been identified; 3) Article 10(a) of the CBD which
requires member States to integrate consideration of the conservation and sustainable use of biological resources into national decision-making; 4) Article 10(b)
of the CBD which requires States to adopt measures relating to the use of biological resources to avoid or minimise adverse impacts on biological diversity; and,
5) Article 14 of the CBD, which requires the preparation of environmental impact
assessment for projects likely to have an adverse impact on biological diversity.
A provision that could have direct bearing on bluefin tuna CBA is Article 8(1)
of the CBD, which requires contracting parties to regulate or manage the relevant processes and categories of activities where a significant adverse effect on
biological diversity has been determined.128
The Convention on International Trade in Endangered Species
As stated above, stocks of two species of bluefin tuna, the Atlantic and Southern
bluefin, are recognised as critically endangered by the IUCN, and the third species, Pacific bluefin, is recognised as fully exploited, yet none of the three species
are currently listed under CITES due to the general belief that bluefin tunalike
all commercially harvested fishshould be addressed solely through management of RFMOs. Management of bluefin through RFMOs alone has proven wildly
ineffective and fails to recognise the fact that a substantial portion of the global
bluefin market is currently the product of CBA which tracks its capture and production rates largely through export data due to the inability to obtain accurate
catch statistics.
Because the CBA provides a substantial portion of the bluefin tuna global market and relies on export data of aquaculture product, management of bluefin tuna
under CITES in addition to RFMOs seems appropriate, if not necessary, to monitor
the significant impact of CBA. Efforts should be supported to list all three species
of bluefin tuna under CITES Appendix I unless or until the RFMOs responsible for
managing these species are able to better account for bluefin derived from CBA
and successfully effect the recovery of these species to sustainable levels.
The FAO Code of Conduct for Responsible Fisheries
The provisions in FAO CCRF involved with aquaculture are found in Article 9
and include sub-parts on: 1) responsible development of aquaculture, including
culture-based fisheries,129 in areas under national jurisdiction; 2) responsible
128CBD, Article 8(1).
129Culture-based fisheries refer to the release of hatchery-reared animals into the wild
for capture fisheries enhancement. The practice is aquaculture-driven. This is in direct
contrast to capture-based aquaculture, which entails the capture of animals from the
the legacy and fate of bluefin tuna under international law 497
development of aquaculture within transboundary aquatic ecosystems; 3) Use
of aquatic genetic resources for the purposes of aquaculture; and, 4) responsible
aquaculture at the production level. A review of specific FAO CCRF provisions
that is particularly relevant to the management of bluefin tuna CBA and CLA is
provided below.
Article 9.1.1 of the FAO CCRF relates to responsible development of aquaculture
in areas under national jurisdiction and encourages States to establish, maintain
and develop an appropriate legal and administrative framework which facilitates the development of responsible aquaculture.130 Building upon this premise,
Article 9.1.2, calls upon States to promote responsible development and management of aquaculture, including an advance evaluation of the effects of aquaculture development on genetic diversity and ecosystem integrity, based on the
best available scientific information.131 Article 9.1.3 provides that States should
regularly update aquaculture development strategies to ensure their practices
are ecologically sustainable and to allow for the rational use of resources shared
by aquaculture and other activities.132 This provision would address the taking
of large numbers of sexually immature bluefin tuna in CBA as well as the use of
vast amounts of baitfish. Under Article 9.1.5, States must conduct environmental
assessments prior to conducting aquaculture activities.133
Article 9.2 deals with responsible development of aquaculture within transboundary ecosystems. Its provisions are applicable to aquaculture-related activities, including CBA, that take place on the high seas or between neighbouring
EEZs. Under Article 9.2.1, States must protect transboundary aquatic ecosystems
by supporting responsible aquaculture practices within their national jurisdiction and by cooperation in the promotion of sustainable aquaculture practices.134
Article 9.2.3, in turn, urges States to consult with neighbouring States as appropriate before introducing non-indigenous species into transboundary aquatic ecosystems.135 Article 9.2.4 calls upon States to establish appropriate mechanisms
to collect, share and disseminate data related to their aquaculture activities to
facilitate cooperation on planning for aquaculture development at the national,
subregional, regional and global level.136 Article 9.2.4 could be used to stimulate the development of more effective mechanisms for assessing catch data for
bluefin tuna CBA than those that are currently employed. Under Article 9.2.5,
wild for aquaculture purposes. See, Ottolenghi et al., Capture-Based Aquaculture, The
Fattening of Eels, Groupers, Tunas and Yellowtails, 3.
130FAO CCRF, Article 9.1.1.
131 Ibid., Article 9.1.2.
132Ibid., Article 9.1.3.
133Ibid., Article 9.1.5.
134Ibid., Article 9.2.1.
135Ibid., Article 9.2.3.
136Ibid., Article 9.2.4.
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States must cooperate in the development of mechanisms to monitor impacts
of inputs used in aquaculture.137 This provision applies to drugs, chemicals and
feedincluding baitfishas well as fry and eggs that are released into the environment as a result of CBA and CLA activities.
Article 9.3 involves the use of genetic resources for purposes of aquaculture.
Article 9.3.1 encourages States to minimise the harmful effects of introducing
non-native species or genetically altered stocks used for aquaculture, including
culture-based fisheries where there is a significant potential for the spread of such
non-native species or genetically altered stocks into waters under the jurisdiction
of other States as well as waters under the jurisdiction of the State or origin.138 In a
related provision which recognises the seriousness of the potential consequences
of such releases, Article 9.3.2 calls upon States to cooperate in the elaboration,
adoption, and implementation of an international code of practice for introductions and transfers of non-native or genetically modified aquatic organisms.139
Article 9.4 is the last section of Article 9 and relates to responsible production
practices in aquaculture. The provisions of Article 9.4 require States to establish
standards and practices for the selection and use of feeds; to promote effective
fish health management practices favouring hygienic measures and vaccines
and minimising the use of chemotherapeutants, hormones, drugs, antibiotics and
other chemicals; to regulate chemical inputs; to require the disposal of wastes;
and, to ensure food safety and quality of aquaculture products.140
While Article 9 of the FAO CCRF addresses many of the pressing management
concerns associated with bluefin tuna CBA and CLA, the instruments current
voluntary nature renders it ineffective as a management tool. Efforts should be
undertaken to incorporate Article 9 of the FAO CCRF in RFMO agreements in
regions where bluefin tuna CBA and CLA are practiced to make its provisions
binding on members employing these practices.
International Laws, Standards and Practices Relating to Potential Human
Health and Food Safety Risks Involved in the Aquaculture of Bluefin Tuna
A voluminous number of regulations, agreements and guidelines concerning the
safety of aquaculture products exist in the form of international and national
texts.141 Their review exceeds the scope of this chapter. A few international agreements on food trade, however, have implications on food safety and aquaculture
production and are therefore relevant to the management of bluefin tuna CBA
137Ibid., Article 9.2.5.
138Ibid., Article 9.3.1.
139Ibid., Article 9.3.2.
140Ibid., Article 4.
141 Ottolenghi et al., Capture-Based Aquaculture, the Fattening of Eels, Groupers, Tunas and
Yellowtails, 263.
the legacy and fate of bluefin tuna under international law 499
and CLA. The key international agreement is the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), which is binding on
members of the World Trade Organization.142
The SPS Agreement provides that the World Health Organization/Food and
Agricultural Organization Codex Alimentarius establishes the international standards, guidelines and practices for food safety.143 Texts of the Codex Alimentarius
are developed and maintained by the Codex Alimentarius Commission, an
international body presently comprised of 185 States under the auspices of the
WHO and FAO. The Commissions stated aims are to protect the health of consumers and ensure fair practices in the international food trade.144
In its relevant part, the WHO/FAO Codex Alimentarius includes Volume 9, a
Code of Practice for Fish and Fishery Products, which in turn includes section6,
relating specifically to aquaculture production.145 The preamble of section 6 of
the Code of Practice for Fish and Fishery Products for Aquaculture Production
expressly provides:
Aquaculture establishments should operate in a responsible way such that they
comply with the recommendations of the Code of Conduct of Responsible Fisheries
(FAO, Rome, 1995) in order to minimize any adverse impact on human health and
the environment, including any potential ecological changes (emphasis added).
This language suggests that States may adopt aquaculture production standards
compatible with the FAO CCRF and could potentially restrict trade in aquaculture
products that were produced in violation of the Codes aquaculture practices
including those relating to environmental and ecological effects. However, given
the fact that the SPS Agreement is intended to protect humans, animal and plants
from risks associated with the spread of disease, exposure to toxins or pests,146 it
is unclear whether it could be applied to restrict trade in aquaculture products
where evidence establishing a significant health risk to humans or animals was
lacking. Use of the Codex Alimentarius standards for aquaculture products has
yet to be tested and requires additional study to determine how and whether it
142WTO Agreement on the Application of Sanitary and Phytosanitary Measures (1996)
U.K.T.S. 54, GATT Doc MTN/FA li-A1A-4 (SPS Agreement) http://www.wto.org/english/
tratop_e/sps_e/spsagr_e.htm. See also, Helga Josupeit, Audun Lem, and Hector Lupin,
Aquaculture Products: Quality, Safety, Marketing and Trade, in Rohane P. Subasinghe
et al. (eds.), Aquaculture in the Third Millennium, Technical Proceedings of the Conference on Aquaculture in the Third Millennium, Bangkok, Thailand, 2025 February 2000
(Rome: FAO, 2001), 250.
143SPS Agreement, Article 3, annex A, section(3)(a).
144See, http://www.codexalimentarius.org/codex-home/en/.
145Codex Alimentarius Code of Practice for Fish and Fishery Products, CAC/RCP 522003,
section 6, aquaculture production, http://www.codexalimentarius.org/codex-home/en/.
146SPS Agreement, Article 2.
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could be applied to CBA or CLA bluefin tuna as a means of stimulating environmentally responsible production methods.
With regards to CLA specifically, through the adoption of the FAO CCRF, the
Codex has also incorporated Article 9.3.1 of the FAO CCRF which encourages States
to minimise the effects of introducing non-native species or genetically altered
stocks used in aquaculture into waters where there is a significant potential for
the spread of such stocks.147 In addition to specific provisions for aquaculture
production, the Codex has also adopted principles for foods derived from modern
biotechnology, which could potentially be implicated should bluefin tuna CLA
involve the production and/or release of genetically modified organisms.148 As
noted above, this has been cause for concern in the culture of Atlantic salmon.149
The Codex calls upon risk managers to implement appropriate measures to manage any identified uncertainties associated with the use of biotechnology in food
production as well as food labeling measures that would alert consumers to these
risks, and, to establish conditions for marketing approvals and post-market monitoring that address such risks.150
Conclusion
Japans apparently unquenchable desire for bluefin tuna coupled with the rising
popularity of sashimi worldwide have led to the serious depletion of the worlds
bluefin tuna stocks. Presently, all three species of bluefin tuna are considered
endangered. Stock depletion has resulted in exorbitant market prices for bluefin
tuna which has provided strong incentives for many to enter the already overcrowded fishery and to flout existing regulations. Efforts to manage the fishery
on a global and regional basis have effectively failed. As a testament to this, an
147FAO CCRF, Article 9.3.1.
148Codex Alimentarius Principles for the Risk Analysis of Foods Derived from Modern
Biotechnology, CAC/GL 442003, adopted in 2003, with amendments in 2008 and
2011, http://www.google.com/search?sourceid=navclient&ie=UTF8&rlz=1T4SKPB_enU
S379US379&q=Codex+Alimentarius+Principles+for+the+Risk+Analysis+of+Foods+De
rived+from+Modern+Biotechnology%2c+CAC%2fGL+442003%2c+adopted+in+2003
%2c+with+amendments+in+2008+and+2011
149Wilson, Sustainable Aquaculture, 505, citing Rosamond L. Naylor et al., Aquaculture- A Gateway for Exotic Species, Science, 294 (2001): 16551656. More than a halfmillion Atlantic salmon escaped on the West Coast of North America between 1987
and 1997; they have been found in 77 British Columbian rivers and are spawning in
some locations, increasing pressure on endangered native salmon. Additional pressure could result if transgenic salmon containing added growth hormone genes are
approved for commercial net pet culture.
150Codex Alimentarius Principles for the Risk Analysis of Foods Derived From Modern
Biotechnology, paragraphs 18 and 19.
the legacy and fate of bluefin tuna under international law
501
Independent Performance Review of ICCAT reported that the management of
Atlantic blue fin tuna was widely seen as an international disgrace.151
Advances in technology coupled with increased knowledge about the species
has led to the development and use of certain aquaculture practices with the
hope that they will enhance the productivity of the fishery and promote survival
of the species. Bluefin tuna CBA was developed in the 1980s and 90s as a means of
increasing the size and fat content of the tuna to better suit Japans consumer
preferences and in turn, garner higher market prices. Bluefin tuna CBA has
become prolific during the last few decades and is currently practiced by more
than 20 countries.152 While bluefin tuna CBA has certainly served the worlds
sashimi market well, it appears to be doing so at a long-term cost to the fishery.
There are several significant issues associated with bluefin tuna CBA which
bring its long-term sustainability into question. These include the lack of accurate
catch data and reliance on inflated biomass values, the removal of vast numbers
of sexually immature fish from the population to use as seed material, and the
unusually high FCR for captive bluefin tuna, which has an adverse impact on
nearby baitfish populations and food webs.
Bluefin tuna CLA may emerge as a possible saviour for the fishery and the species, provided it is done responsibly with an aim towards protecting the environment as well as the health of wild populations of bluefin tuna and other species,
including humans. An abundance of caution must be employed to ensure that all
eggs and fry released are disease free and of the same genetic composition of wild
stocks, so as not to contaminate or outcompete with natural stocks. In addition,
care must be taken to control the influx of chemicals and pharmaceuticals into
the environment directly, or through biological transmission. If done properly,
bluefin tuna CLA has the potential to increase stock recruitment and may allow
for the continuation of CBA, although actions should be undertaken to reduce
the FCR of captive individuals in order for it to be ecologically sustainable.
Bluefin tuna CBA and CLA have gone largely unregulated due to the fact that
at present there are no binding international instruments that specifically address
these practices. Several existing international instruments including the LOSC,
the UN Fish Stocks Agreement and CBD are binding and can be invoked to address
certain aspects of CBA and CLA, but application proves challenging as the laws
were not established with aquaculture, and especially CBA, in mind.
151 See, Glenn D. Hurry, Moritaka Hayashi and Jean-Jacques Maguire, Report of the Independent Review, International Commission for the Conservation of Atlantic Tunas
(ICCAT) (2008) at 61, http://www.iccat.int/com2008/ENG/PLE-106.pdf.
See, http://www.iccat.int/Documents/Other/PERFORM_%20REV_TRI_LINGUAL.pdf.
See also, Editor, Managed to death, The Economist, October 30, 2008, http://www
.economist.com/node/12502783.
152Ottolenghi et al., Capture-Based Aquaculture, the Fattening of Eels, Groupers, Tunas and
Yellowtails, 112115; 121128.
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Article 9 of the FAO CCRF includes specific provisions that address various
issues associated with aquaculture including issues related to sustainability,
ecological stability, pollution of the environment and human health concerns.
However the FAO CCRF is non-binding and its effectiveness as a management
tool is therefore limited. The FAO CCRFs provisions on aquaculture contained
in Article 9 should be incorporated into RFMO agreements in regions where culture of bluefin tuna is conducted to render the provisions binding. Such a move
would be supported by Article 3 of the FAO CCRF and be consistent with the
WTOs and the WHO/FAO Codex Alimentarius adoption of the FAO CCRF as
the appropriate food safety standards for aquaculture products. Incorporation
of the FAO CCRFs aquaculture provisions into regional fisheries management
agreements as opposed to existing international agreements such as the LOSC
or the UN Fish Stocks Agreement, seems logical as it would follow the apparent
preference for regional cooperation in the management of fisheries as expressed
in both Article8 of the UN Fish Stocks Agreement and ITLOS decision articulated in
the Southern Bluefin Tuna Cases.
In addition, due to the fact that a substantial percentage of the global bluefin
tuna market is currently the product of CBA, which relies largely on export data
of aquaculture product instead of catch data, all three species of bluefin tuna
should be listed under CITES.153 Management of bluefin under CITES should complement and not replace that by the RFMOs. CITES has the potential to protect
the bluefin where traditional fisheries management methods have failed it, given
that international trade in the species poses the greatest threat to its survival.
As an alternative to the application of existing laws to conserve and manage
bluefin tuna, at least one author has posed the development of a specific bluefin
tuna code of conduct to be shared by fishers, farmers and importers to ensure
implementation of all management regulations specific to the species.154 While
this approach could have its advantages by expressly dealing with many of the
unique issues involved in the fishing, culture and harvesting of bluefin tuna, its
passage would require cooperation on a global level, as opposed to a regional
level. Given the extremely high market value of bluefin tuna and its present short
supply, global cooperation could be difficult to attain and may result in polarisation and gridlock involving States with conflicting interests, as has occurred in
the international management of whales, another shared resource which is also
highly migratory and highly valued.155
Whether changes to the current regulatory framework for bluefin tuna
are undertaken on a global or regional level, it is clear that changes are badly
153While the Pacific bluefin tuna, T. oritentalis, is not presently endangered or threatened,
the species closely resembles the other two bluefin species which are critically endangered, and merits listing under CITES Appendix II for this reason.
154Ottolenghi, Capture-based aquaculture of bluefin tuna, 181.
155Klein, Whales and Tuna, 177178.
the legacy and fate of bluefin tuna under international law
503
needed in order to address CBA and CLA which are significantly changing the
face of the fishery and are not adequately or specifically addressed under
the current regulatory framework. Ideally, implementation of a legally binding
aquaculture regulatory scheme should be in place before CLA reaches the point
where it is poised to release eggs and fry into the environment, given the seriousness of the potential consequences.
In addition to regulatory changes in the management of the fishing and culture
of bluefin tuna, efforts should also be undertaken to educate consumers about
the unique attributes of bluefin tuna as wildlife species, as opposed to merely a
luxury food. Providing consumers with knowledge about both the unique biology of the fish and the unsustainable nature of the current fishery practices
particularly CBAmay serve to alter food choices and in some way, contribute
to the continued survival of the species.
PART six
POLAR LIMITS
chapter twenty-two
The Southern Ocean, Climate Change and Ocean Governance
Marcus Haward*
Introduction
This chapter explores the challenges to governance arising from climate change
in the Southern Ocean, focusing particularly on issues related to jurisdiction and
competence of international instruments and regimes. The Southern Ocean, connecting all the worlds great oceans, has a significant role in global circulation. It
is also the location of a significant and unique marine-based ecosystem (incorporating the worlds largest under-exploited fishery), that, in common with the
rest of the worlds oceans, is likely to be affected by climate change. The Southern
Ocean provide a critical moderating influence on the rate and extent of climate
change, acting as a carbon sink through chemical and biological processes that
absorb and circulate carbon dioxide (CO2).
The chapter first outlines the role and significance of the Southern Ocean
for the worlds climate system and identifies physical and biological impacts of climate change on this system arising from anthropogenic (human-sourced) emissions of greenhouse gases, most notably CO2. Changes in physical and biological
oceanographic conditions are likely to encourage range shifts by marine species,
provide opportunities for increased access to areas for marine based industries
while challenging existing management arrangements. The chapter provides an
outline of existing governance arrangements in the Southern Ocean, recognising the
significance of the interplay between the Antarctic Treaty System and other instruments and regimes. While the impacts of climate variability and change are hard
to predict, governance arrangements in the Southern Ocean will need to address
the influence of these impacts in the future. This heightens the salience of ongoing
research into the scope and magnitude of climate change on these arrangements.
*Marcus Haward is a Professor in the Oceans and Antarctic Governance Program at the
Institute for Marine and Antarctic Studies (IMAS) at the University of Tasmania. Marcus
has an extensive record of research and publication on Antarctic and oceans policy and
governance from both global and Australian perspectives.
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marcus haward
The Southern Ocean in the Worlds Climate System
The Southern Ocean in particular plays a vital role global ocean circulation, the
means by which heat and energy are absorbed and transferred.1 The physical
oceanography of the Southern Ocean also contributes to unique biological conditions that shape distinct ecosystems. Changes in physical and biological conditions in the region through impacts of anthropogenic (human sourced) climate
change, through increased levels of greenhouse gasesmost notably CO2in
the atmosphere, have consequences for ecosystems, resource use and management. The Southern Ocean has been described as a sentinel for broader scale
physical and biological impacts influenced by climate change.2 Southern Ocean
links the worlds great ocean basins, and provides opportunities for circumpolar
movement of water. This circumpolar movement, influenced by the strong mid
latitude westerly winds, is coupled with physical and chemical processes arising from the interaction of winds and ocean on ice-covered areas (known as the
cryosphere). Sea ice surrounding the Antarctic continent has a fundamental role
in ocean circulation that is at the core of the climate system. Sea ice is much
less salty than the seawater it forms from, and the salt added to the ocean when
sea ice forms makes the surface water denser, and therefore heavier, causing it
to sink toward the bottom.3 The mixing of the this water with warmer, saltier
(saline) water masses at deeper levels overlying the continental shelf is a key
process in the formation of Antarctic Bottom Waterone of the major elements
of the ocean conveyor belt responsible for redistributing heat between the
equator and the poles and maintaining our current climate system.4 As a result,
deep-water formation around Antarctica is the flywheel5 driving a significant
component the themohaline circulation6 through differences in density of water,
influenced by changes in temperature and salinity. The generation of cold, saline
Antarctic bottom water from the seasonal pattern of ice freeze and thaw provides
1 Antarctic Climate and Ecosystems Cooperative Research Centre, Climate Change and
the Southern Ocean (Hobart: ACE CRC, 2011), 3.
2Andrew Constable and Susan Doust, Southern Ocean Sentinel: An International Program
to Assess Climate Change Impacts on Marine Ecosystems, Report of an International
Workshop, Hobart, April 2009 (Hobart: ACE CRC, 2009), 2.
3Antarctic Climate and Ecosystems Cooperative Research Centre, Changes to Antarctic
Sea Ice: Impacts (Hobart: ACE CRC, 2009), 10.
4Ibid.
5Will Steffen, Stronger Evidence But New Challenges: Climate Change Science 20012005
(Canberra: Department of Environment and Heritage, Australian Greenhouse Office,
2006), 17.
6Stefan Rahmstorf, Thermohaline Ocean Circulation, in Scott A. Elias (ed.), Encyclopaedia of Quaternary Sciences (Amsterdam: Elsevier, 2006).
the southern ocean, climate change and ocean governance
509
the engine room for this process, termed the overturning circulation.7 This occurs
through the heating of seawater at the surface and cooling at lower depths, that
in addition to wind driven currents and tides, provide the major mechanisms by
which heat is transferred from the equator to the poles.8
The oceans also provide a major sink for atmospheric carbon through physical
and biological processes that are part of the carbon cycle.9 Indeed, [t]he Southern Ocean (south of Latitude 30 South) absorbs about 40 per cent of the total
global ocean uptake of anthropogenic CO2.10 Physical processes relate to the direct
absorption of CO2 by seawater whereas biological processes involve the absorption of CO2 through photosynthesis by phytoplanktonmicroscopic marine
plantsthat are basic elements of the marine ecosystem. These processes are
enhanced by the upwelling of deeper waters being brought to the surface as part
of vertical convection beneath the ice that are warmer and rich in nutrients,
facilitating high biological productivity in the surface waters.11 This productivity
enhances the growth of phytoplankton that in turn provides important elements
in the food-chain, food for zooplanktonmicroscopic marine animalsthat
are in turn consumed by higher order species.
The absorption of CO2 by seawater has other effects. Increasing to the level of
CO2 causes chemical change in seawater by increasing its acidity as measured by
changes in pHan index of relative acidity. The pH of seawater occurs in the
range 7.5 to 8.4.12 Ocean acidification, the process that that is leading to a lower
pH range for sea water, will affect the ocean ecosystem, particularly those organisms that have calcium carbonate shells. This is because as CO2 is absorbed in
seawater it forms a weak acid (carbonic acid) that reacts with calcium carbonate.
Increasing the level of carbonic acid affects the formation of calcium carbonate and
thus the ability of organisms to produce shells.13 Impacts of acidification will be
7While
the Southern Ocean plays a major role in global ocean circulation, similar processes, but at smaller scales, occur in the Arctic and North Atlantic Oceans.
8Marcus Haward, Climate Change: Antarctica and the Southern Ocean, Science, Law
and Policy, in Robin Warner and Clive Schofield (eds.), Climate Change and the Oceans:
Gauging the Legal and Policy Currents in the Asia Pacific and Beyond (Cheltenham:
Edward Elgar Publishers, 2012), 107112.
9Antarctic Climate and Ecosystems Cooperative Research Centre, CO2 Emissions and Climate Change: Ocean Impacts and Adaptation Issues (Hobart: ACE CRC 2008), 4.
10Antarctic Climate and Ecosystems Cooperative Research Centre, Climate Change and
the Southern Ocean (Hobart: ACE CRC, 2011), 4.
11 Antarctic Climate and Ecosystems Cooperative Research Centre, Changes to Antarctic
Sea Ice: Impacts, 12.
12The pH of pure (distilled) water is 7.0.
13Australian Antarctic Division, Ocean Acidification, www.antarctica.gov.au/aboutantarctica/fact-files/ climate-change/ocean-acidification-and-the-southern-ocean.
510
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seen first in the Southern Ocean, providing insights to what is to be expected
elsewhere in the future.14
While exact impacts are difficult to predict, in the medium to long-term (the
next century), these changes in ocean chemistry are likely to have an impact
on fisheries management and practices.15 It is likely that ocean acidification will
affect spatial distribution of some species, but these impacts are likely to be seen
in conjunction with other environmental factors associated with climate change,
such as increased water temperatures and frequency and severity of extreme
weather events, that may affect marine habitats. Warming is likely to impact the
cryosphere affecting the significant sea ice zone around Antarctica as well as Antarctic ice shelves and ice sheets. Climate change is likely to affect the seasonal
pattern of freeze-thaw in the Southern Ocean and affect the extent and thickness
of sea-ice. Climate models predict, on average, that Antarctic sea ice will, by the
end of this century, reduce by 24 per cent in extent and 34 per cent in volume.16
Such a decline will have significant influence on global ocean circulation, and
hence climate, as well as Southern Ocean ecosystems that rely on sea ice as a
habitat and/or food source.17
Research in the Southern Ocean has indicated change over a decade with
cooler and less saline waters compared with earlier results.18 This freshening of
the oceans is likely to be caused by glacial melt from Antarctica and has potential
to affect the circulation around Antarctica.19 Warming oceans is also expected to
increase subsurface melt of ice shelves that float on the sea. Ice shelves buttress
glaciers and glacier discharge will accelerate when ice shelves are removed.20 The
collision between the giant iceberg B09B and the Mertz Glacier ice tongue in
February 2010 exposed a part of the sea floor that had been hidden from view
for decades. The calving of the 2,500 km ice tongue also changed the geography of the region, with unknown consequences for the global ocean overturning
14 Antarctic Climate and Ecosystems Cooperative Research Centre, CO2 Emissions and
Climate Change, 6.
15 Ibid., 9.
16 Antarctic Climate and Ecosystems Cooperative Research Centre, Changes to Antarctic
Sea Ice, 9.
17 Ibid., 13.
18 Shigeru Aoki, Stephen R. Rintoul, Shuki Ushio, Shuichi Watanabe and Nathaniel L. Bindoff, Freshening of the Adlie Land Bottom Water Near 140E, Geophysical Research
Letters, 32 (2005): L23601.
19 Shigeru Aoki, Nathaniel Bindoff and John A. Church, Interdecadal Water Mass
Changes in the Southern Ocean Between 30E and 160E, Geophysical Research Letters, 32 (2005): L07607.
20Antarctic Climate and Ecosystems Cooperative Research Centre, Polar Ice Sheets and
Climate Change: Global Impacts (Hobart, ACE CRC, 2009), 1011.
the southern ocean, climate change and ocean governance
511
c irculation and climate.21 These processes and the changes likely to arise from
them are identified in the scientific literature, but have considerable uncertainties
(given the lack of data) associated with the rate and extent of warming induced
change on the Antarctic cryosphere.
These bio-physical changes are likely to have impacts on the Southern Ocean
ecosystem. As noted above change to sea ice will influence physical changes in
ocean salinity and circulation but it will also affect the Southern Ocean ecosystem. Changes in sea ice thickness and extent have a number of potential impacts.
Reductions in the extent of sea ice may impact on winter habitats for krill that
feed of algae growing from the sea ice. Reductions in sea ice may also enhance
access to marine living resources of the high latitudes of Southern Ocean. In a
practical sense, reduced sea ice will also mean greater access for ships to the
higher latitudes.22 As a result the resources of these areas (particularly Antarctic
krill that remains the worlds largest underexploited fishery) may become more
attractive to harvesting at the time when the physical and biological base of the
ecosystem is being challenged. Ecosystem change, too, will have impacts and may
mean that resources of the Southern Ocean and Antarctica may become more
attractive due to scarcity or competition in other areas of the world and in a
worst-case scenario of enhanced global warming, the major impacts will most
likely be felt in the polar regions first.23
These impacts therefore have direct relationships to questions of governance.
These questions arise over the ability of existing environmental management
arrangements to cope with changes in the biophysical and ecological systems; in
short the changes in the environment for which these instruments and institutions were established. A second set of questions related to governance is the
increasing intersection of other regimes, such as those governing ship operations
and safety as areas of the Southern Ocean are accessed or exploited.
Governance Arrangements in the Southern Ocean
A number regimes and instruments cover the Southern Ocean. These include,
inter alia, those elements comprising what has been termed the Antarctic Treaty
21 Australian Antarctic Division, Mertz Glacier calving provides scientific opportunities Australian Antarctic Magazine, 20 (2011), www.antarctica.gov.au/about-us/publica
tions/australian-antarctic-magazine/issue-20-2011/mertz-glacier-calving-providesscientific-opportunities.
22Antarctic Climate and Ecosystems Cooperative Research Centre, Changes to Antarctic
Sea Ice, 15.
23Julia Jabour and Marcus Haward, Antarctic Science, Politics and IPY Legacies, in Jessica M. Shadian and Monica Tennberg (eds.), Legacies and Change in Polar Sciences:
Historical, Legal and Political Reflections on the International Polar Year (Farnham: Ashgate, 2009), 102.
512
marcus haward
System (ATS):24 the Antarctic Treaty;25 the Protocol on Environmental Protection
to the Antarctic Treaty (Madrid Protocol),26 the Convention for the Conservation of
Antarctic Marine Living Resources (CCAMLR);27 and the Convention on Migratory
Species of Wild Animals (CMS);28 the Convention on International Trade of Endangered Species of Wild Flora and Flora (CITES);29 the International Convention for
the Regulation of Whaling (ICRW);30 the Convention for the Prevention of Pollution from Ships (MARPOL73/78); the Convention for Safety of Life at Sea31 (SOLAS);
the International Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter (London Convention);32 and the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter;33
the Convention on Biological Diversity (CBD);34 the Convention for the Protection
of the World Cultural and Natural Heritage (the World Heritage Convention);35 and
the United Nations Convention on the Law of the Sea (LOSC).36
24The ATS also includes the Antarctic Treaty Secretariat and the annual Antarctic Treaty
Consultative Meeting (ATCM).
25The Antarctic Treaty, opened for signature 1 December 1959, entered into force 23 June
1961, 402 UNTS 71.
26Protocol on Environmental Protection to the Antarctic Treaty, opened for signature
4 October 1991, entered into force 15 January 1998, 30 (1991) ILM 1455.
27Convention for the Conservation of Antarctic Marine Living Resources, opened for signature 1 August 1980, entered into force 7 April 1982, 1329 UNTS 47.
28Convention on Migratory Species of Wild Animals, opened for signature 23 June 1979,
entered into force 1 November 1983, 19 (1980) ILM 15.
29Convention on International Trade of Endangered Species of Wild Flora and Flora, opened
for signature 3 March 1973, entered into force 1 July 1975, 993 UNTS 243.
30International Convention for the Regulation of Whaling, opened for signature 2 December 1946, entered into force 10 November 1948, 161 UNTS 61.
31 International Convention for Safety of Life at Sea, opened for signature 1 November 1974,
entered into force 25 May 1976, 1184 UNTS 2.
32International Convention for the Prevention of Pollution from Ships, opened for signature
2 November 1973, not yet entered into force, 12 ILM 1319 as amended by Protocol Relating to the Convention for the Prevention of Pollution from Ships, opened for signature
17 February 1978, entered into force 2 October 1983, 1340 UNTS 61.
33Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
opened for signature 29 December 1972, entered into force 30 August 1975, 1046 UNTS
120 and Protocol to the Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matter opened for signature 7 November 1996, entered into force
24 March 2006, 36 (1997) ILM 1.
34Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993, 31 (1992) ILM 818.
35Convention for the Protection of the World Cultural and Natural Heritage, opened for
signature 16 November 1972, entered into force 17 December 1975, 11(1972) ILM 1358.
36United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 396.
the southern ocean, climate change and ocean governance
513
The question of regime overlap and/or complementarity37 does pose challenges for governance. These challenges can be addressed, if not resolved, in a
number of ways:
Regimes may specifically refer to the competence of another body. For example,
whaling is specifically excluded from CCAMLRs competence, but CCAMLR also
has supported the development of a new regime to address incidental catch
of seabirds. This regime, the Agreement for the Conservation of Albatrosses and
Petrels (ACAP)38 is based on the CMS.
One regime may assert its primacy within its spatial area of competence (as
defined by its treaty), and address emergent issues within its decisionmaking
forums. The ATS has tended to address marine resource management, environmental protection and heritage issues in this way;
A regime may incorporate measures from another competent regime into the
management framework of the regime; an example of this is the ATS adoption of International Maritime Organisation (IMO) standards for shipping, and
requests to the IMO to restrict use of heavy fuel oil, and ATS support for the
IMOs Polar Code to guide shipping in Antarctic waters; and,
Two regimes may claim interest and jurisdiction. One outcome of duplicate
claims for competence may be the creation possibilities of forum shopping
where different interests may seek outcomes in forums they perceive to be the
most favourable to their concerns. A relevant example here is with the regulation open ocean iron fertilisation39 that involved both the CBD and London
Convention and London Protocol.
Climate change is likely to affect spatial boundaries establishing the competence
and jurisdiction of instruments and regimes. The polar front, for example, is an
oceanographic feature provides a physical and biological boundary between the
Southern Ocean and the waters of the other great oceans to its north. It is a
dynamic feature and changes in the front may have implications for governance.
For example change in oceanographic fronts, together with the generally poleward shift observed in ranges of marine fisheries range shifts as species respond
37Marcus Haward, The Law of the Sea Convention and the Antarctic Treaty System; Constraints or Complementarity, in Seoung-Yong Hong and Jon van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Leiden, Martinus
Nijhoff Publishers, 2009), 232.
38Agreement for the Conservation of Albatrosses and Petrels, opened for signature 19 June
2001, entered into force 1 February 2004 see, www.acap.aq.
39Sherry P. Broder and Marcus Haward, The International Legal Regimes Governing
Ocean Iron Fertilization, in Harry S. Scheiber and Jin-Hyun Paik (eds.), Regions, Institutions, and Law of the Sea: Studies in Ocean Governance (Leiden, Martinus Nijhoff Publishers, 2013), 185220.
514
marcus haward
to warming water associated with climate change may bring new species into the
(relatively) cooler southern ocean. This is likely to increase interaction between
CCAMLR and pelagic fisheries regimes.
One of the most interesting aspects of jurisdiction within the Southern Ocean
relates to CCAMLR. CCAMLR is both explicitly embedded within the ATS,40
through direct references to the Antarctic Treaty in convention text41 but is also
free standing42 in the sense that its decision-making procedures and actions are
independent from the Antarctic Treaty. Its independence is reinforced by the fact
that its boundary extends northwards from the Antarctic Treaty Area set by Latitude 60 South. CCAMLRs spatial coverage is an area bounded to the north by a
boundary that approximated the position of the Antarctic Polar Front (formerly
termed the Antarctic Convergence) and to the south by the Antarctic continent.
CCAMLR was developed to encompass an ecosystem approach to management of
marine living resources of the Southern Ocean, and as a result pioneered a focus
that has become a more widely used as basis for regional fisheries management.
A key element of this approach was establishing a boundary that was based on
ecological rather than political-administrative principles. This raised the problem of jurisdiction over sovereign territory (the sub-Antarctic Islands of member
States) within the proposed boundary of the Convention led to significant differences between States.43
The interplay between CCAMLR and other components of the ATS has influence of the effectiveness of the broader regime. CCAMLRs focus on the conservation of marine ecosystems and living resources directly intersects with aspects
of the Madrid Protocol. This is most obvious in relation to protected areas.44 The
40Olav Schram Stokke, The Effectiveness of CCAMLR, in Olav Schram Stokke and Davor
Vidas (eds.), Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic
Treaty System (Cambridge: Cambridge University Press, 1997), 121.
41 See, particularly, Convention for the Conservation of Antarctic Marine Living Resources,
Articles III, IV, V.
42Richard A. Herr, CCAMLR and the Environmental Protocol: Relationships and Interactions, in Davor Vidas (ed.), Implementing the Environmental Protection Regime for the
Antarctic (Dordrecht: Kluwer, 2000), 274.
43James N. Barnes, The Emerging Convention on the Conservation of Antarctic Marine
Living Resources: An Attempt to Meet the New Realities of Resource Exploitation in
the Southern Ocean, in Jonathan I. Charney (ed.), The New Nationalism and the Use of
Common Spaces (Totowa: Allanheld Osmun & Co., 1982), 239286. This issue, pursued
vigorously by France, was resolved through what is known as The Chairmans Statement, appended to the Convention as an Annex and included in the Final Text of
the Convention for the Conservation of Antarctic Marine Living Resources as adopted
by the diplomatic conference that concluded its negotiation. See Stuart Kaye, Marcus
Haward and Robert Hall, Managing Marine Living Resources, The 1970s1990s, in
Marcus Haward and Tom Griffiths (eds.), Australia and the Antarctic Treaty System:
Fifty Years of Influence (Sydney: UNSW Press, 2011), 164180.
44Note Annex V of the Protocol, Area Protection and Management.
the southern ocean, climate change and ocean governance
515
process through which marine protected areas (MPAs) were to be created took
some time to establish, but this issue area also reflected aspects of the CCAMLR
Commissions internal deliberations in dealing with MPAs.45
Regime Competence and the Limits of Maritime Jurisdiction
The interplay and overlap between these instruments governing Antarctica
and the Southern Ocean, and their associated regimes has been the focus of
research on effectiveness.46 This research was driven by the increasing breadth
and scope of international environmental and resource management regimes.
This research program has involved a number of major groups, as well as individual researches exploring the consequences, inter alia, of overlapping regimes.
A major question for this research has been assessing how regimes interact, and
the analysis of the effects of multiple regimes.47
More recently research on the concept of regime interplay has directed attention towards the way in which regimes interact, the type and level of interplay.
This interplay is seen as a key factor related to regime effectiveness.48 These
assessments of effectiveness identified issues in overlapping jurisdiction and
claims for competence in specific areas and thus address key element of governance, and are also discussed in a following section. The interactions between
the ATS and the LOSC, and between the ATS and ICRW as well as the interplay
within the ATS between CCAMLR and the Madrid Protocol relate directly to differing spatial coverage of these instruments. Article VI of the Antarctic Treaty
defines its area of application as south of Latitude 60o South. This area includes
all ice shelves and airspace, but does not include airspace above high seas. While
the Treaty applies to marine areas it explicitly states that it does not prejudice
high seas rights in international law. The interplay between the ATS and other
instruments and regimes, particular the LOSC has been noted in relation to the
45Marcus Haward, Marine Resources Management, Security and the Antarctic Treaty
System: An Ongoing Agenda? in Alan D. Hemmings, Donald R. Rothwell and Karen N.
Scott (eds.), Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives
(Oxford: Taylor and Francis, 2012), 226.
46See, for example, Richard A Herr, Antarctica Offshore: A Cacophony of Regimes
(Hobart: Antarctic Cooperation Research Centre, 1995); Stokke and Vidas, Governing
the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System; Haward,
The Law of the Sea Convention and the Antarctic Treaty System; Constraints or
Complementarity.
47Edward L. Miles, Arild Underdal, Steinar Andresen, Jrgen Wettestad, Jon Birger
Skjrseth, and Elaine M. Carlin, Environmental Regime Effectiveness: Confronting Theory
With Evidence (Cambridge, MA: Massachusetts Institute of Technology Press, 2002).
48Helmut Breitmeier, Oran R. Young and Michael Zrn, Analyzing International Environmental Regimes: From Case Study to Database, (Cambridge MA: Massachusetts Institute
of Technology Press, 2006).
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question of maritime zones (most notably the extended continental shelf) off
territorial claims in Antarctica.49
There are other examples that suggest that impacts of multiple regimes have
not been integrated, and provide interesting insights into the broader issues of
competence and jurisdiction. The question of Antarctica had been deliberately
excluded from discussions at the Third United Nations Conference on the Law
of the Sea (UNCLOS III),50 and the attempt to bring management of Antarctica
within the United Nations was resisted by the ATCPs.51 The ATS52 has been subject to criticism for resisting the extension of the CBD or World Heritage Convention to the treaty area, or for failing to address key issues such as whaling.
CCAMLR applies to Antarctic marine living resources with the notable exception of whales, by parties consistent interpretation of Article VI of this convention
that: Nothing in this Convention shall derogate from the rights and obligations
of Contracting Parties under the International Convention for the Regulation of
Whaling and the Convention for the Conservation of Antarctic Seals as meaning
that whaling and management of whales are the responsibility of the International Whaling Commission (IWC). The quarantining of management of whaling
within the IWC has led to tentative linkages being developed between it and
CCAMLR, despite the latter being charged with applying an ecosystem approach
to management of marine living resources of the Southern Ocean. While the
ATCPs have avoided discussing whaling53 it is likely that this issue will continue
to have impact within the Antarctic Treaty area (if not the ATS), particularly as
a result of Japanese scientific whaling program in the waters off Australian and
New Zealand territorial claims.
Climate change is likely to impact on existing regimes as it affects the physical
and ecological characteristics of the southern ocean as well as the interests of
States with sub-Antarctic territories outside the Antarctic Treaty area. The linking of physical and ecosystem change with political interests identifies climate
change as enhancing regime interplay with concomitant impacts on maritime
jurisdiction and governance. CCAMLR, for example, is likely to be more engaged
with regional fisheries instruments such as the Convention for the Conservation of
Southern Bluefin Tuna,54 and the Convention on the Conservation and Management
49Haward, The Law of the Sea Convention and the Antarctic Treaty System, 232.
50Ibid.
51 Marcus Haward and David Mason, Australia, the United Nations and the Question of
Antarctica, in Haward and Griffiths (eds.), Australia and the Antarctic Treaty System:
Fifty Years of Influence, 202221.
52Or, more correctly, its constituent ATCPs.
53Even when issues such as ship operation and safety (as in 2007 related to the management of a fire and fatality on the Japanese whaling factory ship Nisshin Maru) are raised
within the ATCM.
54Convention for the Conservation of Southern Bluefin Tuna, opened for signature 10 May
1993, entered into force 30 May 1994, 1819 UNTS 360.
the southern ocean, climate change and ocean governance
517
of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean.55 The
Convention for the Conservation of Southern Bluefin Tuna manages southern bluefin tuna throughout its range. As a result potential operational interplay56 exists
between it and CCAMLR.57 These instruments extend through the northern areas
of the CCAMLR Area to the boundary of the Antarctic Treaty, while in the Indian
Ocean, the Indian Ocean Tuna Commission, the Southwest Indian Ocean Fisheries Commission and Southeast Atlantic Fisheries Organization bound the CCAMLR area.
The impacts of climate change may challenge existing management arrangements and heighten the salience of ongoing research into the scope and magnitude of climate change as well as the resilience of regimes and instruments.
Previous research has focused on the effectiveness of the relevant instruments and
regimes, in simple terms the extent to which the instruments achieve their
stated objectives. Climate change may be seen as an extra-regime driver that
complements and extends governance challenges related to jurisdiction and
effectiveness.
Challenges to Governance Arising from Climate Change in the
Southern Ocean
The biophysical impacts of climate change on the cryosphere in the Southern
Ocean and Antarctica are likely to have concomitant challenges to governance,
focusing particularly on issues related to maritime jurisdiction and coverage of
regimes. Much scientific research has focused on resilience of species and ecosystems to increased climate variability and changes. It is clear, too that research
into institutional resilience is needed; the extent to which forthcoming challenges
can be met by robust regimes.
Changes in physical and biological oceanographic conditions are likely to
encourage range shifts for species. The Antarctic Peninsula is a global hot spot
for climate change,58 with observed changes in distribution of terrestrially based
species such as penguins, with these species moving southward down the peninsula being recorded:
55Convention on the Conservation and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean, opened for signature 5 September 2000, entered
into force 19 June 2004, 40 (2001) ILM 277.
56Olav Schram Stokke, Governing High Seas Fisheries (Oxford: Oxford University Press,
2001), 9.
57Beth Clark and Alan D. Hemmings, Problems and Prospects for the Convention on
the Conservation of Antarctic Marine Living Resources Twenty Years On, Journal of
International Wildlife Law and Policy, 4 (2001): 4762.
58Constable and Doust, Southern Ocean Sentinel, 36.
518
marcus haward
Marine ecological systems cope with short-time changes by altering migration and
distribution patterns, changing species composition and changing diets and growths
rates; over the longer term adaptive changes lead to increased turn-over rates and
changes in structure and function of the system.59
These climate induced distribution60 or range shifts may have broader impacts
on governance. Rising seawater temperatures may lead to changes in distribution of marine species such as a fish, with species moving polewards into cooler
waters of the Southern Ocean
As noted above changes in sea ice provide opportunities for increased access
to areas for marine based industries including fisheries biological prospecting
and tourism while raising other challenges to governance. Commercial fisheries
in the Southern Ocean occur on or near the continental shelves of sub-Antarctic islands or off the Antarctic itself and are managed by CCAMLR. The major
Southern Ocean species that are harvestedicefish, toothfish and krillare not
migratory so remain in the region year-round.61 Changing sea ice conditions will
raise fisheries management issues, for example access to fishing grounds may be
increased if sea ice reduces and vessels are build to operate in winter conditions.
At the same time reductions in winter sea ice may have impacts on ecosystem
viabilityaffecting the production of sea ice algae on which krill and other species depend.
CCAMLR has been at the forefront in the global effort to address unregulated
fishing. The term and concept of illegal unregulated and unreported (IUU) fishing
originated from CCAMLR.62 While CCAMLR has been successful in addressing IUU fishing,63 changes in environmental conditions may encourage further
unregulated activity. Any increase in illegal fishing would be devastating to target and by-catch species, and undesirable for a number of other reasons as well:
CCAMLRs authority would be further undermined; fish stocks could not be accurately assessed; quotas would be decreased to reflect increased illegal activity and
thus negatively impact on legal fishers; and there would be increased impost on
59R. Ian Perry, Rosemary E. Ommer, Manuel Barange, Svein Jentoft, Barbara Neis and
U. Rashid Sumaila, Marine Social-Ecological Responses to Environmental Change and
the Impacts of Globalization, Fish and Fisheries, 12 (2011): 427.
60Jason S. Link, Janet A. Nye and Jonathan A. Hare, Guidelines for Incorporating Fish
Distribution Shifts into a Fisheries Management Context, Fish and Fisheries, 12 (2011):
461469.
61 Antarctic Climate and Ecosystems Cooperative Research Centre, Changes to Antarctic
Sea Ice, 13.
62Marcus Haward, IUU Fishing: Contemporary Practice, in Alex G. Oude Elferink and
Donald R Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Leiden: Martinus Nijhoff Publishers, 2004), 87106.
63Kaye, Haward and Hall, Managing Marine Living Resources, The 1970s1990s.
the southern ocean, climate change and ocean governance
519
monitoring and surveillance resources (even perhaps Search and Rescue (SAR)
resources).64
The development of a conservation regime for Southern Ocean seabirds, particularly species of albatross and petrel, illustrates opportunities and constraints
related to the questions competence and jurisdiction. The issue of the depletion
of populations of albatross species through impacts of fishing was first recorded
in the CCAMLR Area and discussed in the Scientific Committee of the CCAMLR
Commission. As a result the matter was a focus of concerted action, establishment of a Commission working Group and enactment of Conservation Measures
under the convention.65 ACAP is established under the CMS, an instrument outside the ATS. CMS provides a legal base for the ACAP that extends competence
outside the Antarctic Treaty Area and covers what are termed range states for
these species. It is an outcome, and an example, of positive interplay, as ACAP
provides reports to, and is an observer at, the ATCM.
Antarctic tourism is a significant activity that is not directly governed by a
formal instrument within Antarctic Treaty System, although measures and guidelines have been developed and with the IMO developed Polar Shipping Code
being extended to Antarctic waters. A strong industry bodythe Association of
Antarctica Tour Operators (IAATO)attempts to enforce industry standards and
supports initiatives developed through the ATS. The grounding of the MS Nordkapp off Deception Island in January 2007, and sinking of the MS Explorer, with
passengers and crew forced to abandon ship in November 2007, as well as the
more recent incidents involving the Ciella II in January 2010 (damage to a propeller following a grounding) and the Polar Star striking an unchartered rock in
January 2011 indicates the inherent risks with ship-borne tourism.
While these incidents occurred off the Antarctic Peninsula in West Antarctica, close to other ships and shore-based SAR capability, they are reminders of
the challenges to ship-borne operations in the Antarctic. The inquiry after the
Explorer incident recorded that the characteristics of the sea ice were challenging
for the (Northern-hemisphere) ice-qualified Master of the vessel. Declines in the
extent and thickness of sea ice may encourage tourist vessels to new, unchartered areas that have a higher risk of incidents. At the same time tourism to East
64Julia Jabour, Underneath the Radar: Emergency Search and Rescue Insurance for East
Antarctic Tourism, Tourism in Marine Environments, 4/23 (2007): 203220.
65Marcus Haward, A Bergin and Robert Hall, International Legal and Political Bases to
the Management of the Incidental Catch of Seabirds in Graham Robertson and Rosemary Gales (eds.), Albatross: Biology and Conservation (Chipping Norton: Surrey Beatty
and Sons NSW, 1998), 255266; See also, Robert Hall and Marcus Haward, Enhancing
Compliance with International Legislation and Agreements Mitigating Seabird Mortality on Longlines, Marine Ornithology, 28 (2000): 183190; and Robert Hall, Saving
Seabirds, in Lorne Kriwoken, Julia Jabour and Alan Hemmings (eds.), Looking South:
Australias Antarctic Agenda, (Sydney: The Federation Press, 2007), 117132.
520
marcus haward
ntarctica (the area south of New Zealand and Australia) is inherently more risky
A
due to the areas remoteness, concomitant reduced volume of shipping and limited shore-based infrastructure.66
The waters off East Antarctica have seen incidents involving a whaling factory
vessel and fishing vessels in these high latitude regions of the Southern Ocean.
A fire on the Japanese-flagged whaling factory ship Nisshin Maru on 15 February
2007 led to the loss of the life on one crew-member and the disablement of the
vessel close to a major penguin rookery near Cape Adare, Antarctica. In December 2012 a sinking of a South Korean-flagged fishing vessel resulted in the loss
of 22 lives and two incidents involving fishing vessels occurred in the Ross Sea
over the Austral summer of 201112; a Russian flagged vessel was holed when it
became beset in ice but was able to be repaired, while a South-Korean flagged
vessel caught fire with loss of three crew and sank.67
The IMO had been addressing issues related to ships operating in polar waters
since the late 1990s, with the guidelines for Arctic shipping released in 2002 (IMO
2012). It began work on Antarctic shipping in 2007, in response to increases in
numbers and size of vessels engaged in Antarctic Tourism. ATCPs also expressed
concern over the environmental impacts of ship-related incidents, particularly
related to pollution from fuel oil through accidental discharges or major accidents. In 2005 at ATCM XXVIII the ATCPs, in recognising the problem of heavy
fuel oil (HFO), and the competence of the IMO in relation to shipping regulations, agreed to request the IMO to examine mechanisms for restricting its use
in Antarctic waters.68 This matter was addressed by the IMO in amendments to
MARPOL, which established a ban on HFO in the sea areas south of latitude 60
south, which took effect on 1 August 2011. In April 2009 the Antarctic Treaty Consultative Parties agreed a Resolution to support the work at the IMO in developing
66Jabour, Underneath the Radar.
67Antarctic Treaty Consultative Meeting ATCM XXXV/CEP XV 2012 ATCM Response
to CCAMLR Fishing Vessel Incidents WP049 www.ats.aq/devAS/ats_meetings_doc_
database.aspx?lang=e&menu=2.
68Antarctic Treaty Consultative Meeting, Decision 8 (2005) Use of Heavy Fuel Oil
(HFO) in Antarctica, www.ats.aq/documents/cep/atcm28_d8_e.pdf. In 1995 the ATCM
adopted a procedure that provided clearer guidance on the status of outcomes of the
ATCM, that had previously all been termed Recommendations. Measures, Decisions
and Resolutions, which are adopted at the ATCM by consensus, give effect to the principles of the Antarctic Treaty and the Environment Protocol and provide regulations
and guidelines for the management of the Antarctic Treaty area and the work of the
ATCM. Decisions, which address internal organizational matters of the ATCM, and
Resolutions, which are hortatory texts, are not legally binding on Contracting Parties.
In contrast, Measures are legally binding on the Consultative Parties once they have
been approved by all Consultative Parties. Antarctic Treaty Secretariat, www.ats.aq/e/
ats_meetings_atcm.htm.
the southern ocean, climate change and ocean governance
521
mandatory requirements for polar shipping,69 although progress has been slower
than the parties expected in concluding the Polar Shipping Code, now expected
to be concluded in 2015.
The intersection of marine safety, shipping and resource or environmental
management regimes in the management of activities such as marine-based
tourism and fishing illustrates the significance of regime interplay influenced by
agreed scope and focus (jurisdiction) of the regimes. Emergent or new issue areas
will also involve regime interplay, but with an initial focus on competence giving
rise, potentially, to competition between regimes. The issue of ocean fertilisation
is an example here:
Research on ocean fertilisation has identified the potential for increased CO2 uptake
from added iron or similar elements to the ocean to stimulate phytoplankton growth.
At the same time the impacts of such manipulation, if undertaken on the scale
needed to enhance oceanic drawdown of CO2 as a climate change mitigation strategy, are unknown.70
Ten open-ocean fertilisation experiments have been undertaken to date.71
The question of competency over regulation of iron fertilisation activities
was given impetus by the almost contemporaneous discussions within the IMO
supported Scientific Groups to the London Convention and London Protocol and
the CBD in May 2008, resulting in different outcomes and potential conflicting
obligations for States party to both CBD and the London Convention and London
Protocol.72 At its 2008 Meeting in Bonn, Parties to the CBD adopted Decision
IX/16 urging States to use utmost caution when considering proposals for ocean
iron fertilisation. Decision IX/16 recognised the work being undertaken by the
London Convention and London Protocol but established a moratorium on ocean
fertilisation activities beyond national jurisdiction, including those involving
legitimate scientific research. This caused some concern from within the scientific community. The Intergovernmental Oceanographic Commission (IOC) was
69Antarctic and Southern Ocean Coalition, Mandatory Polar Shipping CodeMaking
Progress, Press Release October 31 2010, Washington.
70Marcus Haward, Climate Change: Antarctica and the Southern Ocean, 121122.
71 The experiments were Ironex 1995, SOIREE (Southern Ocean Iron Release Experiment) 1999, EisenEX 2000, SEEDS (Subantarctic Pacific Iron Experiment for Ecosystem Dynamics Study) 2001, SOFeX (Southern Ocean Iron ExperimentsNorth and
South) 2002, SERIES (Subarctic Ecosystem Response to Iron Enrichment Study) 2002,
SEEDS II 2004, EIFEX (European Iron Fertilization Experiment) 2004, CROZEX (CROZet
natural iron bloom and Export experiment) 2005, LOHAFEX 2009, see Philip W. Boyd,
T. Jickells, C. S. Law, and others, Mesoscale Iron Enrichment Experiments 19932005:
Synthesis and Future Directions, Science, 315 (2007): 612617.
72Haward, Climate Change: Antarctica and the Southern Ocean.
522
marcus haward
concerned that CBD parties had placed unnecessary and undue restriction on
legitimate scientific activities.73
The ocean fertilisation experiments including the German-Indian LOHAFEX
experiment in the South Atlantic in January 2009, occurring after the CBD resolution, have been classed as marine scientific research, sanctioned through PartXIII
of the LOSC. With the exception of LOHAFEX, none of these experiments had
caused any controversy or complications. LOHAFEX was undertaken by a joint
Indian-German research team took part in the LOHAFEX experiment in the South
Atlantic LOHAFEX, coordinated by the Alfred Wegener Institute in Germany that
aimed to provide more basic information to further our understanding of the
role of ocean ecosystems in the global carbon cycle.74 The LOHAFEX experiment
was the subject of criticism from environmental non-governmental organisations
who urged the German government to halt the experiment as was not compliant with the moratorium established by the CBD. The Alfred Wegner Institute
noted that the scientific experiment is in accordance with the resolution of the
London Convention on the regulation of ocean fertilisation from October 2008
and the Decision of the Convention on Biological Diversity on ocean fertilisation from May 2008 that call for further research to enhance understanding of
ocean iron fertilization.75 The emergent issue of ocean fertilisation may provide
insights into potential governance challenges arising from climate change related
regime interplay.
Conclusion
Climate change sharpens the focus on the effectiveness of existing arrangements and opening up new and emergent issues, as well as enhancing the need
for greater understanding of the scope and magnitude of change. As ecosystem
resilience is significant in responses to changing environmental conditions so
too is institutional resilience. While the impacts of climate change are hard to
predict, separating decadal scale variability from longer-term change, regimes
will need to be more adaptive, which in itself is a significant response. As ecosystems change or adapt, the locations of optimal resource areas change, with
73Broder and Haward The International Legal Regimes Governing Ocean Iron Fertilization. See also Intergovernmental Ocean Commission (IOC) of UNESCO, Ad Hoc Consultative Group on Ocean Fertilization, Report on the IMO London Convention Scientific
Group Meeting on Ocean Fertilization, (15 June 2008, Paris).
74Alfred Wegener Institute, Press Release LOHAFEX: An Indo-German iron fertilization
experimentWhat are the effects on the ecology and carbon uptake potential of the
Southern Ocean? AWI, 13 January 2009, www.awi.de/en/news/press_releases/detail/
item/lohafex_an_indo_german_iron_fertilization_experiment_what_are_the_effects_
on_the_ecology_and_carb/?cHash=725a5b9368.
75Ibid.
the southern ocean, climate change and ocean governance
523
c onsequence that activities and operations are also likely to change. This may
have significant implications for example in terms of existing Southern Ocean
fisheries and tourism activities, and may impact emergent issues such as marine
biological prospecting as well as on environmental protection regimes. These factors have a direct impact on maritime jurisdiction, the effectiveness of management regimes and the interests of States party to these regimes.
chapter twenty-three
Whaling in the Antarctic: Protecting Rights in Areas beyond
National Jurisdiction through International Litigation
Natalie Klein and Tim Stephens*
Introduction
As States continue to assert greater authority and control over ocean areas and
their resources, questions arise as to how the limits of maritime jurisdiction may
be tested before international courts and arbitral institutions. Just such questions
are raised in Australias case against Japan before the International Court of Justice (ICJ), Whaling in the Antarctic,1 in which Australia is seeking to stop Japans
large-scale research whaling program. While New Zealand did not join Australia
as an applicant, it did successfully seek to intervene in the proceedings to provide
support to Australias arguments before the ICJ.2 The case prompts vital and not
fully resolved questions as to the enforceability of rights and obligations in areas
beyond national jurisdiction. Which States are owed rights sufficient to accord
them standing before an international court or tribunal? What is the interplay
between substantive rights and obligations in areas beyond national jurisdiction
or in the common heritage of humankind? Further, what are the admissibility
requirements for the purposes of resolving international claims in litigation?
This chapter will first outline the Whaling in the Antarctic case, highlighting
the claims that Australia is asserting and setting out the broader issues that are
*Natalie Klein is Professor and Dean, Faculty of Law, Macquarie University, Australia;
Tim Stephens is Associate Professor and Co-Director, Sydney Centre for International
Law, Faculty of Law, University of Sydney, Australia. This chapter was completed in
early June 2013, prior to the oral hearings in the Whaling in the Antarctic Case which
commenced on 26 June 2013. As such the authors were not privy to the memorial and
counter-memorial, which were made public only on the commencement of the oral
proceedings.
1 Whaling in the Antarctic (Australia v. Japan), International Court of Justice, Application
Instituting Proceedings, filed 31 May 2010.
2Whaling in the Antarctic (Australia v. Japan), International Court of Justice, Declaration
of Intervention of New Zealand, Order of 6 February 2013.
526
natalie klein and tim stephens
at play, or may be brought into play. Particular attention is devoted to issues
relating to Australias rights of standing before the ICJ. The example of the
Whaling in the Antarctic case is then used to examine more broadly the role for
international litigation in pursuing claims that arise from activities in areas
beyond national jurisdiction. The central issues for consideration are whether
standing requirements before international courts and tribunals are conducive to
resolving such disputes, and whether any adjustments are warranted.
Whaling in the Antarctic: An Overview
Background to the Case: the ICRW and JARPA II
Australias case against Japan before the ICJ primarily concerns the application of
the International Convention for the Regulation of Whaling (ICRW)3 and its accompanying Schedule, an integral part of the Convention.4 The ICRW was adopted
with the aim of establishing a system of international regulation to ensure the
proper and effective conservation and exploitation of whale stocks.5 It also established the International Whaling Commission (IWC),6 which has become the primary international organisation for promoting cetacean conservation.7 In light
of the decline in whale numbers and ongoing uncertainty about the health of
whale populations, the IWC adopted a zero-catch commercial whale quota that
came into force in 1986.8 The IWC also resolved to keep the moratorium on commercial whaling under review on the basis of the best scientific advice available.9
More recently, in 1994, the IWC created sanctuaries in the Indian Ocean and the
Southern Ocean in which commercial whaling is prohibited.10
Although commercial whaling has largely been halted through these initiatives,11
States remain entitled to conduct scientific whaling, including in the two whale
sanctuaries, under Article VIII of the ICRW. Article VIII provides in relevant part:
Convention for the Regulation of Whaling (ICRW), opened for signature
2 December 1946, entered into force 10 November 1948, 161 UNTS 72.
4Ibid., Article 1.
5Ibid., Preamble.
6Ibid., Article 3.
7Under the United Nations Convention on the Law of the Sea (LOSC), opened for signature
10 December 1982, entered into force 16 November 1994, 1833 UNTS 396, Article 65 and
Article 120, by reference to Article 65, refers to the need for States to cooperate through
the relevant international organization.
8ICRW Schedule, paragraph 10 (e).
9Ibid., This provision will be kept under review, based upon the best scientific
advice....
10Ibid., Schedule, paragraphs 7 (a), (b).
11 Except for Norway and Iceland, which continue commercial whaling under an objection and reservation, respectively, to the commercial whaling moratorium.
3International
whaling in the antarctic
527
(1) Notwithstanding anything contained in this Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that
national to kill, take, and treat whales for purposes of scientific research subject
to such restrictions as to the number and subject to such other conditions as
the Contracting Government thinks fit, and the killing, taking, and treating of
whales in accordance with the provisions of this Article shall be exempt from
the operation of this Convention...
(2) Any whales taken under these special permits shall so far as practicable be
processed and the proceeds shall be dealt with in accordance with directions
issued by the Government by which the permit was granted...12
Whaling conducted under special permit is essentially unilateral, in that although
special permits must be reviewed by the Scientific Committee of the IWC, the
Committee has no capacity to veto their issuance.
Japan opposed the moratorium, and initially lodged an objection to it. Following pressure from the United States it withdrew this objection shortly afterwards.13
Japan then commenced special permit whaling through two programs, the Japanese Whale Research Program under Special Permit in the Northern Pacific
(JARPN) and the Japanese Whale Research Program under Special Permit in Antarctica (JARPA). Although in its application to the ICJ Australia claims that both
programs are unlawful,14 Australias primary focus is JARPA, given that it regularly
takes place in the waters adjacent to the Australian Antarctic Territory (AAT).
JARPA ran for 18 years, and when it concluded in 2004, Japan announced
that it would move immediately into a two-year feasibility study for a new and
expanded programme of research, JARPA II. Under JARPA, Japan took 6,800 Antarctic minke whales. JARPA II has been extended to allow for an annual quota of
850 Antarctic minke whales, as well as 50 fin whales and 50 humpback whales.
No humpbacks have in fact been taken, as Japan acceded to a request by the
United States to suspend this aspect of JARPA II. Moreover, the quotas for minkes
and fins have not been met due in large part to the actions of the Sea Shepherd Conservation Society in interfering with Japanese whaling vessels and also
because of several accidents, including a fire on the Japanese factory ship the
Nisshin Maru in 2007.
JARPA II includes among its claimed objectives the monitoring of the Antarctic ecosystem. It is carried out across a wide area of the Southern Ocean
12ICRW, Article VIII (emphasis added).
13Ibid., Schedule, note to paragraph 10 (e). Japan withdrew objections from 1 May 1987
with respect to commercial pelagic whaling; from 1 October 1987 with respect to commercial coastal whaling for minke and Brydes whales; and from 1 April 1988 with
respect to commercial coastal sperm whaling.
14Whaling in the Antarctic (Australia v Japan), Application Instituting Proceedings, paragraph 34.
528
natalie klein and tim stephens
near Antarctica, including in the waters adjacent to the AAT and New Zealands
Ross Dependency. The fact that JARPA II is conducted within the AAT enabled
the litigation in Humane Society International v Kyodo Senpaku Kaisha Ltd15 in the
Federal Court of Australia, in which it was held that the company undertaking
JARPA II for the Japanese Institute for Cetacean Research had violated an Australian federal statute, the Environment Protection and Biodiversity Conservation
Act 1999 (Cth) (EPBC Act). The EPBC Act establishes a whale sanctuary within
the 200 nm exclusive economic zone (EEZ) of Australia, including the AAT,
and prohibits whaling within these waters. Given that Japan does not recognise
Australias claim to the AAT nor the adjacent EEZ, the Australian Government
has not sought to enforce the Federal Court decision. For the same reason, Australia makes no mention of its claim to Antarctica or adjacent maritime areas in
its application to the ICJ in the Whaling in the Antarctic case.
Within the IWC, JARPA II has attracted significant protest, with resolutions
adopted in 2005 and 2007 by the Commission requesting Japan to vary its research
programme so that only non-lethal techniques are used.16 However, several IWC
members have supported Japans position, and debates on the issue at the IWC have
been characterised as an impasse between anti-whaling and pro-whaling States.
Considerable diplomatic efforts have been made to overcome differences of opinion as to the ongoing need for the zero-catch quota, and what scientific programs
should be put in place to ensure the conservation and management of different
whale species. Between 2008 and 2010, the IWC was locked in discussions on the
reform of the ICRW and the IWC which culminated in 2010 in the IWC Chair
and Vice-Chair proposing a Consensus Decision to Improve the Conservation
of Whales17 which, in summary, proposed the resumption of limited scale commercial whaling and the cessation of scientific whaling in the Southern Ocean.
The Consensus Decision has not, in fact, attracted any consensus, and it was
15Humane Society International v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510 (23 November 2004) (hearing of motion for service of originating process outside jurisdiction);
[2005] FCA 678 (27 May 2005) (refusing leave to serve after receiving submissions
from Attorney-General); [2006] FCAFC 116 (14 July 2006) (Full Federal Court overturns
decision to refuse leave to serve); [2007] FCA 124 (16 February 2007) (granting leave
for substituted service of originating process); [2008] FCA 3 (15 January 2008) (declaration of breach of Australian law and granting of injunction); [2008] FCA 36 (18 January
2008) (granting leave for substituted service of orders).
16In 2005 the IWC strongly urge[d] the Government of Japan to withdraw its JARPA II
proposal or to revise it so that any information needed to meet the stated objectives of
the proposal is obtained using non-lethal means: IWC Resolution 20051, http://www
.iwcoffice.org/meetings/resolutions/resolution2005.htm. In 2007 the IWC call[ed]
upon the Government of Japan to suspend indefinitely the lethal aspects of JARPAII
conducted within the Southern Ocean Whale Sanctuary, IWC Resolution 20071,
http://www.iwcoffice.org/meetings/resolutions/resolution2007.htm.
17IWC 62/7 Agenda Item 3 (2010).
whaling in the antarctic
529
not adopted at the IWC62 or IWC63 meetings. Against this background, Australia
noted in its application that:
[i]t has become clear that current and proposed IWC processes cannot resolve the
key legal issue that is the subject of the dispute between Australia and Japan, namely
the large-scale special permit whaling under JARPA II.18
Australias case against Japan therefore has the potential to resolve the central
question in the diplomatic deadlock over whaling, namely the scope and application of the scientific whaling provision of the ICRW.
Australias Case at the ICJ
In its application, Australia bases the jurisdiction of the ICJ on Article 36(2) of
the Courts Statute, which permits States to accept in advance the compulsory
jurisdiction of the Court. Australia and Japan have both issued such declarations,
albeit with certain reservations, and the limits of Courts jurisdiction are set by
the narrowest of these reservations.19 Of relevance in this case are exceptions
by both Australia and Japan as to the Courts jurisdiction to resolve disputes
where there exists an alternative means of dispute settlement.20 On its face,
these reservations remove from the Courts purview any claims that may arise
under the United Nations Convention on the Law of the Sea (LOSC), because it possesses its own compulsory dispute settlement regime.21 It may be significant in
this regard that Australia did not invoke any provision of LOSC in its Application.
However, these reservations may have implications for other treaties on which
either party seeks to rely. In particular, Australia has claimed violations of the
Convention on Biological Diversity (CBD)22 and the Convention on the International
18 Whaling in the Antarctic (Australia v. Japan) Australian Application, [29]. See also, Natalie Klein, Whales and Tuna: The Past and Future of Litigation between Australia and
Japan, Georgetown International Environmental Law Review, 22 (2009): 143.
19 Norwegian Loans Case (France v Norway) (1957) ICJ Reports 9.
20Australias reservation to Article 36(2) reads: (a) any dispute in regard to which the
parties thereto have agreed or shall agree to have recourse to some other method of
peaceful settlement (22 March 2002). Japans reservation reads: This declaration does
not apply to disputes which the parties thereto have agreed or shall agree to refer for
final and binding decision to arbitration or judicial settlement (9 July 2007). Declarations Recognising the Jurisdiction of the Court as Compulsory, http://www.icj-cij.org/
jurisdiction/index.php?p1=5&p2=1&p3=3.
21 LOSC, Part XV.
22Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993, 1760 UNTS 79 (CBD).
530
natalie klein and tim stephens
Trade in Endangered Species (CITES),23 both of which have their own internal
dispute settlement systems.24
Australia has also purported to exclude maritime boundary disputes from the
Courts jurisdiction by the following exception to its acceptance of the Courts
jurisdiction:
(b) Any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or
arising out of, concerning, or relating to the exploitation of any disputed area of
or adjacent to any such maritime zone pending its delimitation.25
Potentially, Japan could argue that the ongoing uncertainty over sovereignty
claims to Antarctica and concomitant claims to adjacent maritime areas are fundamental to Australias right to make any claims about Japans whaling activities.
On this basis, the Court could therefore lack jurisdiction because Japan is entitled
to rely on Australias reservation. However, the difficulty with this jurisdictional
argument is that Australias claim is not made on the basis of a claim to the EEZ
offshore the AAT, and instead raises a complaint about Japans scientific whaling programme per se, wherever it is conducted. As such the Court would not be
required to rule upon the status of a disputed area of maritime space, let alone
be asked to delimit a maritime boundary.
The main substantive claims of Australia against Japan concern violations of
the following obligations:
(1) The obligation under paragraph 10(e) of the Schedule to the ICRW to observe
in good faith the commercial whaling moratorium;
(2) The obligation under paragraph 7(b) of the Schedule to the ICRW to act in
good faith to refrain from commercial whaling for humpback and fin whales
in the Southern Ocean Sanctuary;
(3) The obligation under article VIII of the ICRW having regard to the scale of
the JARPA II program, to the lack of any demonstrated relevance for the conservation and management of whale stocks, and to the risks presented to
targeted species and stocks;26
(4) The prohibition under the CITES article II on introducing from the sea an
Appendix I listed species (in relation to humpbacks, but not minke or fin
whales (in relation to which Japan has entered reservations));
(5) Obligations under the CBD, including to ensure that activities do not cause
damage to the environment of other states (Article 3).
23Convention on International Trade of Endangered Species of Wild Flora and Flora, opened
for signature 3 March 1973, entered into force 1 July 1975, 993 UNTS 243 (CITES).
24CITES, Article 18; CBD, Article 27.
25Australias Declaration Recognising the Jurisdiction of the Court as Compulsory,
22 March 2002, http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3.
26Whaling in the Antarctic (Australia v Japan), Application Instituting Proceedings, 16,
paragraph 37.
whaling in the antarctic
531
The nub of the dispute is whether Japan is conducting (unlawful) commercial
whaling, or (lawful) scientific whaling. Australia will need to establish, on the
merits, that Japans take is tantamount to a commercial harvest and that JARPA
II is so lacking in scientific quality that it could only be considered as commercial
whaling. JARPA II has been criticised for its scientific merit on the basis of the
lack of peer-reviewed publications resulting from the research, as well as because
all information needed to conserve and manage whales are obtainable from nonlethal research techniques.27 Moreover, Australia contends that available scientific evidence indicates that there is a substantial decrease in minke stocks, that
virtually nothing is known about the health of fin whale stocks, and that recovery of humpback stocks may be because of mixing of stocks from other groups.28
To maintain lethal scientific research in these circumstances indicates a greater
interest in commercial endeavour than scientific endeavour.
Australia has sought orders from the Court that Japan:
(a) Cease implementation of JARPA II;
(b) Revoke any authorizations, permits or licences allowing the activities which
are the subject of this application to be undertaken; and
(c) Provide assurances and guarantees that it will not take any further action
under the JARPA II or any similar program until such program has been
brought into conformity with its obligations under international.29
In May 2011, Australia filed its Memorial, and the Court ordered that Japan submit its Counter-Memorial by March 2012. Although Japan could have filed pleadings objecting to the jurisdiction and admissibility of the dispute by August 2011,30
it did not do so. The possibility still remains that Japan raised such challenges
in its Counter-Memorial, particularly where those claims are considered so closely
linked to the merits that they need to be addressed at the same time. The other
significant development in relation to incidental (that is pre-merits) proceedings
is that Australia has not sought provisional measures from the Court, even though
Japan has sought to continue JARPA II since the institution of the case.
It will only be when the oral phase of the proceedings begins in late June 2013,
that the full shape of the Australian case and the Japanese counter-case will be
known, as until that time the contents of the pleadings and documents annexed
to them are confidential.31 Those pleadings will need to address not only the substantive questions as to the alleged breach by Japan of its obligations under the
27Commonwealth of Australia, Department of the Environment, Water, Heritage and
the Arts, Non-Lethal Research Techniques for Studying Whales (2010), http://www
.environment.gov.au/coasts/species/cetaceans/ publications/pubs/fs-techniques.pdf.
28Whaling in the Antarctic, Application Instituting Proceedings, 18, paragraphs 1316.
29Ibid., 18, paragraph 41.
30ICJ, Rules of Court 1978, Article 79.
31 Ibid., Article 53(2).
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natalie klein and tim stephens
ICRW, CITES and the CBD, but will also have to grapple with the issue of standing,
to which we now turn.
Australias Standing before the ICJ
Australias case against Japan does not concern activity that directly harms its
nationals or its resources. Japans whaling activity is not occurring in maritime
areas accepted by Japan, or by most other States, as being under Australian sovereignty and jurisdiction under international law.32 Indeed, Australia appears
deliberately to have sought to make its case against Japan sovereignty neutral.
In this situation, Japan may well argue that Australia is not injured or affected in
any way by its whaling program in Antarctic waters and that Australia therefore
lacks standing to present a claim against Japan before the Court. The case thus
brings to the fore the issue of how to challenge the actions of States that occur in
areas beyond national jurisdiction, and the viability of international adjudication
or arbitration in doing so.
Standing refers to the requirement that a State seeking to enforce a legal right
establish a sufficient link between itself and the legal rule that forms the subject
matter of the enforcement action.33 The State must have a legal interest in ensuring compliance with that obligation.34 The ICJ has been unequivocal in its jurisprudence in stating that only the party to whom an international obligation is
due can bring a claim in respect of a breach.35 While this statement appears selfevident, it raises several underlying questions, including most critically whether
any State party to a multilateral treaty has standing to complain about the breach
of the treaty by another Statethat is to say whether a multilateral treaty such
as the ICRW establishes obligations erga omnes partes susceptible to enforcement
32Australia has asserted rights over an EEZ extending off the Australian Antarctic Territory, and a whaling sanctuary applies within the Australian EEZ, which includes the
EEZ off the Australian Antarctic Territory. See the Environment Protection and Biodiversity Conservation Act 1999 (Cth). (EPBC Act). Australia does not purport to enforce its
laws against foreigners in this claimed EEZ. See Humane Society International v Kyodo
Senpaku Kaisha LtdOutline of Submissions of the Attorney-General of the Commonwealth as Amicus Curiae, [10], [20][22], and [28]. Such a stance is essential in light of
the fact that only France, New Zealand, Norway and the United Kingdom have recognised Australias rights in this area. See Standing Committee on Legal and Constitutional
Affairs, House of Representatives, Parliament of Australia, Australian Law in Antarctica
(1992) 9.
33Christian J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge:
Cambridge University Press, 2005), 26.
34South West Africa Cases (Ethiopia v Liberia; Liberia v South Africa) (Judgment) (1966)
ICJ Reports 6, 219 (South West Africa); Barcelona Traction, Light and Power Company,
Limited (Preliminary Objections) (Judgment) (1964) ICJ Reports 6, 3536.
35Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion
of 11 April 1949, (1949) ICJ Reports, 174, 181182.
whaling in the antarctic
533
by any party in respect of a breach. In this respect, it is also critical to consider
rules of State responsibility, often described as secondary rules of international
law, which set out the circumstances in which one State may invoke the responsibility of another State for an internationally wrongful act.
A decision on Australias standing to bring its case against Japan depends on
Australia establishing that it has a legally protected interest owed to it by Japan.
This decision will be informed by the earlier jurisprudence of the Court on questions of standing, and these are examined immediately below. In addition, the
International Law Commissions (ILC) work on State responsibility may well
have bearing on establishing what entitlement Australia has to invoke Japans
responsibility.
The Courts Jurisprudence on Standing
South West Africa Case
The most notable decision of the ICJ on the question of standing occurred in the
second phase of the South West Africa case,36 brought by Ethiopia and Liberia
challenging South Africas actions under a League of Nations Mandate. In the
first, preliminary objections phase of this case,37 the Court accepted, by a narrow
majority, that the applicant States had a legal right or interest to be protected.38
However, in what was styled as a second phase to the case, this decision was
effectively reversed when the Court determined that, because neither Ethiopia
nor Liberia was a party to the Mandate instrument under challenge, they lacked
standing.39 Any interest of Ethiopia and Liberia was no greater than any other
State and the Court explicitly rejected any notion of an actio popularis.40 Instead,
the Court commented:
Throughout this case, it has been suggested, directly or indirectly, that humanitarian
considerations are sufficient in themselves to generate legal rights and obligations,
and that the Court can and should proceed accordingly. The Court does not think so.
It is a court of law, and can take account of moral principles only in so far as they are
given sufficient expression in legal form. [...]
Humanitarian considerations may constitute the inspirational basis for rules of law,
just as, for instance, the preambular parts of the United Nations Charter constitute
the moral and political basis for the specific legal provisions thereafter set out. Such
interests do not in themselves amount to rules of law. All States are interestedhave
36South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase,
Judgment of 18 July 1966, (1966) ICJ Reports, 6.
37South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment of 21 December 1962, (1962) ICJ Reports, 319.
38Ibid., 343.
39South West Africa Cases, Second Phase, Judgment of 18 July 1966, 51.
40Ibid., 47.
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natalie klein and tim stephens
an interestin such matters. But the existence of an interest does not of itself entail
that this interest is specifically juridical in character. [...] In order to generate legal
rights and obligations, it must be given juridical expression and be clothed in
legal form.41
As a result, Ethiopia and Liberia lacked a sufficient interest to commence litigation against South Africa.
Australias situation in the Whaling in the Antarctic case is different from that
of Ethiopia and Liberia, as Australia is a party to the ICRW and can therefore rely
on legal rights and obligations that apply as between the parties to that treaty.
Equally, many other claims that may arise in relation to activities in areas beyond
national jurisdiction are likely to be drawn from multilateral treaties most notably
LOSC. Even if a State was not party to a treaty such as LOSC, its core obligations
relating to the freedoms of the high seas or the common heritage of humankind
are so well settled as a matter of customary international law that States seeking
to enforce these rights on an erga omnes basis would be able to demonstrate that
they possess a legally protected interest.
Barcelona Traction
In Barcelona Traction,42 Belgium was unable to establish that it had standing
to exercise a right of diplomatic protection against Spain for any unlawful act
committed against its nationals who were shareholders in a Canadian company
when the alleged injuries were to the company itself.43 The critical point was that
Belgium could not take up the claim of its nationals where the alleged injuries
were suffered by the company, rather than by the shareholders.44 The decision
does not necessarily deny standing in litigation where a State can rely on treaty
obligations owed to it to demonstrate a legally protected interest.
In Barcelona Traction, the Court noted that Belgium,
would be entitled to bring an international claim if it could show that one of its
rights had been infringed and that the acts complained of involved the breach of an
international obligation arising out of a treaty or a general law.45
This case is distinguishable from Australias situation in the Whaling in the Antarctic case, or potentially other claims to violations occurring in areas beyond
national jurisdiction, as obligations owed to States directly rather than through
41 Ibid., 34.
42Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), Second Phase, Judgment of 5 February 1970, (1970) ICJ Reports, 3.
43Ibid., 32.
44Herbert W. Briggs, Barcelona Traction: The Jus Standi of Belgium, American Society of
International Law, 65 (1971): 327345, 342.
45Ibid., 341 citing to Barcelona Traction, Light and Power Company, Limited (Belgium v.
Spain) (New Application: 1962), Second Phase, Judgment of 5 February 1970, 46.
whaling in the antarctic
535
the vehicle of diplomatic protection are at stake. What remains to be determined
(as discussed below) is whether a breach of an obligation affects Australia in such
a way as to give it standing. Is it, for instance, necessary to establish whether
Australias rights have been infringed more so than any other State party to
the ICRW?
Nuclear Tests Cases
In relation to challenges to standing for actions occurring in areas beyond national
jurisdiction, it is also worth considering the Nuclear Test cases, which Australia
and New Zealand instituted against France to challenge Frances nuclear tests
in the Pacific.46 Frances tests were not occurring in Australian or New Zealand
territory, although both States claimed that the tests subjected their territory to
radioactive fallout.47 Each applicant sought to protect their individual interests
as States, as well as the interests of the general community.48
The claims presented by Australia and New Zealand included alleged violations of the freedoms of the high seas. Those freedoms were said to have been
violated on the basis of obstructions to navigation and overflight because of prohibited and dangerous activities occurring at the test sites, and also on the basis
of the pollution caused by the tests that had the potential to damage marine
living resources and the marine environment.49 In asserting the claims relating
to the high seas Australia and New Zealand sought to vindicate the rights of all
States. This was in contrast to their more specific arguments concerning alleged
pollution within Australia and New Zealand from nuclear fallout. Ultimately neither issue was directly addressed by the ICJ, and in granting provisional measures
the Court referred only to potential direct impacts on Australia and New Zealand
rather than the environment in general terms.
46Nuclear Tests (Australia v. France), Judgment of 20 December 1974, (1974) ICJ Reports,
253; Nuclear Tests (New Zealand v. France), Judgment of 20 December 1974, (1974) ICJ
Reports, 457.
47Nuclear Tests (Australia v. France), Judgment of 20 December 1974, 258; Nuclear Tests
(New Zealand v. France), Judgment of 20 December 1974, 462.
48New Zealand, in its request for interim relief, sought to protect the rights of all members
of the international community, including New Zealand Nuclear Tests (New Zealand v.
France), request for interim relief, ICJ Pleadings Volume II, 49, paragraph. 2. Australia
in its application instituting proceedings, sought to protect the right of Australia and
its people, in common with other States and their peoples Nuclear Tests (Australia v.
France), application instituting proceedings, ICJ Pleadings Volume I, 14, paragraph 49.
49Nuclear Tests (Australia v. France), Order of 22 June 1973, (1973) ICJ Reports, 99, 103,
paragraph 22; Nuclear Tests (New Zealand v. France), Order of 22 June 1973, (1973) ICJ
Reports, 135, 139149, paragraph 23. See further: Constanze Schulte, Compliance with
Decisions of the International Court of Justice (Oxford: Oxford University Press, 2004),
296310, for general discussion of the cases.
536
natalie klein and tim stephens
Belgium v. Senegal
The most recent decision of the ICJ touching on rights of standing in a situation
similar to the Whaling in the Antarctic case was Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),50 which concerned whether
Senegal had fulfilled its obligations under the 1984 Convention Against Torture51
given its failure to prosecute Hissne Habr, the former President of the Republic
of Chad, or to extradite him to a jurisdiction where he would face criminal proceedings for torture. The Court concluded that the Convention Against Torture
established certain obligations erga omnes that any party could seek to enforce
against another, reasoning that [t]he common interest in compliance with
the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the
cessation of an alleged breach by another State party.52
Obligations erga omnes and Standing
Both the jurisprudence of the ICJ, as well as the work of the ILC, raise the possibility of considering obligations erga omnes in relation to duties that States owe
generally to the international community and how those particular duties may
be enforced in litigation. In its Articles on State Responsibility, the ILC specifically accounted for the existence of obligations owed to a group of States..., or
the international community as a whole.53 These include obligations erga omnes
partes under a multilateral treaty, or obligations erga omnes under a customary
law obligation.
In the Barcelona Traction case the Courts explained the nature of erga omnes
obligations:
In particular, an essential distinction should be drawn between the obligations of
a State towards the international community as a whole, and those arising vis--vis
another State in the field of diplomatic protection. By their very nature, the former
are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations
erga omnes.
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, and also from the principles and
rules concerning the basic rights of the human person, including protection from
50Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012.
51 Opened for signature 10 December 1984, entered into force 26 June 1987, 1465 UNTS 85.
52Ibid., paragraph 69.
53Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State
Responsibility), Report of the International Law Commission, 53rd Session, UN Doc
A/56/10 (2001), Article 42.
whaling in the antarctic
537
slavery and racial discrimination. Some of the corresponding rights of protection
have entered into the body of general international law (Reservations to the Convention on the prevention and Punishment of the Crime of genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 23); others are conferred by international instruments of a universal
or quasi-universal character.54
An initial consideration is what obligations are owed erga omnes? The ICJ has
recognised particular examples, such as the protection of certain human rights, as
well as rights conferred by treaties of a universal or quasi-universal character.55
The ILC refrained from cataloguing such obligations in its commentary to the
Articles on State Responsibility. Yet an example provided is the obligation aimed
at protection of the marine environment in the collective interest.56
Ragazzi has emphasized that the most relevant aspects for determining
whether obligations are owed erga omnes is whether they are owed to the international community as a whole, and are by their very nature the concern of all
States.57 There has been support for the view that some multilateral environmental treaties will meet the criteria.58 In relation to the Whaling in the Antarctic case,
obligations concerning the conservation and management of whales arguably fit
within this category. Support for such a view may be drawn from the preamble to
the ICRW, which refers to the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale
stocks.59
Even if multilateral obligations are found to be erga omnes in character, it
must still be established that an applicant State has standing to challenge the
adherence of any State to those obligations.60 There has been mixed support by
judges within the ICJ as to whether States have standing to institute proceedings in defence of general interests of the international community.61 Tams has
54Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970,
32, paragraphs 3334.
55Articles on State Responsibility, Article 48, Commentary, 127, paragraph 8.
56Ibid., Article 48, Commentary, 127, paragraph 10.
57Mauricio Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Clarendon Press, 1997), 102.
58Ian Brownlie, A Survey of International Customary Rules of Environmental Protection, Natural Resources Journal, 13 (1973): 180, 183; Eduardo Valencia-Ospina, The
International Court of Justice and International Environmental Law, Asian Yearbook
of International Law, 2 (1994): 1, 3. See further Ragazzi, The Concept of International
Obligations Erga Omnes, 157.
59ICRW, Preamble, First Recital.
60Tams, Enforcing Obligations Erga Omnes in International Law, 158.
61 See, for example, Barcelona Traction, Light and Power Company, Limited, Second Phase,
Separate Opinion of Judge Ammoun, 5 February 1970, (1970) ICJ Reports, 286; and East
Timor (Australia v. Portugal), Separate Opinion of Judge Weeramanty, 30 June 1995,
(1995) ICJ Reports, 139 and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
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natalie klein and tim stephens
s uggested that whether determined to have the character of erga omnes obligations, it does not necessarily follow that a State such interests may be enforced.
This will depend on a variety of factors, including the structure or source of the
obligation breached, the gravity of the infringement, or the number of States parties sharing a general interest.62
It further appears that even if a State has standing to defend erga omnes obligations, such a determination will not over-ride any challenge to jurisdiction that
might otherwise exist. This position is drawn from the decision of the Court in
East Timor, where the ICJ noted that even if the right in question is a right erga
omnes that could not change the application of the Monetary Gold rule.63 Hence,
the importance of establishing that invocations of State responsibility can only
be resolved for those States that have consented to the Courts exercise of jurisdiction. In the Whaling in the Antarctic case, it will be essential for the Court
to determine it has jurisdiction to resolve the dispute, irrespective of whether
Australia also has standing to seek protection of whales in Antarctic waters consistent with the requirements of the ICRW.
The ILC Articles on State Responsibility set out several ways in which erga
omnes or community obligations could be enforced. First, under Article 42(b) a
State is entitled as an injured State to invoke another States responsibility if the
obligation breached is owed to a group of States including the invoking State, or
the international community as a whole, and the breach either specially affects
a State, or is of such a character as radically to change the position of all the
other States to which the obligation is owed with respect to the further performance of the obligation.
For a State to be considered injured because it is specially affected by a breach,
the injury must distinguish it from the generality of other States to which the
obligation is owed.64 An example provided by the ILC is in relation to Article194
of LOSC, which sets forth a general requirement for the protection of the marine
environment. A State will be specially affected and hence injured if an act causing pollution particularly harms a States coastal fisheries or its beaches because
of that pollution.65
Preliminary Objections, Declaration of Judge Oda, 11 July 1996, (1996) ICJ Reports, 625.
Judge Ammoun in Barcelona Traction and Judge Weeramanty in East Timor support
such a stance, whereas Judge Oda denied such a right in the Genocide case. See Tams,
Enforcing Obligations Erga Omnes in International Law, 164, 186187.
62Tams, Enforcing Obligations Erga Omnes in International Law, 41.
63East Timor (Australia v. Portugal), Judgment of 30 June 1995, (1995) ICJ Reports, 90, 102.
See further Natalie Klein Multilateral Disputes and the Doctrine of Necessary Parties in
the East Timor Case, Yale Journal of International Law, 21 (1996): 305.
64Articles on State Responsibility, Article 42; Article 42 commentary, Report of the International Law Commission, 53rd Session, UN Doc A/56/10 (2001), 119, paragraph 12.
65Articles on State Responsibility, Article 42, Commentary, 119, paragraph 12.
whaling in the antarctic
539
In relation to an injury resulting from a breach where all States are affected, the
ILC refers to a treaty where each parties performance is effectively conditioned
upon and requires the performance of each of the others.66 This statement could
be applicable to treaties addressing the conservation and management of living
marine resources, as the only way to escape from the tragedy of the commons
scenario is for each party to have a vested interest in how the resources are managed. If one State is cheating on the requirements and over-harvesting a species,
then all other members of the regime are affected.
Nonetheless, the scope of this provision was not intended to be read broadly
and the Commentary continues:
a State is only considered injured under [this provision] if the breach is of such a
character as radically to affect the enjoyment of the rights or the performance of the
obligations of all the other States to which the obligation is owed.67
In the Whaling in the Antarctic case Japan could well question whether the
removal of a relatively small number of Antarctic minke whales radically affects
obligations imposed under the ICRW and its Schedule. Australia would need to
take the position that any taking of whales for commercial purposes, in clear violation of the zero-catch quota, does radically affect obligations given the absolute
character of a moratorium.
Even if Australia does not constitute an injured State as per Article 42, there is
still scope for it to invoke the responsibility of Japan by reference to Article 48(1)
of the ILC Articles on State Responsibility. Article 48 anticipates that a State may
still seek to invoke the responsibility of a State even if it is not an injured State.
Article 48(1) provides:
Any State other than an injured State is entitled to invoke the responsibility of
another State...if:
(a)the obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b)the obligation breached is owed to the international community as a whole.
Australia as an individual State is entitled to raise a claim on the basis of Article
48 in its own right, without requiring other States parties to the ICRW to bring a
similar action or intervene in the case (as discussed further below).68 The entitlement to invoke responsibility arises where an obligation is owed to a group of
States and that obligation transcend[s] the sphere of bilateral relations of the
66Ibid., Article 42, Commentary, 119, paragraph 13.
67Ibid., Article 42 Commentary, 119, paragraph 15 (emphasis added).
68Ibid., Article 48; Article 48 commentary; Report of the International Law Commission,
53rd Session, UN Doc A/56/10 (2001), 126, paragraph 4.
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natalie klein and tim stephens
States parties.69 Examples provided within the Commentary refer to the environment, or the security of a region or a regional human rights regime.70
States parties to the ICRW have a collective interest in ensuring that the decisions made for the conservation and management of whale species are adhered
to by all States parties for that regime to be effective. Any State party should be
entitled to assert an interest in accordance with Article 48 and have that interest
upheld in litigation. It could not be the intention that treaty rights and duties
would be established without any means of enforcing those rights, or that the
primary obligations are otherwise insulated from the secondary rules of State
responsibility. Without a connection between the invocation of responsibility
and standing before the Court, no State party to the ICRW would ever be able to
bring a claim before the ICJ.71
Litigating Disputes Concerning Activities in Areas beyond
National Jurisdiction
Protecting community interests through litigation by individual plaintiffs has
been a persistent challenge for both domestic and international law.
At common law, the tort of public nuisance provides litigants with some
capacity to seek a remedy for activities that cause an affront to a broad section of
the population, however nuisance has not been effectively used to address broad
scale environmental harms. Both private and public nuisance is poorly adapted
to dealing with the consequences of large-scale industrial activity, and has rarely
ventured beyond cases involving close geographical propinquity.72
Hence litigants have increasingly turned to public law remedies to pursue public interest environmental cases. In so doing they have sought judicial or merits
review of administrative decisions that have not appropriately or adequately considered environmental impacts, or in some cases where a statutory scheme exists,
to enforce environmental laws through civil proceedings. In both circumstances,
rules of standing have placed significant hurdles in the way of litigants pursuing
cases that are wholly concerned with the public interest. To take the Australian
example, historically courts did not recognise the standing of litigants seeking to
challenge administrative decisions unless they were more particularly or specially
69Articles on State Responsibility, Article 48, Commentary, 126127, paragraph 7.
70Ibid.
71 See Frans A. Nelissen and Steffen van der Velde, Australia Attempts to Harpoon Japanese Whaling Program, The Hague Justice Portal http://www.haguejusticeportal.net/
eCache/DEF/11/843.html, 4.
72Ross Abbs, Peter Cashman and Tim Stephens, Australia, in Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunne (eds), Climate Change Liability: Transnational Law and Practice (Cambridge: Cambridge University Press, 2012), 67, 98.
whaling in the antarctic
541
affected than other people, or would derive a benefit or an advantage over and
above that of the ordinary person.73
While a more flexible approach to standing has been taken in more recent
years, there is still no capacity to enforce the law or review a decision unless the
plaintiff has a demonstrated interest in doing so.74 This is often the case even
where there has been statutory reform to provide rights of open standing. Hence,
in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd,75 relating to the
same conduct that is the subject of the ICJ proceedings in Whaling in the Antarctic, the plaintiff was able to rely on section 475 of the EPBC Act only because it
was an environmental non-governmental organisation interested and engaged in
recent activities for the protection or conservation or research into the environment. The limitations of domestic law in pursuing public interest environmental
litigation have been thrown into sharp relief in the context of climate change,
which has led to very infrequent and limited successes for plaintiffs.76
On the international plane, the previous sections identified similar systemic
impediments to the pursuit of public interest environmental litigation. There is a
clear disjuncture between international laws recognition of the need to protect
common environmental interests, including the environment and resources of
areas beyond national jurisdiction, and the machinery for enforcing norms that
have been agreed to achieve this objective. As the late Shabtai Rosenne put it:
[i]n current...practice...there is a sharp dichotomy between the enunciation
of rules of law in erga omnes form, and the employment of procedural, and especially judicial, remedies for disputes.77 Moreover, even if remedies and dispute
settlement procedures were available to individual States for breaches of treaty
obligations erga omnes partes or customary obligations truly erga omnes, the
additional hurdle in the international context is the extreme reluctance on
the part of States to litigate. The Whaling in the Antarctic case is quite exceptional
in this regard and we have seen that there are only a select few such cases.
One response to this particular characteristic of international environmental
litigation, which is not at play to the same extent in domestic proceedings, has
been to advocate the establishment of bodies or procedures that are able to take
73High Court of Australia, Robinson v. Western Australian Museum (1977) 138 CLR 283.
74Abbs, Cashman and Stephens, Australia, 73.
75Federal Court of Australia, Humane Society International Inc v Kyodo Senpaku Kaisha
Ltd (2006) 154 FCR 425.
76For a review of decisions across a number of jurisdictions worldwide see Lord, Goldberg, Rajamani and Brunne (eds.), Climate Change Liability: Transnational Law and
Practice.
77Shabtai Rosenne, Some Reflections Erga Omnes in Antony Anghie and Garry Sturgess
(eds.), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (Leiden: Martinus Nijhoff Publishers, 1998), 509, 519.
542
natalie klein and tim stephens
proceedings in their own right. Elihu Lauterpacht argued thirty years ago in his
landmark work on international litigation that
the international community should certainly contemplate the day when the enforcement of obligations under, say, conventions for the prevention of aerial pollution,
or the protection of the ozone layer, will take the form of proceedings initiated before
the ICJ at the instance of the United Nations Environment Programme or some other
agency78
While the ICJ has not been opened to civil society litigants in the way Lauterpacht advocated, it is certainly the case that systems have been established allowing international bodies to instigate proceedings to protect environmental public
goods. This has avoided entirely the need to address issues of injury or damage
to individual States, and has the added advantage of being able to be utilised
without having to rely on States, which, for diplomatic reasons, may not wish to
pursue cases even where they enjoy standing to do so.
One example of this process is the establishment of non-compliance procedures. Compliance procedures have been established under a host of multilateral
environmental regimes, the earliest and best-known being the Montreal Protocol
on Substances that Deplete the Ozone Layer, 1987.79 Whereas traditional dispute
settlement relies on States to instigate a complaint, compliance procedures have
been driven by the governance institutions of the relevant regime themselves,
thus circumventing the main hurdle to international environmental litigation,
namely the reluctance of States to bring proceedings against other States.80
Although the Kyoto Protocol81 may be in the twilight of its existence, unless it is
extended through agreement on a second commitment period, its compliance
system has been operating quietly and effectively to ensure that parties meet
their obligations, among other things, to report their emissions and to establish national inventories of greenhouse gases and registries for carbon trading.
Breaches of these obligations would be difficult for other parties to litigate under
traditional systems of dispute settlement. This is because a complaining State
would most probably need to rely on Article 48 of the Articles on State Responsibility, discussed above, as they would constitute violations of erga omnes obligations
that do not necessarily have any demonstrable effect upon other States. However,
in the Kyoto Protocol compliance procedure, questions of implementation, as its
78Elihu Lauterpacht, Aspects of the Administration of International Justice (Cambridge:
Grotius, 1991).
79Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature
16 September 1987, entered into force 1 January1987, 1522 UNTS 29.
80David A. Wirth, Re-examining Decision-Making Processes in International Environmental Law, Iowa Law Review, 79 (1994): 769, 779.
81 Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened
for signature 11 December 1997, entered into force 16 February 2005, 2303 UNTS 148.
whaling in the antarctic
543
disputes are euphemistically labelled, have all been brought before the Enforcement Branch by independent expert review teams rather than States.82
An example of a supervisory body with capacity to institute proceedings directly
relevant to the question of enforcing international law relating to areas beyond
national jurisdiction is the International Seabed Authority (ISBA). The creation of
the ISBA was made necessary by the designation of the deep seabed, the Area,
as the common heritage of humankind, as there was a need for a global institution that could protect investors developing deep seabed resources by granting
them exclusive access to nominated sites. According to Article 157(1) of LOSC, it
is the ISBA through which States parties shall organize and control activities in
the Area, particularly with a view to administering the resources of the Area. The
powers and functions of the ISBA are those that are expressly conferred upon it
by LOSC as modified by the Agreement Relating to the Implementation of Part XI
of the United Nations Convention on the Law of the Sea of 10 December 198283 (1994
Agreement), and such incidental powers as are implicit in and necessary for their
exercise. Although the ISBA does not have plenary powers to protect the deep
seabed environment (it does not oversee dumping or marine scientific research
for instance) it does have the capacity to protect the deep seabed environment
when regulating mining activities in the Area.84
Most relevantly for our purposes, the ISBA is given standing before the Seabed
Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS).
The seven member Seabed Disputes Chamber has jurisdiction to decide disputes
concerning the provisions of LOSC relating to mining activities in the Area as
set out primarily in Part XI. Under Article 187 of LOSC, the ISBA may pursue
various proceedings including cases concerning acts or omissions...of a State
Party alleged to be in violation of [Part XI] or the Annexes relating thereto or
of the rules, regulations and procedures of the Authority adopted in accordance
therewith.85 As such, the ISBA has the capacity to enforce the provisions of LOSC
and the Mining Code that it is developing where a State party has caused damage to the marine environment in breach of obligations relating to the conduct
of mining activities in the Area.
This understanding was confirmed in the recent Advisory Opinion of the Seabed Disputes Chamber in Responsibilities and Obligations of States Sponsoring
82See further, Antonio Cardesa-Salzmann, Constitutionalising Secondary Rules in Global
Environmental Regimes: Non-Compliance Procedures and the Enforcement of Multilateral Environmental Agreements, Journal of Environmental Law, 23 (2011): 1.
83Agreement Relating to the Implementation of Part XI of the United Nations Convention on
the Law of the Sea of 10 December 1982, opened for signature 28 July 1994, entered into
force 28 July 1996, 1836 UNTS 42.
84Donald R Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart
Publishing, 2010), 136.
85LOSC, Article 187(b).
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Persons and Entities with Respect to Activities in the Area (Deep Seabed Advisory
Opinion).86 The Deep Seabed Advisory Opinion arose from a request from the
Council of the ISBA for an advisory opinion concerning the responsibilities and
obligations of States sponsoring persons and entities engaging in activities in the
Area. The Councils request was prompted by a request from Nauru and Tonga to
the Council for clarification of the nature and extent of liabilities of sponsoring
States. Both small island developing States, Nauru and Tonga were concerned
that, should they sponsor deep seabed mining resulting in environmental damage, they may face financial liabilities that they would be unable to meet. Early
in 2011, the Seabed Disputes Chamber gave its advisory opinion addressing the
three questions posed to it by the ISBA Council, namely:
1. What are the legal responsibilities and obligations of States Parties to LOSC
with respect to the sponsorship of activities in the Area in accordance with
LOSC, in particular Part XI, and the 1994 Agreement? What is the extent of
liability for any failure by a sponsored entity to comply with the requirements
of the regime?
2. What is the extent of liability of a State Party for any failure to comply with
the provisions of LOSC, in particular Part XI, and the 1994 Agreement, by an
entity it has sponsored under article 153(2)(b), of LOSC?
3. What are the necessary and appropriate measures that a sponsoring state must
take in order to fulfill its responsibility under LOSC, in particular article139
and Annex III, and the 1994 Agreement?
This is not the place to canvass the many significant elements of the opinion.
What is relevant for our purposes, however, is the Chambers specific comments
in response to question 2, as to what enforcement action might lie in the event of
damage to the marine environment beyond areas of national jurisdiction.
The Chamber noted that no provision of LOSC expressly entitled the ISBA to
make a claim for damage to the Area and its resources constituting the common
heritage of mankind, and damage to the marine environment.87 However, the
Chamber went on to conclude that:
86Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area, Advisory Opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, 1 February 2011, http://www.itlos.org/fileadmin/
itlos/documents/cases/case_no_17/adv_op_010211.pdf. For commentary see David Freestone, Responsibilities and Obligations of States Sponsoring Persons and Entities with
Respect to Activities in the Area, American Journal of International Law, 105 (2011): 755
and Donald Anton, Robert Makgill and Cymie Payne, Seabed MiningAdvisory Opinion on Responsibility and Liability, Environmental Policy and Law, 41/2 (2011): 60.
87Deep Seabed Advisory Opinion, paragraph 179.
whaling in the antarctic
545
It may, however, be argued that such entitlement is implicit in Article 137, paragraph2, of the Convention, which states that the Authority shall act on behalf of
mankind. Each State Party may also be entitled to claim compensation in light of the
erga omnes character of the obligations relating to the preservation of the environment of the high seas and in the Area. In support of this view, reference may be made
to Article 48 of the ILC Articles on State Responsibility...
There are several noteworthy aspects of this conclusion.
First, the Seabed Disputes Chamber has become the first international judicial body specifically to endorse Article 48 of the Articles on State Responsibility,
thus accepting in principle the existence of an actio popularis for certain public
goods.
Second, in terms of the category of plaintiff, the Chamber referred to the capacity of both the ISBA and parties to LOSC to have standing to take a case against
a sponsoring State. This finding, and the Advisory Opinion generally, greatly
strengthens the hand of the ISBA as a global regulatory body for protecting the
marine environment from damage resulting from deep seabed mining. French
has commented that:
[a]lthough the governance of the Area has rarely been understood by reference to
sustainable development, the role of the Authority in managing the natural resources
of the deep seabed to contribute to socio-economic development within environmental limits will undoubtedly be strengthened by this Advisory Opinion.88
Third, the Chamber accepted that an applicant would be able to seek damages
for pure environmental harm, that is to say damage to the marine environment
beyond national jurisdiction that has no impact upon any particular State.
The Seabed Disputes Chamber was probably overly cautious in stating that
no provision of LOSC explicitly gave the ISBA standing in respect of a breach of
Part XI. Nonetheless, the Deep Seabed Advisory Opinion suggests that not only
may proceedings be brought in order to obtain a finding of breach, but also that
this can be backed up by a real remedy. This seems to address a problem frequently cited in turning to the Articles on State Responsibility and international
courts to deal with damage to areas beyond national jurisdiction, which is that
even if there is standing under Article 48 by virtue of a breach of an erga omnes
obligation, States not directly affected by environmental harm would be permitted to seek only limited remedies such as cessation and satisfaction and pure
environmental harm having no direct impact on States would attract no obligation of restitution or compensation.89 If this were the case then any litigation
88Duncan French, From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean FloorThe Seabed Disputes Chambers 2011 Advisory Opinion, International Journal of Marine and Coastal Law, 26 (2011):
525, 535536.
89Tim Stephens, International Courts and Environmental Protection (Cambridge: Cambridge University Press, 2009), 68.
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could be no more than symbolic, as it would have the effect of imposing no real
sanction for wrongful acts.
Proposals for Reform
The foregoing discussion has highlighted ways in which international law has
been developed in recent decades to deal with environmental concerns of a community character, allowing States and international organisations the capacity to
litigate in respect of damaging activities in areas beyond national jurisdiction.
Notwithstanding the development of substantive law, in the form of general
instruments such as the Articles on State Responsibility, or LOSC in relation to
environmental damage caused by mining in the Area, it remains the case that
the practical machinery for public interest international environmental litigation
is incomplete and in need of significant reform. This is because neither relaxed
rules of standing for States nor broader definitions of remedies changes the reality that many international judicial forums, most notably the ICJ, are not able to
be seised of cases by those actors who are most free to act in the public interest,
namely individuals and non-governmental organisations.
Proposals for reform of the ICJ are practically as old as the Court itself, and
many of these have gone to the specific issue of dealing more appropriately with
environmental cases. For instance, in 1971, Judge Jessup argued that it would be
folly for environmental treaties to allow disputes to be settled by the ICJ without
reforming the Court so that non-State entities could appear which will be as
much concerned with enforcement of the new standards as will governments of
states.90 While the ICJ has sought to make itself more attractive as a forum for
international environmental litigation, it is not able to address this foundational
limitation expressed in Article 34 of the Courts Statute. The Courts dedicated
Environmental Chamber of the Court, established in 1993, can, like the Court in
plenary, only admit States as parties in contentious cases. Moreover, the Chamber has never been used, and because of this, the Court decided in 2006 to cease
holding elections for the Bench of the Chamber.
If contentious litigation remains difficult to pursue for underlying structural
reasons concerning the constitution and personal jurisdiction of international
courts, then attention may legitimately turn to other ways in which cases concerning areas beyond national jurisdiction can be pursued. In this regard, advisory opinions such as the Deep Seabed Advisory Opinion offer significant promise,
as the bodies able to activate advisory cases are in many situations substantially
independent of State control. In this regard, Rosenne has noted that [t]he
advisory competence of the International Court supplies a true erga omnes
90Philip C. Jessup, Do New Problems Need New Courts? Proceedings of the American
Society of International Law, 65 (1971): 261, 265.
whaling in the antarctic
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procedure.91 Not only is the proceeding open to competent agencies of the
United Nations, but potentially other international organisations may be able to
make submissions. Although the ICJ has not welcomed such submissions, they
are at least accepted as a possibility under. Practice Direction XII, adopted by the
Court in 2004. Practice Direction XII provides:
1. Where an international non-governmental organization submits a written
statement and/or document in an advisory opinion case on its own initiative,
such statement and/or document is not to be considered as part of the case
file.
2. Such statements and/or documents shall be treated as publications readily
available and may accordingly be referred to by States and intergovernmental
organizations presenting written and oral statements in the case in the same
manner as publications in the public domain.
3. Written statements and/or documents submitted by international nongovernmental organizations will be placed in a designated location in the
Peace Palace. All States as well as intergovernmental organizations presenting
written or oral statements under Article 66 of the Statute will be informed
as to the location where statements and/or documents submitted by international non-governmental organizations may be consulted.
Conclusion
The Whaling in the Antarctic case directly raises before the ICJ fundamental questions concerning the capacity of international law to protect the marine environment beyond national jurisdiction and the organisms and ecosystems it supports.
It represents the first opportunity for the ICJ to engage directly in an analysis
of the erga omnes nature of obligations under multilateral environmental treaties. The litigation also raises the connected question whether any and all States
owed such obligations possess an entitlement to complain of their breach. Given
the unanimous decision in the Deep Seabed Advisory Opinion and its ruling in
Belgium v. Senegal, the ICJ will not be forging entirely new ground were it to
accept that the ICRW, CITES and the CBD establish obligations erga omnes, and
that they are susceptible to enforcement by any State party. However it needs to
be recognised that the Deep Seabed Advisory Opinion was reached in relation to a
more stringent legal framework for the protection of the marine environment
than any of these more generic regimes. Part XI of LOSC also clearly contemplates
that the ISBA or a State party will be able to turn to the dispute settlement system
91Rosenne, Some Reflections Erga Omnes, 522.
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natalie klein and tim stephens
of LOSC if seabed mining activities damage the marine environment, regardless of
whether this affects any particular State.
In light of the importance of standing issues it appears remarkable that Australia did not seek to address them in its application in the Whaling in the Antarctic
case. The closest that the application comes to doing so is in paragraph three
in which it is stated that Australia has consistently opposed Japans JARPA II
program, both through individual protests and demarches and through relevant
international forums, including the International Whaling Commission. The
application goes on to set out the factual background to the case, and the five
obligations that Japan is alleged to have breached under international law. All of
those obligations arise under multilateral treaties and apply to all parties to them
rather than to Australia in particular, and the breaches are set out in general
terms rather than in relation to any injury to Australia. Australias Memorial and
Japans Counter-Memorial presumably consider these matters directly, as they go
to determining the admissibility of Australias claim. How both States navigate
these issues in their written and oral pleadings will be of great interest. Australia
will be able to point to the increasingly settled notion of obligations erga omnes
and the concomitant capacity to enforce such obligations as recognised by the
ILC, and now by both the ICJ and the Seabed Disputes Chamber of ITLOS. Japan
will be hard-pressed to deny these trends in international law as de lege ferenda,
as to do so would have broader implications for the enforcement of community
obligations generally. The Court will itself have to reach a view on these issues, a
view that will have importance not only for the conservation and management of
whales, but of vital relevance to the practical operation of the tremendous body
of international law applying to areas beyond national jurisdiction.
chapter Twenty-four
Marine Protected Areas in Antarctic Waters:
A Review of Policy Options in the Context of
International Law
Ben Milligan*
Introduction1
The Antarctic convergence (also referred to as the Antarctic polar front) is the
natural boundary zone where Antarctic surface waters moving northward sink
below sub-Antarctic waters.2 The Antarctic convergence encloses a large marine
ecosystem3 (Antarctic LME) that has several noteworthy characteristics. Species
present in the ecosystem are highly adapted to extreme environmental conditions
*Ben Milligan is a Postdoctoral Research Associate at the Centre for Law and Environment, University College London. He was formerly a Researcher and PhD candidate at
the Australian National Centre for Ocean Resources and Security, University of Wollongong, and has held Visiting positions at the British Institute of International and
Comparative Law, George Washington University and University of Cambridge.
1The author has received funding from the Australian Research Councils Discovery
Projects scheme (project number DP0666273) and was a Visiting Fellow at the British
Institute of International and Comparative Law (BIICL) between AprilNovember 2011.
The support of BIICL and feedback provided by Dorothee Herr (Global Marine and Polar
Program, IUCN) is gratefully acknowledged. This paper contains material adapted from
the authors contribution to a previous work: Gregory Rose and Ben Milligan, Law for the
Management of Antarctic Marine Living Resources: From Normative Conflicts towards
Integrated Governance, Yearbook of International Environmental Law, 20 (2009): 41.
2Keith Moore, Mark Abbott, and James Richman, Location and Dynamics of the Antarctic Polar Front from Satellite Sea Surface Temperature Data, Journal of Geophysical
Research, 104 (1999): 3,059.
3Large marine ecosystems are areas of ocean that are characterised by distinct bathymetry, hydrography, productivity and trophic interaction. See, Lewis M. Alexander, Large
Marine Ecosystems: A New Focus for Marine Resources Management, Marine Policy,
17 (1993): 186; Kenneth Sherman and Gotthilf Hempel (eds.), The UNEP Large Marine
Ecosystem Report: A Perspective on Changing Conditions in LMEs of the Worlds Regional
Seas (Nairobi: UNEP, 2008); Timothy M. Hennessey and Jon G. Sutinen (eds.), Sustaining
Large Marine Ecosystems: The Human Dimension (San Diego: Elsevier Science, 2005).
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and many are unique to the region.4 Recent scientific studies have also identified that Antarctic waters contain the areas of the worlds oceans that are least
impacted by human activity.5
Despite the relatively low level of human activity throughout Antarctic
waters, direct and indirect anthropogenic interactions with the Antarctic LME
have placed the ecosystem under significant stress.6 A key ecosystem stressor is
the commercial harvesting of krill, patagonian toothfish and antarctic toothfish.
Other key stressors to the Antarctic LME include an increasing level of vessel
traffic in Antarctic waters, in addition to climate changewhich contributes to
acidification of Antarctic waters and also to species displacement.
Increasing awareness of the value and vulnerability of the Antarctic LME has
catalysed efforts by various stakeholders to establish marine protected areas
(MPAs) in Antarctic waters. In recent years States Parties to the Antarctic Treaty
System (ATS)7 have engaged in ongoing discussions concerning the potential for
MPAs to enhance conservation and management of the Antarctic LME. Component bodies of the ATSincluding the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Antarctic Treaty Consultative
Meeting (ATCM)have acknowledged the potential for a network of multiple
MPAs to further the management objectives set out ATS instruments. These bodies have also achieved significant progress toward establishing an MPA network
in Antarctic waters.
Taking into account recent developments within the ATCM and CCAMLR,
the present chapter will review several policy options for establishing additional
MPAs in Antarctic waters and identify how international legal frameworks both
constrain and enable their implementation. The chapter will first focus on the
concept of a marine protected area and canvas a range of policy options for
designating MPAs in Antarctic waters. Discussion then turns to the identification
4See, for example, Marie Christine Aquarone and Sara Adams, Antarctic LME in Sherman and Hempel (eds.), The UNEP Large Marine Ecosystem Report, 765.
5See, for example, Benjamin S. Halpern, Shaun Walbridge, Kimberly A. Selkoe, et al.,
A Global Map of Human Impact on Marine Ecosystems, Science, 319 (2008): 948.
6Richard B. Aronson, Sven Thatje, James B. McClintock, et al., Anthropogenic impacts
on marine ecosystems in Antarctica, Annals of the New York Academy of Sciences, 1223
(2011): 82.
7The ATS consists of the: Antarctic Treaty, opened for signature 1 December 1959,
entered into force 23 June 1961, 402 UNTS 71; Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972, entered into force 11 March 1978, 1080
UNTS 175 (CAS Convention); Convention for the Conservation of Antarctic Living Marine
Resources, opened for signature 20 May 1980, entered into force 7 April 1982, 1329 UNTS
47 (CAMLR Convention); Protocol on Environmental Protection to the Antarctic Treaty,
opened for signature 4 October 1991, entered into force 14 January 1998, 30 (1991) ILM
1461 (Madrid Protocol).
marine protected areas in antarctic waters
551
of specific legal provisions enabling the designation of MPAs in Antarctic waters
and provides an overview of how these provisions have been utilised to date.
Key functional and jurisdictional limitations of each provision that constrain the
implementation of certain MPA policy options are also assessed. These limitations arise because waters south of the Antarctic convergence are managed in
accordance with a variety of overlapping or conflicting legal frameworks that
have developed in a fragmented manner in response to specific political pressures and functional management concerns. The chapter concludes by making
recommendations to address the identified limitations of the international legal
framework.
Policy Options for Designating MPAs in Antarctic Waters
The term marine protected area (MPA) has been used to refer to a wide variety of spatial management measures applied by national governments and international organisations.8 At an international level, the term is defined in several
instruments and policy documents. Revised guidelines published in 2008 by the
International Union for Conservation of Nature (IUCN Guidelines)9 establish a
framework for classifying protected areas that has achieved widespread international recognition and implementation in national legislation.10 In these guidelines, a protected area is defined generally as:
8See, Jon Day, Marine Protected Areas, in Michael Lockwood, Graeme Worboys, Ashish
Kothari (eds.), Managing Protected Areas: a global guide (London: Earthscan, 2006).
9Nigel Dudley (ed.), Guidelines for Applying Protected Area Management Categories
(Gland: IUCN, 2008), http://data.iucn.org/dbtw-wpd/edocs/PAPS-016.pdf (IUCN Guidelines). See also, IUCN, Guidelines for Protected Area Management Categories (Gland:
IUCN, 1994), http://data.iucn.org/dbtw-wpd/edocs/1994-007-En.pdf. Subsequent references to the IUCN Guidelines are to the 2008 edition.
10For an example of implementation of the Protected Area Management Categories in
national legislation, see Environment Protection and Biodiversity Conservation Act, 1999
(Cth, Australia), which empowers the Governor General to designate a Commonwealth
Reserve, which must be assigned to, and have characteristics consistent with, a particular IUCN Protected Area Management Category (see sections 343348). The IUCN
Protected Area Management Categories are used to populate the UN List of Protected
Areas (http://www.unep-wcmc.org/un-list-of-protected-areas_269.html) and the World
Database on Protected Areas maintained by the United Nations Environment Program
World Conservation and Monitoring Centre (in collaboration with the IUCN). They
have also been recognised and utilised under the framework of the Convention on Biological Diversity: See, for example, COP 7 Decision VII/28, http://www.cbd.int/decision/
cop/?id=7765.
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a clearly defined geographical space, recognised, dedicated and managed, through
legal or other effective means, to achieve the long-term conservation of nature with
associated ecosystem services and cultural values.11
The emphasis placed in this definition on the objective of long-term or lasting
conservation is absent from an alternative definition set out in the Convention on
Biological Diversity (CBD).12 CBD Article 8(a) obliges each Contracting Party to
establish, as far as possible and as appropriate, a system of protected areas or
areas where special measures need to be taken to conserve biological diversity.
The concept of a protected area is defined in CBD Article 2 to mean a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives. This provision is complemented by the following
definition of the term marine and coastal protected area that was developed by
an Ad Hoc Technical Expert Group at the 7th Meeting of the Conference of the
Parties (COP) to the CBD:
Marine and coastal protected area means any defined area within or adjacent to
the marine environment, together with its overlying waters and associated flora,
fauna and historical and cultural features, which has been reserved by legislation
or other effective means, including custom, with the effect that its marine and/or
coastal biodiversity enjoys a higher level of protection that is surroundings.13
The broad definitions mentioned above are essentially umbrella references to a
wide variety of measures that restrict human activity within a defined marine
space. Accordingly, there are a wide variety of potential restrictive measures in
Antarctic waters that could be un-controversially characterised as some form of
MPA. Temporary or transient restrictive measures would however be inconsistent with the objective of long-term conservation referred to in the IUCN Guidelines definition.14
Different policy options for designating MPAs in Antarctic waters can be distinguished from one another by reference to several key characteristics, including: the management objectives of the relevant MPA; the degree to which human
activities are restricted within the protected area; the spatial configuration of the
protected area; and the procedures and selection criteria informing the designation of an MPA in a particular location. The IUCN Guidelines identify six categories of protected areas, which are distinguished from one another by reference
11IUCN Guidelines, 810. Note that this definition applies in both marine and terrestrial
contexts, and replaces a previous IUCN definition of marine protected area published
in 1999: Dudley, Protected Area Management Categories, 56.
12Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993, 1760 UNTS 79.
13See, CBD COP 7, Decision VII/5, http://www.cbd.int/decision/cop/?id=7742, which also
contains a detailed definition of the marine environment.
14For discussion of other restrictive measures deemed by the IUCN to be inconsistent
with its MPA definition, see IUCN Guidelines 2008, 712.
marine protected areas in antarctic waters
553
to area management objectives and the degree to which human activities are
restricted. The categories were originally and primarily developed for use in a
terrestrial context.15 Their potential application to Antarctic waters can be summarised as follows:
Category IaStrict Nature Reserve
MPAs falling under this category are strictly protected areas set aside to protect biodiversity and also possibly geological/geomorphological features, where
human visitation, use and impacts are strictly controlled and limited to ensure
protection of the conservation values.16 An important potential function of
such areas is to serve as reference areas for scientific research and monitoring.17
A Strict nature reserve in Antarctic waters would prevent, other than for strictly
limited scientific purposes, any removal of marine species or other exploitation
of marine resources.18 It would also be highly restrictive of all aspects of human
activity within the area covered by the MPA.19
Category IbWilderness Area
MPAs falling under this category are usually large unmodified or slightly modified areas, retaining their natural character and influence, without permanent or
significant human habitation, which are protected and managed so as to preserve
their natural condition.20 A Wilderness area in Antarctic waters would prevent
the removal of marine species or other exploitation of marine resources, other
than for limited scientific purposes.21 However in contrast to Category Ia Strict
nature reserves, such areas would be permissive of limited self-supported lowimpact tourism and other human visitation.22 This might include tourist visitation in small vessels that operate from larger cruise ships that do not enter the
relevant MPA. Human interactions with the marine environment would still be
controlled, absent the strict prohibitions present in Category Ia reserves.23
15The IUCN has published guidelines for applying its protected area management categories to MPAs (IUCN MPA Guidelines). See, https://cmsdata.iucn.org/downloads/
iucn_categoriesmpa_eng.pdf.
16IUCN Guidelines, 13.
17Ibid.
18IUCN MPA Guidelines, 1920.
19 IUCN Guidelines, 1314.
20Ibid.
21IUCN MPA Guidelines, 19. They would however be permissive of sustainable resource
use by indigenous inhabitants, although this characteristic is obviously not relevant to
Antarctic waters: ibid.
22IUCN Guidelines, 1415; IUCN MPA Guidelines, 2021.
23IUCN Guidelines, 1415.
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Category IINational Park
MPAs falling under this category are large natural or near natural areas set aside
to protected large-scale ecological processes, along with the complement of species and ecosystems characteristic of the area, which also provide a foundation
for environmental and culturally compatible spiritual, scientific, educations, recreational and visitor opportunities.24 A National park in Antarctic waters would
prevent the removal of marine species or other exploitation of marine resources,
other than for scientific purposes.25 A key characteristic distinguishing National
parks from Category 1b Wilderness areas is that the former allows for higher levels of human visitation than the latter and permits the establishment of associated supportive infrastructure.26 In an Antarctic waters context, the operation
of large cruise ships and other similarly sized vessels would appear to be more
consistent with the objectives of Category II National parks than the other formerly mentioned categories.
Category IIINatural Monument or Feature
MPAs falling under this category are managed in a similar fashion to Category II
National parks. However, rather than establishing restrictive measures on a large
spatial scale they are set aside to protect a specific natural monument such as
seamounts, submarine caverns, or other geological or living marine features.27 In
an Antarctic waters context Category III MPAs could provide localised protection to biodiversity aggregation sites that have important conservation value, key
aggregation sites for certain iconic species, or other marine features deemed to
possess cultural or recreational value.28
Category IVHabitat/Species Management Area
MPAs falling under this category aim to protect particular species or habitats.29
They are managed in accordance with this priority and are not necessarily
intended to enclose a self-sustaining ecosystem.30 Within Category IV MPAs
human interventions to ensure the survival of specific habitats or species may be
permitted. Activities that do not impact upon a particular species or habitat may
not be restricted.31 A Category IV MPA in Antarctic waters would permit a range
24Ibid., 1617.
25Ibid.; IUCN MPA Guidelines, 2121.
26IUCN MPA Guidelines, 2021.
27IUCN Guidelines, 1719.
28IUCN MPA Guidelines, 21.
29IUCN Guidelines, 2122.
30Ibid.; IUCN MPA Guidelines, 2122.
31IUCN MPA Guidelines, 2122.
marine protected areas in antarctic waters
555
of human activity, including commercial fishing, to take place in accordance with
specific restrictions, which might include: prohibited extractive use of particular
marine species; prohibited waste discharge from vessels, or seasonal restrictions
and defined intensities for marine living resources (MLR) exploitation.
Category VProtected Seascape32
MPAs falling under this category consist of a protected area where the inter
action of people and nature over time has produced an area of distinct character with significant ecological, biological, cultural and scenic value: and where
safeguarding the integrity of this interaction is vital to protecting and sustaining
the area and its associated nature conservation and other values. In contrast to
Category IV MPAs, the principal aim of Category V MPAs is protect an overall
seascape as opposed to specific habitats or species. The emphasis placed on a
long-term interaction of people and nature over time assumes some degree of
proximate human habitation.33 Given the absence of such habitation in Antarctic
waters (apart from temporarily resident scientific personnel), the scope for application of a Category V MPAs in Antarctic waters would appear to be limited.
Category VIProtected Area with Sustainable Use of Natural Resources
MPAs falling under this category conserve ecosystems and habitats, together
with associated cultural values and traditional natural resource management
systems.34 In contrast to the previously mentioned categories, the primary objective of Category VI MPAs incorporates both the protection of natural ecosystems
and the sustainable use of natural resources, to the extent that these activities
are mutually beneficial.35 The emphasis placed on traditional natural resource
management is problematic in an Antarctic waters context given the absence of
proximate human habitation and associated localised small-scale use of marine
resources. For example, fishing activities in Antarctic waters are undertaken
using industrial-scale vessels that are equipped to navigate very large distances
from their home ports. Antarctic MPAs in which sustainable resource use was
permitted would be more appropriately categorised under Category IV.
32In a terrestrial context, a Category V protected area is referred to as a Protected Landscape: IUCN Guidelines, 20.
33The IUCN MPA Guidelines, 22, note that Category V MPAs might most typically be
expected to occur in coastal areas and generally involve living within and sustainably
using the seascape.
34IUCN Guidelines, 22.
35IUCN MPA Guidelines, 23.
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Spatial Configuration
In addition to the widely recognised IUCN Categories discussed above, MPA
policy options for Antarctic waters can be distinguished from each other by reference to their vertical and horizontal limits within a three-dimensional marine
environment. The vertical limits of an MPA may be designed to provide protection for the seabed, the superjacent water column, or both.36 MPAs may also
contain one or more sub-zones in which contrasting restrictive measures are
applied.37 Many MPAs around the world contain subzones defined by horizontal
limits. For example, the Australian Government has established the Macquarie
Island Commonwealth Marine Reserve, which is a large MPA consisting of three
subzones:38 Within a Northern and Southern Species/Habitat Protection Zone
restrictive measures correspond to IUCN Category IV. Within a central Highly
Protected Zone, restrictive measures correspond to IUCN Category Ia. Several
MPAs also contain subzones defined by vertical limits. For example, the Australian Government has established the Huon Commonwealth Marine Reserve
which consists of a large IUCN Category VI Multiple Use Zone and a small IUCN
Category Ia Benthic Sanctuary.39 The Benthic Sanctuary is designed to protect
several seamounts and prohibits the deployment of certain fishing methods
below a depth of 500 metres below sea level.40
Procedures and Selection Criteria for Designation
MPA policy options can also be distinguished from each other by reference to
the procedures and selection criteria that are used to inform the designation of
MPAs in particular location(s).41 MPA sites can be selected on an ad hoc basis
in response to specific environmental or management concerns, or in accordance with an overarching management framework applied to particular marine
locations, environments or ecosystems. Management frameworks may provide
for the selection of multiple MPA sites in order to establish a network of MPAs
designed to meet overarching policy objectives.42 There are a large number of
36See, IUCN Guidelines, 56 and IUCN MPA Guidelines, 30.
37See, IUCN Guidelines, 5657 and IUCN MPA Guidelines, 2426.
38See, http://www.environment.gov.au/coasts/mpa/southeast/macquarie/management
.html. See also, Australian Government, Macquarie Island Marine Park Management
Plan 20012008, http://www.environment.gov.au/coasts/mpa/publications/pubs/mac
quarie-plan.pdf.
39See, http://www.environment.gov.au/coasts/mpa/southeast/huon/index.html.
40See, http://www.environment.gov.au/coasts/mpa/southeast/huon/management.html.
41 For discussion focusing on several different selection criteria see Peter Jones, Marine
protected area strategies: issues, divergences and the search for middle ground, Reviews
in Fish Biology and Fisheries, 11 (2002): 197.
42A key policy objective of an MPA network is to establish ecologically coherent protective measures that take into account factors such as the location of specific species,
seasonal migratory patterns, and more generally the need to protect geographically
marine protected areas in antarctic waters
557
inter-governmental policy documents that set out detailed procedures and selection criteria for the designation of MPAs or component parts of an MPA network.
For example: CBD COP 9 Decision IX/2043 contains criteria and guidance for
identifying ecologically or biologically significant marine areas in need of protection in open ocean waters and deep-sea habitats.44 The CBD Secretariat has also
published technical advice on the establishment and management of a national
system of marine and coastal protected areas.45 The following three criteria are
commonly cited as necessary conditions for selecting components of an MPA
network:46
1. ComprehensivenessDo components of the MPA network collectively include
the full range of ecosystems present in the relevant bioregion?
2.AdequacyAre components of the MPA network large enough to maintain
the ecological viability and integrity of populations, species and communities
in the relevant bioregion?
3.RepresentativenessIs the number of MPAs sufficient to reflect the biotic
diversity of marine ecosystems in the relevant bioregion?
Legal Provisions for Establishing MPAs in Antarctic Waters
Waters located south of the Antarctic convergence are managed in accordance
with a variety of international legal instruments that have developed in a fragmented manner in response to specific political pressures and functional management concerns. Several of these instruments contain provisions enabling the
designation in Antarctic waters of different types of MPAs. The relevant provisions are: United Nations Convention on the Law of the Sea, Parts II, V and VI
(LOSC);47 CAMLR Convention, Article IX; Madrid Protocol, Annex V, Articles 3
disparate, but ecologically connected habitats and ecosystems. For further discussion
see Day, Marine Protected Areas.
43See, http://www.cbd.int/decision/cop/?id=11663.
44Note also COP 10 Decision X/31, http://www.cbd.int/decision/cop/?id=12297; and COP
7 Decision VII/5, http://www.cbd.int/decision/cop/?id=7742.
45CBD Technical Series No. 13 (2004), http://www.cbd.int/doc/publications/cbd-ts-13.pdf.
46CCAMLR, Report of the CCAMLR Workshop on Marine Protected Areas, Silver Spring,
USA 29 August1 September 2005, http://www.ccamlr.org/pu/e/e_pubs/sr/05/a7.pdf.
See also, Department of Conservation and Ministry of Fisheries (New Zealand), Marine
Protected Areas, Policy and Implementation Plan (2005), http://www.biodiversity.govt
.nz/pdfs/seas/MPA-Policy-and-Implementation-Plan.pdf; CBD COP 7 Decision VII/5,
http://www.cbd.int/decision/cop/?id=7742; Natural Resource Management Ministerial
Council (Australia), Australias Biodiversity Conservation Strategy 20102030 (2010),
http://www.environment.gov.au/biodiversity/publications/strategy-2010-30/pubs/
biodiversity-strategy-2010.pdf.
47United Nations Convention on the Law of the Sea (LOSC), opened for signature 10 December 1982, entered into force 16 November 1994, 1833 UNTS 397.
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and 4; International Convention for the Regulation of Whaling, Articles IV and
V (ICRW);48 International Convention for the Prevention of Pollution from Ships,
Annexes I, II and V (MARPOL);49 and International Convention for the Safety of
Life at Sea, Chapter V (SOLAS).50 The following paragraphs provide an overview
of these provisions and how they have been utilised to date to establish MPAs
in Antarctic waters. They also identify key functional and jurisdictional limitations of each provision that constrain the implementation of certain MPA policy
options.
Parts II, V and VI of the LOSC
The LOSC establishes, inter alia, basic rules concerning the exercise of flag and
coastal State jurisdiction at sea. It recognises the entitlement of coastal States
to claim maritime zones of national jurisdiction appurtenant to territories over
which they have sovereignty. The nature and scope of national jurisdiction recognised by the LOSC is discussed extensively in other literature and will not be
addressed in detail here.51 For the present purposes it is relevant to note the following: LOSC Part II recognises the sovereignty of a coastal State over a territorial
sea extending up to 12 nautical miles from baselines designated in accordance
with the Convention.52 Further seaward, LOSC Part V recognises sovereign rights
over an exclusive economic zone (EEZ) extending up to 200 nautical miles from
territorial sea baselines designated by the relevant coastal State.53 Sovereign
rights are also conferred in relation to natural resources of the continental shelf,54
48International Convention for the Regulation of Whaling (ICRW), opened for signature
2 December 1946, entered into force 10 November 1948, 161 UNTS 72.
49International Convention for the Prevention of Pollution from Ships (MARPOL), opened
for signature 2 November 1973 (not yet in force), 12 (1973) ILM 1319, as amended by
Protocol Relating to the Convention for the Prevention of Pollution from Ships, opened
for signature 17 February 1978, entered into force 2 October 1983, 17 (1978) ILM 246,
reprinted in International Maritime Organization, MARPOL 73/78 Consolidated Edition
(London: IMO, 2006).
50International Convention for the Safety of Life at Sea (SOLAS), opened for signature
1 November 1974, entered into force 25 May 1980, 1184 UNTS 2. For further information see the IMO website, http://www.imo.org/About/Conventions/ListOfConventions/
Pages/Default.aspx.
51 See generally, Robin Churchill and Vaughan Lowe, The Law of the Sea, 3rd edition
(Manchester: Manchester University Press, 1999) and Donald Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart, 2010).
52See, LOSC, Part II, particularly LOSC, Articles 27 and 28 regarding jurisdiction in relation to foreign ships in the territorial sea. For discussion of the Conventions rules concerning baselines, see Rothwell and Stephens, International Law of the Sea, 3357.
53See, LOSC, Part V, particularly Articles 5557 and Article 73.
54See, LOSC, Part VI, particularly Article 77. See also, Churchill and Lowe, Law of the Sea,
151157.
marine protected areas in antarctic waters
559
which may extend 200 nautical miles or further from territorial sea baselines in
accordance with detailed requirements set out in LOSC Part VI and Annex II.55
Subject to the various detailed requirements set out in LOSC Parts II, V and
VI, a coastal State is entitled to establish MPAs within its territorial sea, EEZ
or continental shelf and enforce restrictive measures within such areas against
foreign vessels and nationals. Coastal State jurisdiction to establish and enforce
MPAs is limited, inter alia, by various navigational freedoms afforded to foreign
vessels that constrain, to an uncertain extent, the implementation of certain
MPA policy options.56 Two key relevant navigational freedoms afforded to foreign vessels are the right of innocent passage within the territorial sea;57 and
the broad freedom of navigation afforded to vessels in the EEZ.58 In practice,
these navigational freedoms act as a disincentive for coastal States to establish
highly restrictive MPAs (for example, measures consistent with IUCN Categories
Ia and Ib), although the basic position set out in the LOSC has been progressively
modified by various supplemental international agreements that provide greater
scope for regulating the navigation of foreign vessels within certain types of MPA
(see below).59 Given the broad freedoms attributed to vessels navigating on the
high seas,60 the establishment of high seas MPAs relies on the presence of an
international agreement to exercise flag State jurisdiction in a certain manner.61
Several States assert claims to zones of coastal State jurisdiction in Antarctic waters and have established MPAs within these zones in accordance with
their respective national laws.62 Antarctic waters located north of 60S Latitude
55See in particular, LOSC, Article 76. See also, Churchill and Lowe, Law of the Sea, 145150.
56For further discussion see, Fabio Spadi, Navigation in Marine Protected Areas: National
and International Law, Ocean Development and International Law, 31 (2000): 285.
57LOSC, Article 17, for further information see Rothwell and Stephens, International Law
of the Sea, 215218.
58See generally ibid. 224229. Note also the right of transit passage through straits used
for international navigation (see LOSC, Part III).
59Supplemental agreements applicable to an Antarctic context are discussed in further
detail below. Note also that several coastal States deploy ship routing measures as a
means to prevent vessel traffic located within their maritime zones. See, Fabio Spadi,
Navigation in Marine Protected Areas.
60See LOSC, Part VII.
61 For further discussion see Tullio Scovazzi, Marine Protected Areas on the High Seas:
Some Legal and Policy Considerations, The International Journal of Marine and Coastal
Law, 19 (2004): 1; CBD Secretariat, The international legal regime of the high seas
and the seabed beyond the limits of national jurisdiction and options for cooperation
for the establishment of marine protected areas in marine areas beyond the limits of
national jurisdiction, CBD Technical Series No. 19 (November 2005), http://www.cbd
.int/doc/publications/cbd-ts-19.pdf; and Robin Warner, Protecting the Oceans Beyond
National Jurisdiction: Strengthening the International Law Framework (Leiden: Martinus
Nijhoff, 2009).
62Relevant MPAs include: the Southern Ocean Whale Sanctuary, and Heard Island
and McDonald Islands Marine Reserve proclaimed by the Australian Government in
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contain high seas areas, in addition to territorial sea, EEZ and continental shelf
claims that are not protested by third States. The aforementioned claims are projected from various Sub-Antarctic islands63 and contain several large, nationallydesignated MPAs.64
Antarctic waters located south of 60S Latitude (that is, waters within the spatial jurisdiction of the Antarctic Treaty) consist of high seas areas, in addition to
areas in which the following claims have been asserted by States claiming territorial sovereignty over parts of the Antarctic continent and adjacent islands:65
Argentina, Australia, Chile, and France have claimed both a territorial sea and an
EEZ/fisheries zone adjacent to their respective territorial claims.66 New Zealand,
Norway, and the United Kingdom have declared a territorial sea but not an EEZ/
fisheries zone adjacent to their respective territorial claims.67
The maritime claims (and associated MPA designations) to waters located
south of 60S Latitude have a tenuous position in international law, for two principal reasons: First, the Antarctic territorial claims on which they depend are
not recognised widely and have been actively protected by several States with
an active presence in the region. The United States, for example, has refused to
recognise any claims at all to the Antarctic continent.68 Secondly, the assertion
of coastal State jurisdiction against foreign nationals in these waters potentially
accordance with the Environmental Protection and Biodiversity Conservation Act 1999
(Cth); and the Prince Edward Islands Macquarie Island Commonwealth Marine Reserve
designated by the Government of South Africa.
63For a list of the relevant islands and corresponding claimants see Rose and Milligan,
Law for the Management of Antarctic Marine Living Resources.
64See, Susie Grant and Phil Trathan, Martine Protected Areas in the Southern Ocean:
update on current status of designated areas, paper presented at the CCAMLR MPA
Workshop, Brest, France, 29 August to 2 September, 2011.
65For detailed information regarding relevant territorial claims see, Donald Rothwell,
The Polar Regions and the Development of International Law (Cambridge: University
of Cambridge Press, 1996), 548; and, Christopher Joyner, Antarctica and the Law of
the Sea: Rethinking the Current Legal Dilemmas, San Diego Law Review, 18 (19801):
415. A significant portion of the Antarctic continentbetween longitudes 90W and
150Wremains unclaimed.
66See, Rose and Milligan, Law for the Management of Antarctic Marine Living
Resources.
67For further discussion see ibid. Note also that several States have presented submissions to the Commission on the Limits of the Continental Shelf that incorporate claims
to an extended continental shelf entitlement appertaining to the Antarctic continent.
See, United Nations, Division for Ocean Affairs and the Law of the Sea, Submissions to
the Commission on the Limits of the Continental Shelf (30 October 2009), http://www
.un.org/Depts/los/clcs_new/commission_submissions.htm.
68Digest of United States Practice in International Law, 10711 (1975). Some States advocate
that the Antarctic continent and surrounding waters should be regarded as common
heritage of mankind: Moritaka Hayashi, The Antarctic Question in the United Nations,
Cornell International Law Journal, 19 (1986): 275.
marine protected areas in antarctic waters
561
conflicts with the respective claimant States obligations under the Antarctic
Treaty. The Antarctic Treaty entered into force in 1961 and its parties include all
States claiming sovereignty over territories on the Antarctic continent.69 Article
VI of the treaty defines its area of application as follows:
The provisions of the present Treaty shall apply to the area south of 60 South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in
any way affect the rights, or the exercise of the rights, of any State under international
law with regard to the high seas within that area.
Within this area, Article IV of the Antarctic Treaty simultaneously prohibits the
expansion of territorial claims but stipulates that its provisions are to be interpreted without prejudice to existing territorial claims. Apart from an ambiguous
reference to the high seas within its area of application,70 the Antarctic Treaty
does not contain provisions relating to the assertion of national jurisdiction in
Antarctic waters on the basis of territorial claims to the Antarctic continent.71
Conversely, the LOSC does not refer to the Antarctic Treaty. However Article
311(2) of the LOSC does preserve rights and obligations in other agreements provided they are compatible with the convention and do not affect the enjoyment by
other States Parties of their rights or the performance of their obligations under the
LOSC. There has been considerable academic debate concerning whether a State
claiming Antarctic territory is entitled to regard itself as a coastal State under the
LOSC and assert maritime claims within the Treatys area of application.72 In practice the position is clearerStates claiming maritime zones within the Treatys
area of application have sought to reconcile their implementation of parallel
rights and obligations under the ATS and the LOSC by refraining from taking steps
to enforce or consolidate their claims to maritime zones against third States.73
National laws (including laws concerning MPAs) that apply within the Antarctic
69As of 28 February 2012, 49 countries are party to the Antarctic Treaty. See the Secretariat website at http://www.ats.aq/devAS/ats_parties.aspx?lang=e.
70It is unclear whether Article VI of the Antarctic Treaty (1) recognises the high seas
character of waters located within the Treatys area of application, or (2) simply protects high seas rights and freedoms within waters that, for reasons independent to the
Treaty, happen to be high seas.
71 For further discussion see Christopher Joyner, The Antarctic Treaty System and the
Law of the Sea: Competing Regimes in the Southern Ocean? The International Journal
of Marine and Coastal Law, 10 (1995): 301; and, Ruth Davis, Enforcing Australian Law in
Antarctica: The HSI Litigation, Melbourne Journal of International Law, 8 (2007): 301.
72See, for example, Joyner, Antarctic Treaty System and Law of the Sea; Bernard Oxman,
Antarctica and the New Law of the Sea, Cornell Journal of International Law, 19 (1986):
211; and, M. J. Peterson, Antarctic Implications of the New Law of the Sea, Ocean
Development and International Law, 16 (1986): 137.
73For example, each of these States has requested that the UN Commission on the Limits
of the Continental Shelf not consider their claims to an extended continental shelf
projected from the Antarctic continent.
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Treatys area of application generally defer in express terms to international law
or specifically exclude jurisdiction over foreign nationals in order to minimise
the potential to provoke a dispute concerning the Treatys interpretation and
application.74 Accordingly, waters located south of 60S Latitude have an effective high seas character and the implementation of MPAs that apply more broadly
to nationals of more than one State can, at present, only be achieved through use
of the international legal provisions discussed below.
CAMLR Convention Article IX
The CAMLR Convention establishes a framework concerning the cooperative
management of MLR in Antarctic waters.75 In contrast to the Antarctic Treaty, the
Conventions area of application extends beyond 60S Latitude to a line approximating the Antarctic convergence.76 Consequently, the spatial jurisdiction of the
CAMLR Convention overlaps with the previously mentioned national maritime
zones located north of 60S Latitude. This spatial overlap is managed in accordance with a chairmans statement that was negotiated contemporaneously with
the Convention.77 The statement places the application of the Convention within
those undisputed zones at the discretion of the relevant claimant coastal States,
who in practice have continued to apply national measures that are generally
consistent with the Convention.78
74See, for example, Law no. 24,922 of 12 January 1998, Chapter II, Article 4 (Argentina);
Ley General de Pesca y Acuicultura 1991, Article 1 (Chile); Antarctic Act 1994 (United
Kingdom) Part III; and the Fisheries Management Act 1991 (Cth, Australia), section 8. In
relation to Australian legislation, see also Warwick Gullett and Clive Schofield, Pushing
the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean, The International Journal of Marine
and Coastal Law, 22 (2007): 545. A notable exception to this deference to international
instruments is found in the 1999 Australian Environment Protection and Biodiversity
Conservation Act (EPBC Act), which establishes a whale sanctuary within the entire
Australian EEZ (including the EEZ projected from the claimed Australian Antarctic
territory) where killing or injuring whales is prohibited and attracts criminal penalties
(EPBC Act section 229). The prohibition applies to foreign persons and vessels and
does not require consistency with international law. The Australian Government has
however refrained from taking action to enforce the prohibition against foreign vessels,
including Japanese whaling fleets that have operated in Antarctic waters forming part
of the claimed Australian EEZ.
75See, CAMLR Convention, Articles I(1)-(3).
76The coordinates of this line are defined in Article I(4) of the CAMLR Convention.
77Statement made by the chairman on 19 May 1980, appended to the Final Act of the
CAMLR Conference, http://www.ccamlr.org/pu/e/e_pubs/bd/toc.htm.
78Dean Bialek, Sink or Swim: Measures under International Law for the Conservation of
the Patagonian Toothfish in the Southern Ocean, Ocean Development and International
Law, 34 (2003): 105, 1078; Erik Jaap Molenaar, CCAMLR and Southern Ocean Fisheries, The International Journal of Marine and Coastal Law, 16 (2001): 465, 47782.
marine protected areas in antarctic waters
563
CAMLR Convention Article II(1) provides that the objective of this Convention
is the conservation of Antarctic marine living resources. The concept of conservation is expressly defined to include rational use of such resources.79 The Convention also requires any harvesting of marine living resources and associated
activities in the convention area to be conducted in accordance with the three
conservation principles, namely: (1) the maintenance of harvested populations
at levels that ensure their stable recruitment, (2) the maintenance of ecological
relationships, and (3) the prevention of changes in the marine ecosystems that
are not potentially reversible in two or three decades.80
To give effect to the overarching objective and conservation principles mentioned above, the Convention establishes a Commission of the Parties that is
empowered, inter alia, to establish binding measures regarding the conservation
and management of MLR including measures permitting the harvesting of particular species.81 In exercising its functions, the Commission is required to take
full account of recommendations and advice of a Scientific Committee of Commission Members.82
Article IX of the Convention specifically empowers the Commission, inter alia,
to formulate, adopt and revise conservation measures concerning: the designation of the opening and closing of areas, regions or sub-regions for purposes of
scientific study or conservation, including special areas for protection and scientific study...,83 in addition to the designation of open and closed seasons
for harvesting...84 These broadly-worded provisions are flexible mechanisms for
designating MPAs that are consistent with the broad objective and conservation
principles of the CAMLR Convention. To date, they have been utilised as outlined
below.
In 2005, with the express endorsement of the Commission, the CCAMLR Scientific Committee commenced a detailed program of preparatory work to identify
areas suitable for MPA designation.85 A key feature of this program is an attempt
to develop a detailed bio-regionalisation of Antarctic waters. Taking note of the
IUCN Categories outlined above, the Scientific Committee has advised the Commission that the whole Convention Area is equivalent to an IUCN Category IV
MPA, but there are areas within the Convention Area that require further special
79CAMLR Convention, Article II(2).
80Ibid., Article II(3).
81 Ibid., Article VII. Decisions of the Commission on matters of substance are taken by
consensus (Article XII) and are subject to opt-out procedures (Article IV(6)).
82Ibid., Article IX(4). The composition and functions of the Scientific Committee are set
out in Articles XIVXVI.
83Ibid., Article IX(2)(g).
84Ibid., Article IX(2)(f).
85CCAMLR, Report of the Twenty-Seventh Meeting of the Commission, paragraphs 7.2
7.3, http://www.ccamlr.org/pu/e/e_pubs/cr/drt.htm.
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consideration in a representative system of MPAs.86 In 2009 at the 28th meeting of the Commission, agreement was reached to establish an MPA covering a
large pelagic large area adjacent to the South Orkney Islands.87 Within this area
all types of fishing activities apart from certain scientific research are prohibited.88
Prohibitions also apply to transshipment activities and the discharge or dumping of waste by fishing vessels.89 In 2011 at the 30th meeting of the Commission,
agreement was reached to establish a framework conservation measure concerning the establishment of additional CCAMLR Marine Protected Areas.90 The
framework conservation measure contains ten operative paragraphs of the measure specify the objectives of CCAMLR MPAs91 in addition to detailed procedures
concerning the establishment, monitoring, management and review of such
areas.92 MPAs designated pursuant to the framework conservation measure apply
to vessels under the jurisdiction of CAMLR Convention Parties that are either
fishing vessels, or vessels conducting scientific research activities in accordance
with CCAMLR conservation measures.93 They do not apply to certain vessels
operated by a State for non-commercial purposes, including naval vessels.94
86The quote is taken from preamble of CCAMLR Conservation Measure 91-04 (2011).
87CCAMLR Conservation Measure 91-03 (2009).
88Ibid., paragraph 2.
89Ibid., paragraphs 3 and 4.
90CCAMLR Conservation Measure 91-04 (2011). The negotiation of this measure did
not proceed smoothly and several CAMLR Convention Partiesprimarily those with
active fishing interests in Antarctic waterswere initially opposed to establishment of
additional MPAs by the Commission. Extensive scientific work generated momentum
for MPA proposals and helped to allay concerns that MPAs would be excessively prohibitive of the continued harvesting of Antarctic marine living resources. The conclusion of a framework conservation measures, as opposed to the concrete designation
of additional MPAs, also postponed difficult debates concerning the establishment of
MPAs in active fishing areas.
91 Relevant objectives include: the protection of representative examples of marine ecosystems, biodiversity and habitats at an appropriate scale to maintain their viability
and integrity in the long term; the protection of key ecosystem processes, habitats and
species, including populations and life-history stages; the establishment of scientific
reference areas; the protection of areas vulnerable to impact by human activities; the
protection of features critical to the function of local ecosystems; and the protection
of areas to maintain resilience or the ability to adapt to effects of climate change.
See, CCAMLR Conservation Measure 91-04 (2011), paragraph 2.
92CCAMLR Conservation Measure 91-04 (2011), paragraphs 35, 8.
93Ibid., paragraph 6. A footnote to this provision broadly defines the term fishing vessel
to include: any vessel of any size used for, equipped to be used for, or intended for use
for fishing or fishing-related activities, including support ships, fish processing vessels,
vessels engage in transshipment and carrier vessels equipped for the transportation
of fishery products except container vessels and excluding Members marine science
research vessels.
94Ibid., paragraph 7. Note however that paragraph 7 exhorts CAMLR Convention Parties
to adopt measures to ensure that such vessels act in a manner consistent, so far as is
reasonable and practicable, with this conservation measure.
marine protected areas in antarctic waters
565
The measures discussed above, and any future MPA designations undertaken in accordance with the framework conservation measure and Article IX
of CAMLR Convention, have three key functional limitations that constrain the
implementation of highly restrictive MPA policy options (for example, measures
consistent with IUCN Categories Ia and Ib). The first is that they do not provide
a basis for restricting human activity unrelated to MLR management, including the increasing number of tourist vessels operating in Antarctic waters. The
subject matter jurisdiction of the CAMLR Convention is confined by Article I(1),
which provides inter alia that the Convention applies to Antarctic marine living
resources within its spatial area of application. The second functional limitation
is that they do not provide a basis for restricting human activity concerning certain marine mammals. The subject matter jurisdiction of the CAMLR Convention
is specifically limited in this context by Article VI, which provides that nothing in
the Convention derogates from the rights and obligations of Parties to the ICRW
(concerning the management of whales) and the Convention for the Conservation
of Antarctic Seals (CAS Convention).95
The third functional limitation arises from the voluntary nature of participation in the CAMLR Convention: Unless they have agreed otherwise, States who
are non-parties to the Convention are of course under no obligation to abide by
conservation measures established by the Commission, including those concerning MPAs.96 Vessels flagged to several States falling under this category have harvested Antarctic MLR at unsustainable levels,97 and the Commission has adopted
several measures designed to encourage accession to the CAMLR Convention and
compliance with the Commissions conservation and management measures.98
For non-parties to the CAMLR Convention who are States Parties to the The
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December Relating to the Conservation and Management of Stradling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks
Agreement),99 the entitlement to contravene CCAMLR conservation measures is
95Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972,
entered into force 11 March 1978, 11 (1972) ILM 251 (CAS Convention). As noted previously, the latter instrument concerns the management of seals in Antarctic waters and,
apart from enabling limited scientific activity, is not actively applied at present.
96For relevant basic principles of international law in this context, see Articles 18 and
26 of the Vienna Convention on the Law of Treaties (opened for signature 23 May 1969,
entered into force on 27 January 1980, 1155 UNTS 331).
97See, David Agnew, The Illegal and Unregulated Fishery for Toothfish in the Southern
Ocean and the CCAMLR Catch Documentation Scheme, Marine Policy, 24 (2000): 361.
98See, for example, Policy to Enhance Cooperation between CCAMLR and Non-Contracting Parties (as adopted at CCAMLR-XVIII and amended at CCAMLR-XXV), http://
www.ccamlr.org/pu/e/e_pubs/cm/0708/coop.pdf.
99The Agreement for the Implementation of the Provisions of the United Nations Convention
on the Law of the Sea of 10 December Relating to the Conservation and Management of
Stradling Fish Stocks and Highly Migratory Fish Stocks, 1995 (UN Fish Stocks Agreement)
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somewhat constrained. The UN Fish Stocks Agreement establishes a framework
of fisheries management in areas beyond national jurisdiction (that is, the high
seas) for the management of fish stocks that straddle the EEZ and high seas, and
for highly migratory fish stocks that migrate through several EEZs and high seas
areas.100 It establishes an obligation to cooperatively manage fish stocks through
the establishment of subregional or regional fisheries management organisations
or arrangements and conditions the rights to fish on the high seas in cooperation
with these organisations or arrangements.101
The extent to which this obligation mandates cooperation with CCAMLR
conservation and management measures is not entirely clear. The relationship
between the UN Fish Stocks Agreement and CAMLR Convention is not expressly
defined in either convention. Further, the CAMLR Convention is not readily
characterised as a regional implementation of the UN Fish Stocks Agreement
because it: (1) predates the latter convention; (2) applies not solely to high seas
areas but to a combination of high seas areas, unambiguous national maritime
zones, and waters subject to national maritime claims that are not asserted
against other States; and (3) has a broad subject matter jurisdiction concerning
Antarctic marine living resources that is not confined simply to straddling or
highly migratory fish stocks.102 However, the UN Fish Stocks Agreement does not
define the concept of subregional or regional fisheries management organisations or arrangements in restrictive terms.103 There is no specific definition of
the term regional fisheries management organisation, and the term arrangement is defined broadly to mean:
a cooperative mechanism established in accordance with the Convention and this
Agreement by two or more States for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling
fish stocks or highly migratory fish stocks [emphasis added].104
opened for signature 4 August 1995, entered into force 11 December 2001, 2167 UNTS. 3.
At present more than 40 States Parties to the UN Fish Stocks Agreement are CAMLR
Convention non-parties: UN Division of Ocean Affairs and the Law of the Sea, Status
of the United Nations Convention on the Law of the Sea...as at 20 September 2011,
http://www.un.org/depts/los/reference_files/status2010.pdf. Note however that several
States counted within this total are members of the European Union, which is party
to the CAMLR Convention.
100The agreement was designed to address the perceived shortcomings of the LOSC provisions and the significant decline of many such commercially harvested fish stocks
during the 1980s and 1990s. See, for example, David Balton, Strengthening the Law
of the Sea: the New Agreement on Straddling Fish Stocks and Highly Migratory Fish
Stocks, Ocean Development and International Law, 27 (1996): 125.
101 See, UN Fish Stocks Agreement, Articles 813, 17.
102For further discussion see, Molenaar, CCAMLR and Southern Ocean Fisheries.
103Ibid.
104UN Fish Stocks Agreement, Article 1(1)(d).
marine protected areas in antarctic waters
567
As a result of the italicised language, the above definition refers to cooperative
mechanisms, such as the CAMLR Convention, having purposes other than the
establishment of regional conservation and management measures for straddling
or highly migratory fish stocks.105 Accordingly, the CAMLR Conventions broader
remit would not excuse States Parties to the UN Fish Stocks Agreement from
their obligations to cooperate with CCAMLR conservation measures concerning
straddling or highly migratory fish stocks. However, any CCAMLR measures
concerning stocks that are not straddling or highly migratory, would, arguably,
fall beyond the subject matter jurisdiction of the Fish Stocks Agreement and
would not therefore be subject to its cooperative obligations.
Madrid Protocol, Annex V, Articles 3 and 4
The Madrid Protocol establishes a environmental protection framework within the
area of application of the Antarctic Treaty.106 The Protocol and its associated
annexes set out detailed stringent obligations to plan and carry out activities
so as to limit environmental impacts, to conduct prior assessment of possible
environmental impacts, and to undertake regular and effective monitoring of
the Antarctic environment.107 The designation of MPAs is enabled by Articles 3
and 4, Annex V of the Protocol, which provide respectively for the designation
of any area, including any marine area as an Antarctic Specially Protected
Area (ASPA) or an Antarctic Specially Managed Area (ASMA) in which various
restrictive measures can be applied in accordance with a detailed area-specific
management plan.108 The overarching purpose of ASPAs is to protect outstanding environmental, scientific, historic, aesthetic or wilderness values, any
combination of those values, or ongoing or planned scientific research.109 The
overarching purpose of ASMAs is to assist in the planning and co-ordination
of activities, avoid possible conflicts, improve co-operation between Parties or
minimise environmental impacts.110 As these objectives suggest, ASPAs are more
restrictive of human activities than ASMAs. For example: entry into ASPAs is subject to a permit issued appropriate national authorities, which may only be issued
for a compelling scientific purpose which cannot be served elsewhere and which
105Molenaar, CCAMLR and Southern Ocean Fisheries, 496.
106Catherine Redgwell, Environmental Protection in Antarctica: The 1991 Protocol,
International and Comparative Law Quarterly, 43 (1994): 599; and Christopher Joyner,
The 1991 Madrid Environmental Protection Protocol: Contributions to Marine Pollution Law, Marine Policy, 20 (1996): 183.
107Broad environmental management principles are set out in Article 3 of the Madrid
Protocol. In relation to environmental impact assessment (EIA) procedures, see Article
8 and Resolution 4 (2005), ATCM XXVIII, CEP VIII, Stockholm.
108See, Madrid Protocol, Annex V, Articles 112.
109Ibid., Annex V, Article 3.
110 Ibid., Annex V, Article 4.
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ben milligan
will not jeopardise the natural ecological system in that Area.111 In contrast, entry
into an ASMA does not require a permit.112
Unlike CAMLR Convention Article IX closed area designations, ASMAs and
ASPAs can restrict human activity unrelated to MLR management. Indeed the
subject matter jurisdiction of the Protocol encompasses environmental matters
generallyArticle 2 provides that:
The Parties commit themselves to the comprehensive protection of the Antarctic
environment and dependent and associated ecosystems and hereby designate Antarctica as a natural reserve, devoted to peace and science.
However, there are three key functional limitations of ASPA and ASMA designations that constrain that constrain the implementation of highly restrictive MPA
policy options (for example measures consistent with IUCN Categories Ia and Ib).
The first is a result of specific provisions that limit the subject matter jurisdiction
of the Madrid Protocol. Article 4(2) of the Protocol provides that [n]othing in
this Protocol shall derogate from the rights and obligations of the Parties to this
Protocol under the other international instruments in force within the Antarctic
Treaty system. Article 7 provides that [n]othing in this Annex shall derogate
from the rights and obligations of Parties under the ICRW. Article 6(2), Annex V
also provides that:
no marine area shall be designated as an Antarctic Specially Protected Area or an
Antarctic Specially Managed Area without the prior approval of the Commission for
the Conservation of Antarctic Marine Living Resources.
The effect of these provisions is that (1) in substance, ASPA and ASMA designations under the Madrid Protocol do not apply to any harvesting of MLR undertaken
pursuant to the ICRW (concerning whales) or CAMLR Convention (concerning
MLR generally); and (2) procedurally, the designation of marine areas as ASPAs
or ASMAs cannot proceed without the cooperation and approval and CCAMLR.
The second functional limitation of ASPA and ASMA designations arises from
the voluntary nature of participation in the Madrid Protocolvessels that are
not-flagged its States Parties are of course under no obligation to abide by obligations set out in the Protocol, including those concerning ASPAs and ASMAs. The
third functional limitation arises from the limited spatial coverage of the Madrid
Protocol which, as noted above, does not extent throughout Antarctic waters but
rather to waters located south of 60S Latitude. It does not therefore enable the
designation of ASPAs or ASMAs extending north of 60S Latitude but within
the northern limit of the Antarctic convergence.
In contrast to recent practice within CCAMLR, the Madrid Protocols MPA
designation provisions have seen limited use. Several marine ASPAs and ASMAs
111Ibid., Annex V, Articles 3, 7.
112Ibid., Annex V, Article 4.
marine protected areas in antarctic waters
569
have been designated but they are small in scale and primarily located in coastal
areas.113 The limited designation of marine ASPAs and ASMAs is unsurprising
given the first functional limitation of the Madrid Protocol discussed above. Taking into account this limitation, the ATCM formally decided in 2005 to require
prior approval from CCAMLR of certain marine ASPA and ASMA designations.114
It has also in practice deferred to CCAMLR to take the organisational and institutional lead on matters concerning the establishment of MPAs. Within the ATCM
there have been several discussions concerning the potential for ASPAs and
ASMAs to complement CCAMLR MPAs however no framework for complementary designations has been established to date.
ICRW Articles IV and V
The ICRW applies globally and, as alluded to above, is the principal international
instrument concerning the conservation and management of whales.115 The primary objective set out in the ICRW is the conservation of whales, for the purpose
of enabling the development of the global whaling industry.116 The Convention
establishes an International Whaling Commission (IWC)117 which, in accordance
with Articles IV and V of the ICRW, is attributed broad regulatory responsibility regarding management (including spatial management) of the commercial exploitation of whales. The regulatory responsibility of the IWC does not
cover so-called special permit whaling, which a Contracting Government may
authorise its nationals to undertake for scientific purposes.118 Because the competence of the IWC is confined to the management of human interactions with
particular species (that is, whales), it does not have the capacity to implement
spatial protection measures other than those falling under IUCN Category IV.
However, a key advantage of IWC protective measures is their ability to complement MPAs designated under the CAMLR Convention or Madrid Protocol which,
113For an overview of the relevant ASMA and ASPA designations see, Susie Grant and
Phil Trathan, Marine Protected Areas in the Southern Ocean. The authors note that:
the ATCM has designated 6 exclusively marine...[ASPAs]...4 ASPAs with both
marine and terrestrial components, and 3...[ASMAs] with both marine and terrestrial
components...
114See ATCM Decision 9 (2005).
115Note also the Agreement on Cooperation in Research, Conservation and Management
of Marine Mammals in the North Atlantic, opened for signature 9 April 1992, entered
into force 7 July 1992a regional agreement between the Faroe Islands, Greenland,
Iceland, and Norway.
116This objective is reflected in a paragraph of the Conventions preamble: having decided
to conclude a convention to provide for the proper conservation of whale stocks and
thus make possible the orderly development of the whaling industry.
117 ICRW, Article III.
118Ibid., Article VIII.
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ben milligan
as noted above, exhibit functional limitations concerning marine mammals and
apply without prejudice to the ICRW.
This complementary potential has been realised in practice. Despite the
emphasis placed on the exploitation of whales in the text of the ICRW, measures
established by the IWC have evolved to focus primarily on whale conservation. In
1979 the IWC established a whale sanctuary in the Indian Ocean in which commercial whaling is prohibited.119 In 1982, this measure was complemented by an
IWC decision establishing a global moratorium on commercial whaling.120 The
Commission also voted in 1994 to adopt a whale sanctuary in the Southern Ocean
in which commercial whaling is prohibited.121 These restrictive measures have
remained in place despite significant lobbying efforts by several States in support of their removal.122 The Southern Ocean whale sanctuary extends throughout Antarctic waters, apart from in one area between 20E Longitude and 130E
Longitude that is covered by the Indian Ocean whale sanctuary.123 Accordingly,
all whaling not covered by the special-permit exception is prohibited throughout
Antarctic waters. Citing this exception, Japan has on several occasions authorised
Japanese vessels to engage in harvesting of minke and sperm whales in Antarctic
waters.124 Several States, in particular Australia and New Zealand, have actively
protested Japans actions on the basis that, inter alia, the authorised whaling is not
for a scientific purpose and amounts to an abuse of the special-permit exception.125
In May 2010 the Australian government initiated proceedings in the International
119See the IWC website, http://iwcoffice.org/conservation/sanctuaries.htm.
120ICRW, Schedule to the Convention, paragraph 10(e), http://iwcoffice.org/_documents/
commission/schedule.pdf. Increased participation in the ICRW afforded decision-making power to States opposed to the commercial exploitation of whales, see: Patricia
Birnie, Thirty-Fourth Meeting of the International Whaling Commission: Brighton,
UK, 1924 July 1982, Marine Policy, 7 (1983): 64.
121 International Whaling Commission, Forty-Sixth Report (1994), section 12.3 of the
Chairmans report. See also Elisa Morgena, Whale Sanctuaries: An Evolving Concept
within the International Whaling Commission, Ocean Development and International
Law, 35 (2004): 319.
122See, Mike Iliff, The International Whaling Regime post 2007, Marine Policy, 32 (2008):
522; Mike Iliff, The Hogarth Initiative on the Future of the International Whaling
Commission, Marine Policy, 34 (2010): 360.
123The sanctuarys northern boundary follows the 40S parallel of latitude, with two
exceptions: In the Indian Ocean sector it joins the southern boundary of the Indian
Ocean whale sanctuary at 55 South Latitude. Around South America and in parts of
the South Pacific Ocean the boundary is located at 60 South Latitude: ICRW, Schedule
to the Convention, paragraph 7(b).
124See, Independent Panel of Legal and Policy Experts, Japans Scientific Whaling Program and the Antarctic Treaty System, (12 January 2009), http://cbialdia.mardecetaceos.net/archivos/download/Reporte Canberrazc1527.pdf.
125See, for example, Joanna Mossop, When Is a Whale Sanctuary Not a Whale Sanctuary? Japanese Whaling in Australian Antarctic Maritime Zones, Victoria University of
Wellington Law Review, 34 (2005): 757.
marine protected areas in antarctic waters
571
Court of Justice concerning the Japanese Governments authorisation of whaling
by Japanese vessels in Antarctic waters.126 In February 2013 the Court authorised
New Zealand to intervene in the proceedings.127 Further progress will be keenly
observed.
MARPOL Annexes I, II and V
MARPOL is the principal international instrument concerning the prevention of
marine pollution by ships from operational causes (that is, other than dumping).128
There are currently 151 Contracting States to MARPOL, whose combined merchant fleets constitute approximately 99 per cent of the gross tonnage of the
worlds merchant fleet.129 Annexes to the Convention set out detailed regulations
concerning, inter alia, the discharge from ships of oil, chemicals, sewage, garbage, and air pollution.130 Annexes I (oil), II (noxious liquid substances carried in
bulk), and V (garbage) of the Convention provide for the designation of Special
Areas subject to mandatory restrictive measures for preventing sea pollution.131
Because Special Area designations do not provide a basis for restricting the harvesting of MLR, they are not a suitable primary mechanism for implementing MPA
policy options consistent with IUCN Categories discussed above. However, a key
advantage of MARPOL provisions is their ability to supplement MPAs designated
under CCAMLR or the Madrid Protocol through the imposition of spatially-based
restrictive measures on most vessels flagged to non-parties to those instruments
(in particular the increasing number of cruise ships and other tourism-related
vessels operating in Antarctic waters).
Waters located south of 60S Latitude have been designated as a Special Area
for the purposes of MARPOL Annexes I, II and V, and MARPOL Annex I has also
been used to prohibit the carriage or use of certain heavy grade oils, again in waters
south of 60S Latitude.132 MARPOL and the Madrid Protocol have overlapping
126Government of Australia, Application Instituting Proceedings, 31 May 2010, http://
www.icj-cij.org/docket/files/148/15951.pdf.
127See International Court of Justice, Press Release 13 February 2013, http://www.icj-cij.
org/docket/files/148/17266.pdf.
128Vaughan and Lowe, Law of the Sea, 339.
129IMO, Status of Multilateral Conventions..., (as at 16 Februrary 2012), http://www
.imo.org/About/Conventions/StatusOfConventions/Documents/Status%20%202012
.pdf.
130International Maritime Organization, International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, http://
www.imo.org/Conventions/contents.asp?doc_id=678&topic_id=258.
131For further discussion see Markus Kachel, Particularly Sensitive Sea Areas: The IMOs
Role in Protecting Vulnerable Marine Areas (Heidelberg: Springer, 2008), 97101.
132See, IMO, Special Areas under MARPOL http://www.imo.org/OurWork/Environment/PollutionPrevention/SpecialAreasUnderMARPOL/Pages/Default.aspx. Note also
ongoing efforts to develop a mandatory Polar Code designed to minimise navigational
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ben milligan
subject matter jurisdiction concerning operational vessel source pollution in
waters below 60S Latitude. Potential conflicts these instruments are addressed
in part by a specific deference to MARPOL contained in Annex IV of the Madrid
Protocol (concerning certain types of marine pollution).133 The relationship
between the two instruments in other marine contexts is not clearly defined and
different States have taken different positions on this issue in practice.134
SOLAS Chapter V
SOLAS is the principal international instrument concerning the safety of merchant ships.135 The central objective of the Conventionwhich contains 12
Chapters of detailed obligations and technical requirementsis to specify minimum standards for the construction, equipment and operation of such ships.136
There are currently 161 Contracting States to SOLAS, whose combined merchant
fleets constitute approximately 99 per cent of the gross tonnage of the worlds
merchant fleet.137 SOLAS Chapter V provides for the designation of areas to be
avoided (ATBAs) by ships or certain classes of ships where, inter alia, there is
a possibility that unacceptable damage to the marine environment could result
from a navigational incident.138
Because ATBA designations impact only upon vessel navigation, they are not a
suitable primary mechanism for regulating MLR harvesting through implementation of varied MPA policy options. However, a key advantage of ATBAs is their
ability to supplement MPAs designated under CCAMLR or the Madrid Protocol
through the imposition of spatially-based restrictive measures on most vessels
flagged to non-parties to those instruments (in particular the increasing number
of cruise ships and other tourism-related vessels operating in Antarctic waters).
As far as the author is aware, there are currently no designated ATBAs in
Antarctic waters. A noteworthy potential means of designating such areas is the
risks and mitigate the impacts of any incidents that do occur: See Antarctic and Southern Ocean Coalition, Working Towards a Mandatory Polar Code, (October 20, 2010),
http://asoc.org/storage/documents/IMO/ASOC_Polar_Code_Briefing_October_2010
.pdf.
133Madrid Protocol, Annex IV, Article 14. See, Kevin Wood, The Uncertain Fate of
the Madrid Protocol to the Antarctic Treaty in the Maritime Area, Ocean Development
and International Law, 34 (2003): 139.
134Madrid Protocol, Annex IV, Article 14.
135IMO, [Overview of the] International Convention for the Safety of Life at Sea (SOLAS),
1974, http://www.imo.org/about/conventions/listofconventions/pages/internationalconvention-for-the-safety-of-life-at-sea-(solas),-1974.aspx.
136Ibid.
137IMO, Status of Multilateral Conventions and Instruments.
138SOLAS Chapter V, Regulation 10. See also, Julian Roberts, Protecting Sensitive Marine
Environments: The Role and Application of Ships Routeing Measures, The International Journal of Marine and Coastal Law, 20 (2005): 135.
marine protected areas in antarctic waters
573
identification of a Particularly Sensitive Sea Area (PSSA) in Antarctic waters in
accordance with procedures developed by the International Maritime Organisation (IMO).139 A PSSA is an area of the marine environment that needs special
protection through action by the IMO because of its significance for recognised
ecological, socio-economic, or scientific attributes where such attributes may
be vulnerable to damage by international shipping activities.140 IMO Member
Government(s) are entitled to propose the identification of a PSSA in particular
location(s).141 PSSA proposals must be accompanied by supporting information in
addition to stated associated protective measures that would enable protection
of the PSSA.142 Associated protective measures may include, inter alia, SOLAS
ATBAs or MARPOL Special Areas.143 At present, no PSSAs have been identified
in Antarctic waters.144
Conclusion and Recommendations
The foregoing discussion has identified several legal provisions that each
enable the designation of some form of MPA in Antarctic waters, and each exhibit
functional and jurisdictional limitations that constrain their ability to implement
of certain MPA policy options. A key limitation of the surveyed frameworks is
that none of them independently enable the designation of highly restrictive
MPAs consistent with IUCN Categories Ia or Ib. Given the functionally-limited
nature of legal frameworks enabling marine spatial protection in Antarctic waters,
there is a clear need to coordinate their implementation. Indeed, functionally
comprehensive spatial protection of Antarctic waters can only be achieved via
(1) the complementary or parallel designations of MPAs in Antarctic waters using
multiple legal mechanisms; and (2) the continued development of procedures
and informal consultative networks that coordinate MPA-related decision-making undertaken within CCAMLR, the ATCM, IMO, ICRW, and national government agencies with competence concerning the designation of MPAs in Antarctic
waters.
139Concerning PSSAs generally see: Julian Roberts, Marine Environment Protection and
Biodiversity Conservation: The Application and Future Development of the IMOs Particularly Sensitive Sea Area Concept (Heidelberg: Springer, 2010).
140IMO Res A.982, 24th Session (2005) Revised Guidelines for the Identification and
Designation of Particularly Sensitive Sea Areas, http://docs.imo.org/Shared/Download
.aspx?did=35657.
141 Ibid.
142Ibid.
143Ibid.
144For a list of currently identified PSSAs see http://www.imo.org/OurWork/Environment/
Pollution Prevention/PSSAs/Pages/Default.aspx.
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ben milligan
Several complementary or parallel MPA designations already exist in Antarctic
waters. For example, Special Area designations under MARPOL address functional
limitations of the CAMLR Convention (no subject matter jurisdiction unrelated
to MLR) and Madrid Protocol (concerning vessels flagged to non-Parties). The
Southern and Indian Ocean whale sanctuaries established by the ICRW address
functional limitations of the CAMLR Convention and Madrid Protocol (concerning the harvesting of whales). An important outstanding issue is the absence of
ASPAs, ASMAs and ATBAs that complement MPAs designated under the CAMLR
Convention. Coordinated use of relevant CAMLR Convention, Madrid Protocol and
SOLAS Chapter V provisions is the subject of ongoing diplomatic discussion.145 Such
action is also clearly contemplated by provisions contained in these instruments,146
and in the CCAMLR Framework Conservation Measure concerning MPAs, which
contains the following language:
When a new CCAMLR MPA is designated, the Commission shall endeavour to
identify which actions by other elements of the Antarctic Treaty System, and other
organisations, such as the International Maritime Organisation, should be pursued to
support the specific objectives of the MPA once established.147
It remains to be seen whether the coordinated approach envisaged by this language results in the establishment of additional complementary MPA designations and the further strengthening of spatial protection of Antarctic waters.
145See generally, Antarctic and Southern Ocean Coalition, Rising to the challenge: Key
steps to deliver a Comprehensive and Representative Marine Protected Areas Network
in the Southern Ocean by 2012, Information Paper 83, Antarctic Treaty Consultative
Meeting 13, http://www.asoc.org/storage/documents/Meetings/ATCM/XXXIII/MPAs_
ip083_e-1.pdf.
146See, for example, CAMLR Article XXIIIwhich requires the Commission and Scientific
Committee to co-operate with the Antarctic Treaty Consultative Parties on matters
falling within the competence of the latter. Note also CCAMLR Conservation Measure
91-02 (2012), which provides briefly that Each Contracting Party shall ensure that their
fishing vessels licensed in accordance with Conservation Measure 10-02 are aware of
the location and relevant management plan of all designated ASPAs and ASMAs which
include marine areas listed in an Annex to the former Conservation Measure.
147CCAMLR Conservation Measure 91-04 (2011), paragraph 10.
chapter Twenty-five
Evaluating Canadas Position on the Northwest Passage in
Light of Two Possible Sources of International Protection
Suzanne Lalonde*
The Canadian North is as enduring a myth of cultural and national significance
as the American West is to the United States, according to Professor Sherrill
Grace of the English Department at the University of British Columbia.1 The
American historian Elizabeth Elliott-Meisel, an Arctic expert, agrees: Canadians
have a near-mystical bond to their Arctic, a frigid vastness that has sparked the
Canadian imagination, inspired and shaped a Canadian national identity.2 Echoing these sentiments, Adrienne Clarkson, while she was Governor-General of
Canada, evoked the dream of nature and the North in the Canadian psyche.3
Canadians profound attachment to the Arctic and their vision of themselves
as a northern people, have not often been put to the test. The perennial ice,
largely impenetrable, has always been an ally, protecting the Far North from the
covetousness of outsiders. But the ice is melting at an alarming rate, transforming
the Arctic into a strategic region at the heart of global affairs. With its vast natural
resources and new transit routes, the thawing Arctic is garnering the attention of
the international community at large.
While Canadas title to the islands in the Canadian Arctic archipelago is
not today contested,4 increased access to the Arctic region has created other
*Professor, Facult de droit, Universit de Montral, Canada.
1Media Release, What Direction North? A UBC Professor Ponders the Impact of the
Canadian North on our Culture, 22 May 1997, University of British Columbia, http://
www.publicaffairs.ubc.ca/media/releases/1997/mr_97_49.html.
2Elizabeth B. Elliot-Meisel, Still Unresolved After Fifty Years: The Northwest Passage
in Canadian-American Relations, 19461998, American Review of Canadian Studies, 29
(1999): 407.
3Her Excellency the Right Honourable Adrienne Clarkson, speech to the Canadian Circle,
Ottawa Branch, Une vision de limaginaire [A vision of the imaginary], 29 January
2003, http://www.gg.ca/media/doc.asp?lang=f&DocID=1088.
4The only exception has been an inconsequential dispute with Denmark over Hans
Island, a tiny, barren islet between Ellesmere Island and northern Greenland and the
576
suzanne lalonde
challenges for Canada, including defending its right to control navigation through
the Northwest Passage. For over forty years, Canada has claimed that all of the
waters within its Arctic archipelago, including the various routes of the Northwest Passage, are Canadian historic internal waters over which it exercises full
and exclusive authority.
Though a number of legal arguments support Canadas contention that the
waters of the Arctic archipelago are Canadian historic waters, its claim has been
the object of academic criticism as well as official protest. Indeed, the United
States has always considered that the Passage constitutes a strait used for international navigation governed by a regime of guaranteed freedoms. Canada, as
the coastal State, may retain title to the surrounding waters, but foreign vessels
have a right of transit passage, much like walkers on a footpath through British
farmland.5
Canadas detractors have at times characterised the Canadian claim as excessive, arguing that existing international instruments provide an array of legal
norms and concepts which guarantee the preservation of the Arctic environment
and as such, enable Canada to achieve its national objectives. Though a number
of rules and mechanisms are identified as possible sources of protection for Canadas North, this chapter will focus on two key international tools which are often
invoked in such discussions: Article 234 of the United Nations Convention on the
Law of the Sea (LOSC)6 and the designation by the International Maritime Organization (IMO) of a marine area as a Particularly Sensitive Sea Area (PSSA).
The Arctic Exception7
Article 234 of the LOSC is often described as a victory for Canadian diplomacy,
at least by Canadian authors.8 According to these experts, the inclusion of
situation has been generally well managed since the parties entered into a cooperative
agreement in 2005.
5The author is grateful to Professor Michael Byers of the University of British Columbia
for this very apt comparison.
6United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 396 (LOSC).
7The author wishes to acknowledge the contribution of Professor Michael Byers with
whom she co-authored an article entitled Who Controls the Northwest Passage? Vanderbilt Journal of Transnational Law, 42 (2010): 1,1331,210. The section of this chapter
on the history behind the adoption of the Canadian Arctic Waters Pollution Prevention
Act draws upon the Vanderbilt article.
8For example Don McRae has stated that The negotiation of Article 234 is a major
achievement of Canadian foreign policy. See, Don M. McRae, The Negotiation of Article 234, in Franklyn Griffiths (ed.), Politics of the Northwest Passage (Montreal: McGill
Queens University Press, 1987), 110. See also, R. Michael MGonigle and Mark W. Zacher,
Canadian Foreign Policy and the Control of Marine Pollution, in Barbara Johnson and
evaluating canadas position on the northwest passage
577
Article 234 into the LOSC was a vindication of Canadas controversial Arctic
Waters Pollution Prevention Act (AWPPA)9 adopted in 1970 in the wake of the
Manhattan controversy.
In 1969, an American company, Humble Oil, sent an ice-strengthened
super-tankerthe S.S. Manhattanthrough the Northwest Passage. The voyage
was designed to test whether the route could be used to transport Alaskan oil to
the Atlantic seaboard. The U.S. government dispatched its Coastguard icebreaker
Northwind to accompany the vessel and made a point of not seeking permission
from Canada. The Canadian government responded by granting permission anyway. It sent one of its own icebreakers, the Sir John A. Macdonald to help and
arranged for a Canadian government representative to be on board the Manhattan during the transit.
Washingtons refusal to seek permission for the Manhattans voyage was not
intended as a challenge to Canadian sovereignty, but was rather based on the
firm belief that the ship would not sail through areas under Canadian jurisdiction. At the time, Canada claimed only a 3 nautical mile territorial sea, which
left a high seas corridor through the Northwest Passage. American officials had
therefore expected that the Manhattan would remain on the high seas throughout its voyage, entering the Passage through Lancaster Sound and exiting
through MClure Strait at the western end.10
However on the night of 10 September 1969, while attempting to become the
first vessel ever to make an east-to-west passage of MClure Strait, the Manhattan
became trapped in the ice. Freed with the help of the Sir John A. Macdonald, the
Manhattan was forced to turn back and use the narrow Prince of Wales Strait,
where, as Pharand explains, it had to go through the territorial waters of Canada
because of the presence of the small Princess Royal Islands.11 Despite the unanticipated character of the Manhattans entry into Canadian territorial waters, as
well as Canadas initial grant of permission and the substantial participation of
the Canadian Coast Guard, the Manhattans voyage unleashed a political storm
in Ottawa.
In response to the crisis, the Canadian Parliament adopted the following year
the AWPPA. The Act imposes strict safety and environmental requirements on all
Mark Zacher (eds.), Canadian Foreign Policy and the Law of the Sea (Vancouver: University of British Columbia Press, 1972), 142.
9Arctic Waters Pollution Prevention Act, R.C.S., 1985, c. A-12 (AWPPA). The Act, and its
regulations, are available on the website of the federal Department of Justice, http://
laws-lois.justice.gc.ca/eng/acts/A-12.
10Indeed, prior to the Manhattans voyage, the State Department had informed the Canadian government that it had no intention of staking a claim to the Northwest Passage
and was merely undertaking a feasibility study; Jay Walz, Oil Stirs Concern Over
Northwest Passage Jurisdiction, New York Times, 15 March 1969.
11 Donat Pharand, The Arctic Waters and the Northwest Passage: A Final Revisit, Ocean
Development and International Law, 38 (2007): 38.
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suzanne lalonde
shipping, initially within 100 nautical miles and today within 200 nautical miles of
Canadas Arctic coast, including the islands.12 The AWPPA was, at the time of its
adoption, contrary to international law, which did not recognise coastal State
rights in the waters beyond the territorial sea.13 Indeed, the Canadian government
effectively admitted that the AWPPA was illegal when, shortly before adopting
the statute, it entered a reservation to its acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ) that excluded litigation over the
matter.14
The dispute over the AWPPA receded however after the 1982 adoption of the
LOSC, Article 234 of which allows coastal States to enact laws against maritime
pollution out to 200 nautical miles in ice-covered waters. Indeed, as McRae
has noted:
[i]n the space of six years, Canada went from the assertion of a claim to jurisdiction in domestic legislation that was protested by other States, and the international
validity of which was sufficiently in doubt for Canada to withdraw its acceptance of
the jurisdiction of the ICJ, to international recognition of the acceptability of that
legislation.15
Article 234 provides that:
Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in
ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most
12Initially, the Act extended out to 100 nautical miles from Canadas northern coast.
However, as part of the Harper Governments Northern Strategy, the spatial scope of
the AWPPA and its regulations was recently extended from 100 to 200 nautical miles.
Bill C-3, an Act to amend the AWPPA, received Royal Assent on 11 June 2009 and came
into force on 1 August 2009.
13Coastal rights beyond the territorial sea were recognized, however, as regards the continental shelf.
14See, International Court of Justice Yearbook, 55 (196970), reproduced in International
Legal Materials, 9 (1970): 598. The reservation excluded from the Courts compulsory
jurisdiction over Canada any disputes arising out of or concerning jurisdiction or
rights claimed or exercised by Canada in respect of the conservation, management
or exploitation of the living resources of the sea, or in respect of the prevention or control of pollution or contamination of the marine environment in marine areas adjacent
to the coast of Canada. In explaining the need for the reservation on 8 April 1970,
Prime Minister Pierre Trudeau acknowledged that there was a very grave risk that the
World Court would find itself obliged to find that coastal States cannot take steps to
prevent pollution. Such a legalistic decision would set back immeasurably the development of law in this critical area. Reproduced in Richard Bilder, The Canadian Arctic
Waters Pollution Prevention Act: New Stresses on the Law of the Sea, Michigan Law
Review, 69 (19701): 29.
15 Don M. McRae, The Negotiation of Article 234, 110. See also, Donat Pharand, The
Northwest Passage in International Law, Canadian Yearbook on International Law,
evaluating canadas position on the northwest passage
579
of the year create obstructions or exceptional hazards to navigation, and pollution of
the marine environment could cause major harm to or irreversible disturbance
of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the
best available scientific evidence.16
Yet Canadas concerns over the use and management of its Arctic waterways
flared again in 1985 following a westerly transit of the Northwest Passage by the
U.S. Coast Guard icebreaker USCGC Polar Sea. Despite a diplomatic understanding between the two countries and the presence of two Canadian Coast Guard
captains on board as invited observers, the Polar Seas transit in early August
caused a rush of public anxiety in Canada.17
To quell the uproar, Canada acted to consolidate its legal position by drawing straight baselines connecting the outer headlands of its Arctic archipelago.18
In making the announcement in September 1985, Joe Clark, then Minister for
External Affairs, stated that these baselines define the outer limit of Canadas
historic internal waters.19 In the ensuing decades, various Canadian government
initiatives, such as the Arctic Marine Conservation Strategy and Green Plan in the
1980s and 1990s, as well as Canadas current Northern Strategy, Ocean Act20 and
Environmental Protection Act21 have reinforced the idea of the North as a fundamental part of Canadas national heritage.22 The various government initiatives
have promoted the goal of responsible stewardship of the region or advocated
measures for the responsible stewardship of the region.
17 (1979): 120 and Donat Pharand, La protection du milieu marin: Le cas spcial de
lArctique [The protection of the marine environment: the special case of the Arctic]
tudes internationales [International studies], 2 (1980): 441.
16 The adoption of this provision also contributed to the development of a parallel rule
of customary international law, as Canada effectively recognised when in 1985, it
rescinded the reservation to its acceptance of the compulsory jurisdiction of the ICJ
nine years before the LOSC came into force, and a full eighteen years before Canada
ratified the treaty. See International Court of Justice Yearbook, 40 (198586): 64.
17 Chapter 10A Northern Dimension for Canadas Foreign Policy, in Independence and
Internationalism: Report of the Special Committee of the Senate and of the House of Commons on Canadas International Relations (Ottawa: Canadian Publishing Centre, 1986),
12735, Canadian Arctic Resources Committee, http://www.carc.org/pubs/v14no4/6
.htm.
18 The Territorial Sea Geographical Coordinates (Area 7) Order, S.O.R./85872, enacted
pursuant to the Territorial Sea and Fishing Zones Act, R.S.C. 1970, c.T-7, as amended.
19 Canada Parliament, House of Commons, Debates, 33rd Parliament, 1st Session, volume
V (1985), September 10, 1985 (Ottawa, 1985), 6463 [emphasis added].
20Northern Strategy, Ocean Act S.C. 1996, c. 31.
21 Environmental Protection Act S.C. 1999, c. 33.
22Government of Canada, Canadas Northern StrategyOur North, Our Heritage, Our
Future (Ottawa: Minister of Public Works and Government Services, 2009), preamble.
580
suzanne lalonde
It is with this longstanding Canadian commitment to the Arctic as a backdrop that claims in regard to the protection Article 234 affords Canada, even if
the Northwest Passage were to be recognised as an international strait, must be
assessed.
It must certainly be acknowledged that in the context of a multilateral and
multifaceted negotiation, in which different positions were to be traded off or
compromised, Article 234 (the Arctic exception) was an important concession
made to Canada and an important innovation in the defence of the polar marine
environment. However, though it may have been a major policy success for Canada and something of an environmental breakthrough in the 1970s, it is not sufficient today to effectively protect the Canadian Arctic environment and its local
inhabitants from the multiple effects of increased human activity in the region.
A central weakness with the protection afforded by Article 234 is that it is yet
unclear how narrowly or expansively the provision should or will be interpreted.
This decades old issue was recently revived with the Government of Canadas
decision to enact mandatory vessel registration under the Northern Canada Vessel
Traffic Services Zone Regulations NORDREG, the Canadian Coast Guards Arctic
traffic system. A joint submission by the United States and the International Association of Independent Tanker Owners INTERTANKO before the IMOs Maritime
Safety Committee (MSC) in September 2010 cast doubt on the validity of the
Canadian measure under international law, notwithstanding Article 234:
On 1 July 2010, the Northern Canada Vessel Traffic Services Zone Regulations entered
into effect. The regulations require certain foreign-flagged ships to register with and
report to the Canadian Coast Guard if entering into and while transiting through
Canadian-claimed Arctic waters. The regulations require clearance before entering
into the claimed territorial sea and exclusive economic zone. Failure to comply with
the regulations could result in criminal enforcement action and the imposition of
a severe fine. At NAV 56, concerns were expressed that the provisions on mandatory ship reporting and regulation of transiting vessels raised some critical issues with
respect to consistency with international law...
If compliance is intended to be mandatory, it exceeds the coastal States authority
in SOLAS regulation V/12.3; if it is intended to be merely voluntary, it contains provisions that in the English text are inconsistent with that intention. In areas outside
the territorial sea of a coastal State, the Organization is recognized as the only international body for developing guidelines, criteria and regulations on an international
level for ships routeing.23
23Safety of NavigationNorthern Canada Vessel Traffic Services Zone Regulations, Submitted by the United States and INTERTANKO, IMO Doc. MSC 88/11/20, 21 September
2010, emphasis added, http://www.amtcc.com/imosite/meetings/IMOMeeting2010/
MSC88/MSC_88-11-2.pdf. It should be noted that earlier in the summer of 2010, at
the 56th meeting of the IMO sub-committee on Safety and Navigation, the United
States and the Baltic and International Maritime Council (BIMCO) had already raised
questions about the legal validity of Canadas mandatory NORDREG vessel reporting
system. McDorman indicates that the United States is reported to have declared: The
evaluating canadas position on the northwest passage
581
Canadian authorities responded with their own submission to the MSC and
explicitly invoked Article 234 as a legal justification for Canadas mandatory
vessel registration system.
Article 234 of UNCLOS provides for the right of coastal States to adopt and enforce
non-discriminatory laws and regulations for the prevention, reduction and control of
marine pollution from vessels in ice-covered areas within the limits of the Exclusive
Economic Zone (EEZ). Article 234 permits States to enact these laws and regulations
without seeking prior IMO approval. Accompanying the right to enact such laws is a
general obligation under Article 192 to protect and preserve the marine environment.24
Such diverging interpretations of the scope of Article 234 are not, however, a
new phenomenon. In an article included in the 1987 volume edited by Griffiths,
Politics of the Northwest Passage, McRae asked [w]ill the United States accept
that Canadas Arctic waters legislation is a valid exercise of the jurisdiction permitted under Article 234?25 In his view, there were indications that the U.S.
position on Article 234 is ambiguous. In support of this conclusion, he pointed
to a paper presented by Colson at the 1984 Annual Law of the Sea Institute Conference in San Francisco which seemed to suggest that the Canadian claim to
jurisdiction over Arctic waters under the Arctic Waters Pollution Prevention Act
goes beyond the extent of acceptable coastal State jurisdiction over such waters.26
Yet at another important meeting held the same year, the Canada-United States
Arctic Policy Forum in Banff, Westermeyer had suggested that Article 234 lent
legitimacy to the Canadian legislation.27 This particular issue seems however
to have been conclusively settled in 1994, when President Clinton declared
that the primary purpose of Article 234 was to provide the basis for implementing
the provisions applicable to commercial and private vessels found in the 1970
Canadian Arctic Waters Pollution Prevention Act...28 But while the United
United States [does] not believe that the new Canadian northern zone regulations [are]
consistent with key law of the sea principles related to freedom of navigation, including
the right of innocent passage and the right of transit passage through straits used for
navigation. Ted L. McDorman, National Measures for the Safety of Navigation in Arctic
Waters: NORDREG, Article 234 and Canada, Ocean Development and International Law,
forthcoming (2012).
24Canada, Comments on Document MSC 88/11/2, IMO Doc. MSC/88/11/3, 5 October
2010, paragraph 5.
25McRae, The Negotiation of Article 234, 112.
26David A. Colson, Political and Boundary Issues Affecting Arctic Energy Resources,
paper delivered at the 18th Annual Law of the Sea Institute Conference, San Francisco,
September 26, 1984, cited by McRae, The Negotiation of Article 234, 11213.
27William E. Westermeyer, Jurisdiction and Management of Arctic Marine Transportation, paper delivered at Canada-United States Arctic Policy Forum, Banff, October
1984, cited by McRae, The Negotiation of Article 234, 11213.
28U.S. President Clinton, Message from the President of the United States transmitting
United Nations Convention on the Law of the Sea, with Annexes, done at Montego Bay,
December 10, 1982 (the Convention) and the Agreement Relating to the Implementation
582
suzanne lalonde
States government may be officially on record as recognising the link between
Article 234 and Canadas AWPPA, recent discussions within the IMOs maritime
safety committee highlight the difficulty in identifying the type of measures considered to be within the ambit of the Canadian AWPPA and thus also within the
scope of Article 234.
At the heart of this debate is the reference in Article 234 to marine pollution
from vessels as the sole issue which can be targeted by the non-discriminatory
laws and regulations of the coastal States in ice-covered areas.29 As discussed
above, it would appear that the United States is not prepared to accept that
mandatory vessel reporting systems are captured by the phrase. In addition, it
is unclear whether the specific reference within Article 234 to marine pollution
from vessels will allow Canada to respond to the environmental threat posed by
the very passage of ships through the ice, irrespective of any deposit of oil or other
substances. The effective prevention of this type of harm may well necessitate
stringent limitations on the frequency of transits or even the complete prohibition of passage through specific areas during certain critical periods of the year.30
Since Article 234 requires that the coastal State have due regard for navigation,
McRae and Goundreys conclusion seems unassailable: a prohibition of shipping
or a drastic limitation on its frequency would be beyond the jurisdiction31 of
Canada if the Northwest Passage was considered an international strait and Article 234 was it sole source of authority.32
The IMOs Particularly Sensitive Sea Areas
The Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (Revised Guidelines) adopted by the IMO in 2005 acknowledge that
with the increase in global trade and shipping activities, there is greater potential
of Part XI of the United Nations Convention on the Law of the Sea of 10 December
1982, adopted at New York, 28 July 1994 (the Agreement) and signed by the United
States, subject to ratification, on 29 July 1994, U.S. Senate, Treaty Document 39, 103d
Congress, 2d Session IV (1994), at 40, reproduced in McDorman, National Measures
for the Safety of Navigation.
29Article 234 grants coastal States the right to adopt and enforce non-discriminatory
laws and regulations for the prevention, reduction and control of marine pollution
from vessels in ice-covered areas...
30McRae and Goundrey, Environmental Jurisdiction in Arctic Waters, 224.
31 Ibid.
32Bartenstein provides a detailed analysis of the due regard clause in Article 234 and
argues that it refers to the reasonableness of the coastal States measures with respect
to the needs of international navigation. Kristin Bartenstein, The Arctic Exception
in the Law of the Sea Convention: A Contribution to Safer Navigation? Ocean Development and International Law, 42 (2011): 41.
evaluating canadas position on the northwest passage
583
for adverse effects and damage to the marine environment.33 According to Bateman, the Revised Guidelines are far more detailed and liberal in their approach
than UNCLOS Article 211(6) reflecting the more sophisticated and comprehensive
scientific understanding of the dangers posed by ships to the marine environment
than was the case when UNCLOS was negotiated.34 In assessing the potential
value of such a PSSA designation for the Northwest Passage, the recent Australian example in regards to the Torres Strait is highly relevant. In paragraph 1.2 of
the Revised Guidelines, a PSSA is defined as:
an area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such
attributes may be vulnerable to damage by international shipping activities.35
As a necessary step in the PSSA process, the Revised Guidelines require the adoption by the IMO of associated protective measures (APMs):
At the time of designation of a PSSA, an associated protective measure, which meets
the requirements of the appropriate legal instrument establishing such measure,
must have been approved or adopted by [the] IMO to prevent, reduce or eliminate
the threat or identified vulnerability.36
In November 1990, the IMOs Marine Environment Protection Committee (MEPC)
adopted two resolutions in respect to Australias Great Barrier Reef (GBR): the
first identified the GBR as a PSSA37 and the second recommended compliance
with Australias system of pilotage in the area.38 On the basis of these resolutions,
Australia amended its Great Barrier Reef Marine Park Act of 1975 and designated
two areas within the GBR subject to compulsory pilotage. A decade later, in 2003,
Australia and Papua New Guinea proposed to the IMO that the GBR PSSA be
33Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea
Areas, adopted by IMO Assembly Resolution A.982(24), 1 December 2005 (Revised
Guidelines), http://www.gc.noaa.gov/documents/982-1.pdf.
34Sam Bateman, Coastal State Regulation of Navigation in Adjacent WatersThe Example of the Torres Strait and Great Barrier Reef, http://www.gmat.unsw.edu.au/ablos/
ABLOS10Folder/S1P1A.pdf. Bateman cites the following document in support of his
conclusion: West European Particularly Sensitive Sea Area (PSSA)Comments made by
the Division for Ocean Affairs and the Law of the Sea of the United Nations (DOALAS) in
connection with issues raised in document LEG 87/16/1, IMO Doc. LEG 87/16/1, Annex 7
(23 October 2003).
35Ibid.
36Paragraph 1.2 of the Revised Guidelines.
37Report of the Marine Environment Protection Committee on Its Thirtieth Session,
8 January 1991, MEPC 30/24, Annex 17.
38The MEPC recommends that Governments recognize the need for effective protection
of the Great Barrier Reef region and inform ships flying their flag that they should act
in accordance with Australias system of pilotage. Protection of the Great Barrier Reef
Region, Resolution MEPC.45(30) in MEPC 30/24, Annex 18.
584
suzanne lalonde
extended to the Torres Strait and that the compulsory pilotage system in the GBR
be extended to the Torres Strait as an associated protective measure.
The MEPC did eventually adopt, on 22 July 2005, a resolution that designated
the Torres Strait as an extension of the GBR PSSA. The resolution provided in
part that the MEPC:
1. Designates the Torres Strait...as an extension of the [GBR] Particularly Sensitive
Sea Area;...
3.Recommends that Governments recognize the need for effective protection of the
Great Barrier Reef and Torres Strait region and inform ships flying their flag that
they should act in accordance with Australias system of pilotage for merchant ships
70 m in length and over or oil tankers, chemical tankers, and gas carriers, irrespective of size when navigating:...
(b)the Torres Strait and the Great North East Channel...39
The resolution also noted that the MEPC was aware of the ecological, social, economic, cultural, scientific and educational value of the Torres Strait, as well as its
vulnerability to damage by shipping traffic and activities in the area and the steps
taken by Australia and Papua New Guinea to address that vulnerability.
During the final debates which preceded the adoption in July of Resolution
MEPC 33(53), the American delegation made the following statement clarifying
its position on the legal effect of the Resolution:
[I]t must be recognized that this resolution was recommendatory and provided no
international legal basis for mandatory pilotage for ships in transit in this or any
other strait used for international navigation. The United States could not support
the resolution if this Committee took a contrary view. Should the Committee adopt
this resolution, the United States would implement its recommendations in a manner consistent with international law and the right of transit passage...40
A number of other delegations supported the statement made by the United
States while Australia indicated that it did not object to the statement by the
United States.41
39Designation of the Torres Strait as an Extension of the Great Barrier Reef Particularly Sensitive Sea Area, IMO Resolution MEPC.133(53), MEPC, 53rd Session, adopted
on 22 July 2005, IMO Doc. MEPC 53/24/Add.2, Annex 21 (hereinafter Resolution
MEPC.133(53)). Emphasis added, http://www.amsa.gov.au/marine_environment_
protection/torres_strait/13353.pdf .
40Report of the Marine Environment Protection Committee on Its Fifty-third Session,
MEPC 53rd Session, 25 July 2005, IMO Doc. MEPC 53/24, paragraph 8.5, quoted in Robert Beckman, PSSAs and Transit PassageAustralias Pilotage System in the Torres
Strait Challenges the IMO and UNCLOS, Ocean Development and International Law,
38/4 (2007): 335336.
41 Report of the Marine Environment Protection Committee on Its Fifty-third Session,
MEPC 53rd Session, 25 July 2005, IMO Doc. MEPC 53/24, paragraph 8.6, quoted in
ibid., 336.
evaluating canadas position on the northwest passage
585
On 6 October 2006, Australia introduced a regime of compulsory pilotage
for the Torres Strait as an associated protective measure within the designated
PSSA. The measure, introduced by Australian Marine Notice 8/2006 and associated Marine Orders Part 54, was formally and strongly protested by the United
States and Singapore.42
Bateman and White provide a brief account of the competing views in regards
to the legality of the Australian measure:
The background against which the MEPC resolution was passed included that the
Australian system of pilotage in the Great Barrier Reef already included compulsory
pilotage for certain areas. It is acknowledged that the wording of the resolution was
much debated and its final wording was carefully chosen so delegates would support
it. However, it may reasonably be advanced that, when the resolution recommended
that governments inform their flagged ships that they should act in accordance with
Australias system of pilotage, this inferentially could include some compulsory
pilotage as it was then part of the system.
The argument against the Australian position on this point is that the MEPC resolution does not clearly and expressly authorize compulsory pilotage for the Torres
Strait. This is true and carries some weight. The argument on the other side, however,
is that the resolution does not prohibit compulsory pilotage and it was inferentially
open if Australia so chose to include it.43
White has observed that a system of voluntary pilotage has existed through the
Torres Strait and the Great Barrier Reef since the 1884 Queensland Governmental Regulations and that this system provided an invaluable service for over
100 years.44 This arrangement was formalised in 1987 with the adoption of an
IMO resolution promoting voluntary pilotage in the Strait and subsequently
extended in 1991 to include certain classes of vessels passing through the Torres
Strait and Great North East Channel. As Bateman and White report, while these
voluntary regimes were initially reasonably successful, non-compliance increased
significantly over time:
42Marine Notice 8/2006, Revised Pilotage Requirements for Torres Strait, Australian
Maritime Safety Authority, 16 May 2006 and Marine Notice 16/2006, Further Information on Revised Pilotage Requirements for Torres Strait, Australian Maritime
Safety Authority, 3 October 2006, http://www.amsa. gov.au/Shipping_Safety/Marine_
Notices/2006/. The regulations establishing the new compulsory pilotage system in the
Torres Strait were specified in Marine Orders Part 54: Coastal Pilotage, Issue 4 (Order
No. 10 of 2006), issued by the Australian Maritime and Safety Authority on 1 August
2006 to come into operation on 6 October 2006.
43Sam Bateman and Michael White, Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment, Ocean Development and
International Law, 40 (2009): 19697.
44Michael White, Navigational Rights in Sensitive Marine Environment: The Great Barrier Reef, in Don Rothwell and Sam Bateman (eds.), Navigational Rights and Freedoms
and the New Law of the Sea (The Hague: Kluwer, 2000), 251.
586
suzanne lalonde
Data from 1995 and 2001 shows that while 70% of vessels on eastbound voyages were
taking a pilot in 1995, this figure had fallen to 32% by 2001. Similar figures for westbound voyages were 55% and 38.5%. These figures equate to about 500 un-piloted
transits each year.45
Another set of figures showed that between 1985 and 2003, there were 12 collisions in the Torres Strait between unpiloted trading vessels and fishing vessels
caused, in most instances, by a failure to keep a proper lookout on both vessels.46
According to the two experts, independent research,
undertaken on behalf of Australia by representatives of the U.S. and Canadian coast
guards found that compulsory pilotage in the Torres Strait could reduce the risk of
groundings by between 45 per cent and 57 per cent and of collisions by between
57% and 67%, depending on the specific location within the strait. Another analysis
by Det Norske Veritas in 2001 indicated that compulsory pilotage could reduce the
risks by 35%.47
However, in recognition of the importance of the Torres Strait for international
shipping, the Australian government took pains to craft a pilotage regime that
did not deny, hamper or impair transit passage. The highlights of the Australian
system are summarised by Bateman and White:
Pilotage is compulsory only for vessels over 70 meters and all oil, chemical and liquefied gas carriers. The regime recognizes the principle of sovereign immunity by
exempting warships and government vessels not employed on commercial service
and provides a pilotage exemption for commercial vessels with bridge teams that
meet the necessary requirements of skill and experience. The Marine Notices issued
by Australia expressly advise that it is a legal defense if a pilot cannot be carried
because of stress or weather, saving life at sea, or other unavoidable cause...An
important aspect of the pilotage scheme is that no attempt will be made to physically enforce the compulsory pilotage regime by denying passage.48
What lessons then can be gleaned from the Australian experience in regards to
compulsory pilotage in the Torres Strait? In an area of ecological vulnerability
extremely hazardous to navigate, home to an indigenous people closely connected
to the marine environment and with documented threats, including a number
of collisions, the Australian government turned to the competent international
organisation which recognised that the Torres Strait was an area that need[ed]
special protection. However, when Australia adopted compulsory pilotage as an
associated protective measure, its scheme was the object of strident protests
despite recommendations by neutral organizations which identified such a measure as an effective solution for the preservation of the marine environment and
45Bateman and White, Compulsory Pilotage in the Torres Strait, 191 (footnotes omitted).
46Ibid., 187.
47Ibid.
48Ibid., 18788.
evaluating canadas position on the northwest passage
587
the safety of navigation, and despite having taken all possible care to craft a
scheme which interfered as little as possible with international navigation.
Even if it must be acknowledged that Resolution MEPC 133(53) would never
have been adopted by the MEPC in July of 2005 if Australia had made its intentions in regards to compulsory pilotage clear, the central question remains: Why
was Australia and Papua New Guineas reasonable proposal so adamantly opposed
by various members of the IMO and Australias eventual pilotage scheme so vehemently denounced? Legal considerations do not appear to have been the primary
obstacle. Rather, what the Torres Strait IMO saga reveals is that for many countries, particularly maritime powers like the United States, international straits
are somehow sacrosanct and the right of transit is an absolute which will always
trump other values, whether environmental or cultural.
Douglas Johnston, one of Canadas great legal minds, wrote in 2006 that
the LOSC had to be treated as a living constitution open to re-interpretation,
development and revision in accordance with important changes in the mores
of international society.49 For his part, Bateman emphasises that the LOSC was
formulated in a period when there was less concern for the health of the marine
environment than there is at present and modern international environmental
law was underdeveloped.50 In support of his conclusion, Bateman lists examples
where increased concern for protecting the marine environment has impacted on
the law of the sea, including the freedom of navigation.
OPA90 introduced in the United States following the Exxon Valdez disaster introduces several restrictions on the freedoms of navigation in the exclusive economic
zone (EEZ), including the requirement for double hulls for all new tankers and
ocean-going barges. Both Indonesia and Singapore backed Malaysias insistence that
Japanese plutonium shipments should not be routed through the Malacca Strait for
fear of the environmental risks involved.51
Conclusion
Notwithstanding these persuasive arguments and telling examples, the reaction in
some quarters to Australias Torres Strait scheme must be a red flag for Canada
in regards to the Northwest Passage. Back in 1987, McRae asked a simple question: If the protection of the Arctic marine environment is the desired end, what
is the most effective method of achieving that end?52 Today, the question would
be broadened to include the protection of the cultural identity of the indigenous
49Douglas M. Johnston, The Challenge of International Ocean Governance: Institutional,
Ethical and Conceptual Dilemmas, in Donald R. Rothwell and David L. VanderZwaag,
Towards Principled Ocean Governance (London: Routledge, 2006), 379.
50Bateman, Coastal State Regulation of Navigation.
51 Ibid.
52McRae, The Negotiation of Article 234, 113.
588
suzanne lalonde
peoples of the North. His answer seems still very much propos in concluding
this review of the potential protection afforded the Northwest Passage by Article
234 of the LOSC and an IMO PSSA designation:
If the narrow interpretation of Article 234 is adopted by the international community
and Arctic coastal states find as a result that their ability to control marine pollution
of the Arctic environment is thereby curtailed, or if the obligation to have due regard
for navigation itself imposes a severe limitation on the ability of Arctic coastal states
to protect their environment, the only remaining option will be further unilateral
action by Arctic coastal states...53
53McRae and Goundrey, Environmental Jurisdiction in Arctic Waters, 228.
chapter Twenty-six
The Practicalities of the Ecosystem Approach
in the Barents Sea: The ECOBAR project
Tavis Potts, Branka Valcic, JoLynn Carroll and Michael Carroll*
Introduction
The Barents Sea and Lofoten Islands cover an area of approximately 1.4 million
km2 and connect the Norwegian Sea to the west, the Arctic Ocean to the north,
and the east the coast of Novaya Zemlya (see Figure 26.1). Its shelf sea bathymetry is characterised by troughs and basins separated by shallow bank areas with
depths ranging from 100200m. Commercially the region is important to both to
national and regional economies of Norway and Russia, but also plays a significant role in a global context in the provision of fisheries resources and mineral
exploitation. In terms of oil and gas development it is a developing region in
terms of exploitation but considerable exploration is occurring with recent commercial discoveries. Regional shipping is growing both through increasing tourism, particularly to Svalbard, logistics based around regional resource extraction
from locales such as Greenland, and trans-Arctic passages through the Northern
Sea Route.
In parallel to its economic potential, the Barents Sea supports a productive
marine ecosystem of significance for the wider Arctic with a rich benthic fauna
including coral reefs and sponge communities coupled closely with a pelagic
marine ecosystem including fisheries and marine mammals. The inflow of relatively
warm Atlantic water keeps large parts of the Barents Sea region ice free for the
entire year and supports high biological productivity.
*Dr Tavis Potts is a Senior Lecturer in Oceans Governance at the Scottish Association
for Marine Science. Dr. Branka Valcic is a former Lecturer at the Scottish Association
for Marine Science and is now an independent researcher based in Croatia. Professor
JoLynn Carroll is Assistant Director of Akvaplan-niva, a leading organisation in Norways High North Research Centre for Climate and the Environment (Fram Center). Dr.
Michael Carroll, is a Senior Researcher at Akvaplan-niva in Troms, Norway.
590
tavis potts et al.
For fisheries it supports major harvesting activities, particularly for cod, haddock and capelin and is the mainstay of major fishing effort and investment by
coastal communities from Norway and Russia. The marginal ice edge zone to the
north, concentrated around Svalbard, is a highly productive ecosystem. When
the ice melts in summer it creates the conditions for the production of phytoplankton. Much of this production sinks to the sea floor and influences the benthic ecology and is a food source for fish such as capelin and cod, while further
up the food chain with species such as seabirds and marine mammals benefit
from this ice edge productivity. In the Barents Sea region, several species such
as capelin migrate back to the coast to spawn, where they transport part of the
biological production back to coastal ecosystems.
In the context of emerging changes in the Barents, the Benthic Indicators for
Monitoring the Ecosystem of the Barents Sea (the ECOBAR Project) explored
developing an ecosystem approach in the Barents Sea, particularly in relation
to capturing the economic and political pressures on marine benthic habitats.
It developed an innovative methodology to explore these interactions which is
detailed in the discussion below.
The Ecosystem Approach in the Barents Sea
In the Barents Sea, and across the broader Arctic, there is increasing concern
from policy makers and the public over the health of the marine environment
in light of resource extraction and the impacts of climate change. In this context the success criteria of long term marine policy include the implementation
of integrated planning and management amongst maritime industries to reduce
conflict; conservation of important and representative habitats and species to
maintain ecosystem resilience; engagement of relevant actors and sectors; and
adaptive managementnow understood as the ecosystem approach to management. A recent European (FP7) research project, KnowSeas, has published guidance on implementation of the ecosystem approach and as defined it as:
A resource planning and management approach that integrates the connections
between land, air, and water and all living things, including people, their activities
and institutions.1
While the term ecosystem approach remains elusive to encapsulate in practice,
the principles behind the approachthrough several iterations via institutions
1Andrew Farmer, Laurence Mee, Olivia Langmead, Philip Cooper, Andreas Kannen, Peter
Kershaw, Victoria Cherrier, The Ecosystem Approach in Marine Management (2012, EU
FP7 KnowSeas Project), 4.
the practicalities of the ecosystem approach in the barents sea
591
Reproduced with permission from: UNEP/GRID-Arendal, Barents Region, topography and
bathymetry, UNEP/GRID-Arendal Maps and Graphics Library, 1998. Cartographer: Philippe
Rekacewicz. Data source: NOAA, 1988. Data Announcement 88-MGG-02, Digital relief of
the surface of the Earth. NOAA, National Geophysical Data Center, Boulder, Colorado.
Figure 26.1The Barents Sea and Regional Bathymetry.
such as the Convention on Biological Diversity2are emerging in public practice. Such principles behind the ecosystem approach include understanding the
dynamic multi-scalar relationship between human systems and natural ecological systems, improving the data available to inform decisions, and building consensus amongst actors. This requires improved understanding of how coastal and
marine social-ecological systems operate, how they generate services for societal
benefit, how degradation can affect ecosystem services and human welfare.3 Uncertainty pervades this process and an adaptive management process is a focus of
2Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993, 31 (1992) ILM 818 (CBD).
3Op. cit. note 1.
592
tavis potts et al.
the ecosystem approach, where management is seen as an experimental and iterative and goals are adapted based on increasing knowledge about the system.4
The Norwegian Government began steps towards an ecosystem approach in
2006 with the release of a plan for Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands (the IMP).5
The IMP covers an enormous area of 1.4 million square kilometres but does not
cover that part of the Barents Sea that exists in the Russian sector across the now
agreed Norwegian-Russian maritime boundary,6 an element that could be viewed
as undermining an ecosystem approach. The IMP signalled that with increasing
commercial activity in the Barents Sea conflict could arise amongst maritime sectors and that the stability and productivity of the marine ecosystem could be at
threat from a range of activities and environmental impacts. Therefore, the key
purpose behind the strategy was outlined as finding a balance between the various sectors in the Barents Sea and Lofton Sea areas including fisheries, maritime
transport and petroleum industries within the context of sustainable development. The IMP states its overall objective as:
A framework for the sustainable use of natural resources and goods derived from the
Barents SeaLofoten area and at the same time maintain the structure functioning
and productivity of the ecosystems of the area.7
A strong theme within the IMP is that scientific knowledge of the marine environment in the Barents Sea is limited, and that further effort is needed to understand the impacts of commercial activity on habitats. Importantly, as commercial
activity develops and the region undergoes changes driven by climate shifts, it is
important to develop adaptive approaches to monitoring the benthic environment and identifying what measures are responsive to socio-economic contexts.
There is a challenge to improve basic system knowledge about the extent and
quality of benthic habitats, understand the dynamics of the economic changes,
and link the two via developing guidance for a future monitoring system that is
responsive to drivers of change under different scenarios.
4Laurence Mee, Assessment and Monitoring requirements for the adaptive management of Europes regional seas in Jan Vermaat, Laurens Bowers, Kerry Turner, and W.
Salomons (eds.), Managing European Coasts: past, present and future, (Berlin: Springer,
2005), 227237.
5Norwegian Government. Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands, Report No. 8 to the Storting, (Oslo,
2006).
6Erik Olsen, Harald Gjster, Ingolf Rttingen, Are Dommasnes, Petter Fossum, and Per
Sandberg, The Norwegian Ecosystem Based Management Plan for the Barents Sea,
ICES Journal of Marine Science, 64 (2007): 599602.
7Op. cit. note 5.
the practicalities of the ecosystem approach in the barents sea
593
The ECOBAR Project
It is within this context that the Benthic Indicators for Monitoring the Ecosystem
of the Barents Sea (the ECOBAR Project) explored developing tools to support
an ecosystem approach in the Barents Sea. Arctic ecosystems are in many contexts considered at risk from increased human activities because of the limited
knowledge on Arctic resources and biology. The benthos is perhaps the best habitat for assessing impacts of most human activities in the marine environment,
and has been a key component of aquatic monitoring programs. Since benthic
fauna are associated with the seafloor, their patterns reflect variability in the
physical environment and response to human impacts in an area. Communities can be resampled over time since most benthic animals do not move long
distances and can be used as indicators for contaminant levels and long term
responses to pressures such as climate.
Arctic pelagic food webs are tightly coupled to the benthos.8 In the Barents
Sea, approximately 80 per cent of the primary production is channelled through
bottom water communities.9 Indicators will need to separate impacts from local
human activities from those related to a changing climate and incorporate policies and practices for resource extraction. These facts must also be considered as
part of an evaluation of appropriate indicators. The objectives of the project are:
Develop a common set of benthic indicator species and reference levels for
contaminant levels and biomarker effects of Barents Sea benthic organisms.
Recommend indicators, and identify their strengths and limitations for application to benthic monitoring in the Barents Sea.
Evaluate traditional and novel biodiversity indicators for application in the
Barents Sea based on existing and new data sets on environmental and faunal
characteristics.
Assess the applicability of the chosen indicators today and in the future based
on climate change and economic development scenarios for the Barents Sea
during the next 30 years.
8Dieter Piepenburg, William Ambrose, Angelika Brandt, Paul Renaud, Michael Ahrens,
Preben Jensen, Benthic community patterns reflect water column processes in the
Northeast Water polynya (Greenland), Journal of Marine Systems, 10 (1997): 467482.
9Paul Wassmann, J. Carroll, Richard Bellerby, Carbon flux and ecosystem feed back
in the northern Barents Sea in an era of climate change: an introduction, Deep-Sea
Research Part II: Topical Studies in Oceanography, 55 (2008): 2,1432,153.
594
tavis potts et al.
Improving the Management of the Barents Sea Benthic Environment
The IMP is predominantly high level and provides detailed descriptions of ecosystem; current knowledge and knowledge gaps; drivers, pressures, and trends; and
actions to improve integrated management and conserve ecosystem integrity.10
The IMP articulates policy direction for integrating maritime sectors including
fisheries, shipping, and the hydrocarbon industry within the limits of a healthy
marine ecosystem. A series of high level objectives were developed for the IMP.
These include (a) the management of the Barents SeaLofoten area will promote
sustainable use of the area and its resources to the benefit of the region and the
country; (b) the management regime will ensure that activities in the area do
not threaten the natural resource base; (c) the management regime will facilitate
economically viable commercial activities and as far as possible promote value
creation and employment; and (d) management of commercial activities in the
area will be coordinated to ensure that industries can co-exist and within environmental constraints.11
While the IMP acknowledges the improving scientific knowledge of the Barents
Sea, particularly in regard to commercial fishing stocks, it identifies that knowledge is limited on the status of benthic habitats. One of the goals is to ensure
that activities in sensitive areas are conducted in a way that does not threaten
biodiversity in these areas. This requires development of monitoring systems and
research into how benthic systems may be damaged from various activities
and how they respond under changing scenarios. In particular the knowledge
of combined impacts of different pressures (that is, from different sectors such
as oil exploration, fishing and shipping) and the impact on benthic biodiversity
is unknown.12 Sectors such as fishing continue to impact seafloor habitats, for
example fishing was found in the initial IMP document to have impacted 3050
per cent of discovered coral reefs. The impacts on other benthic habitats, for
example sponge communities from activities such as trawling are still relatively
unknown.
Climate Change in the Barents Sea
Climate change has had major impacts on the Arctic region, most dramatically
exemplified by the severe downward trend in the regions ice cover evident in
10Maiike Knoll, Scientific advice in integrated ocean management: The process towards
the Barents Sea plan, Marine Policy, 34 (2010): 252260.
11Norwegian Government. Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands, 93.
12Norwegian Government. Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands, 78.
the practicalities of the ecosystem approach in the barents sea
595
recent summers. Because the Arctic is warming about three times faster than the
global rate,13 Arctic ecosystems are likely to encounter regime shifts with major
changes to biodiversity.14 The Barents Sea is responsive to regime shifts associated with climate change15 and it is expected that the Barents Sea region may
experience some of the largest temperature increases.
Models are predicting a decline in Arctic sea-ice over the next few decades16
but recent decrease in sea ice extent have largely deviated from predictions. Particularly striking was the acceleration of Arctic sea ice loss in 200717 and the
record decline in 2012.18 Changes in the sea-ice cover of the Arctic Ocean are
expected to influence the regional climate in the Barents Sea driving modifications in marine ecosystems.19 For example, the loss of sea ice represents a change
in the amount of light affecting primary production20 and a loss of habitat for
ice-related species and major changes in the species composition.
Since 1967, there has been a decrease in sea-ice extent in the northern Barents Sea of an average of 3.5 per cent per decade.21 Ecosystem changes in the
Barents Sea, which are associated with warm sea temperature, include the northward movement of fish, a northward spread of benthos associated with the Atlantic waters, and an increase in the cod growth rates.22 Current models predict
increases in fish productivity in the Barents Sea,23 especially of cod and herring.24
13 Harald Loeng, Keith Brander, Eddy Carmack, Stanislav Denisenko, Ken Drinkwater,
Bogi Hansen, Kit Kovacs, Pat Livingston, Fiona McLaughlin, Egil Sakshaug, Marine
systems in Susan Joy Hassol, Arctic Climate Impact Assessment (Cambridge MA: Cambridge University Press, 2005), 45153.
14 Marten Scheffer, Steve Carpenter, Jonathan A. Foley, Carle Folke, Brian Walker, Catastrophic shifts in ecosystems, Nature, 413 (2001): 591596.
15Ibid.
16James E. Overland, Muyin Wang, Future regional Arctic ice declines, Geophysical
Research Letters, 34 (2007): L17705.
17Josefino C. Comiso, Clare L. Parkinson, Robert Gersten, Larry Stock, Accelerated
decline in the Arctic sea ice cover, Geophysical Research Letters, 35 (2008): L01703.
18National Snow and Ice Data Centre, Arctic Sea Ice Settles at Record Seasonal Minimum
September 19th 2012. Available from: http://nsidc.org/arcticseaicenews/2012/09/.
19Ibid.
20R. Gradinger, Climate change and biological oceanography of the Arctic Ocean, Philosophic Transactions of the Royal Society London A, 352 (1995): 277286.
21 Asgeir Sorteberg, Borge Kvingedal, Atmospheric forcing on Barents Sea ice, Journal of
Climate, 19 (2006): 4,7724,784.
22Drinkwater, The influence of climate variability.
23Erling Kore Stenevik, Svein Sundby, Impacts of climate change on commercial fish
stocks in Norwegian waters, Marine Policy, 31(2007): 1931.
24Einar Svendsen, Morten Skogen, Paul Budgell, Geir Huse, Bjorn Aadlandsvik, Frode
Vikeb, Jan Erik Stiansen, Lars Asplin, Svein Sundby, An ecosystem modelling approach
to predicting cod recruitment, Deep-Sea Research II, 54 (2007): 2,8102,821.
596
tavis potts et al.
Distributions of Barents Sea cod and herring, as well as distribution of their major
prey species, capelin, are expected to expand northward and eastward.25
Trends in Maritime Activity in the Barents Sea
Maritime activities in the Barents Sea are expanding. Driven in part by environmental changes, technological innovation, and resource markets they offer a
challenge for integrated management. The dominant industry in the Barents Sea
is fishing with economically important grounds off the Norwegian coast and central Barents Sea. The target stocks include cod, haddock, halibut, capelin, redfish
and shrimp. Cod and haddock are key commercial stocks for Norway and Russia, and under the quotas set by the Norwegian-Russian Fisheries Commission
and guided by advice from the International Council for Exploration of the Sea
(ICES). The Commission was established in 1976 and through an annual meeting
between the partners, establishes total allowable catches for stocks including cod,
haddock and capelin that are shared between the bilateral partners and third
parties.26 Illegal, unregulated and unreported (IUU) fishing has been a significant
problem in recent years in the region, but with cooperative port State controls
in the Commission and in other for a such as the North East Atlantic Fisheries
Commission (NEAFC), IUU catches have been reduced from 50 per cent to 20
per cent in the Barents Sea.27 The Norwegian Government reports that due to
collaboration with Russian partners and NEAFC that IUU fishing of cod in the
Barents Sea has been reduced by 84 per cent.28
Quotas for the main species of cod and haddock have increased in recent years.
In 2011, an unprecedented increase in quota was been agreed by the Commission
with an increase of productivity attributed to an influx of warmer Atlantic waters
and successful management of illegal fisheries. For cod, 2011 quotas were set at
703,000 tonnes, haddock was set at 303,000 tonnes and capelin for 2011 was set
25Geir Huse, Ingrid Ellingsen, Capelin migrations and climate changea modelling
analysis, Climatic Change, 87 (2008): 177198.
26Information on the Commission can be found the Norwegian Government Fisheries
Ministry website, http://www.fisheries.no/resource_management/International_coope
ration/Fisheries_collabora tion_with_Russia/.
27David J. Agnew, John Pearce, Ganipatharaju Pramod, Tom Peatman, Reg Watson, John
Beddington, Tony Pitcher, Estimating the Worldwide Extent of Illegal Fishing, PLoS
ONE, 4/2 (2009): 18.
28Norwegian Government. Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands.
the practicalities of the ecosystem approach in the barents sea
597
at 380,000 tonnes.29 In 201230 the quota allocation continued to rise with Arctic
cod set at 751,000 tonnes, an increase of 48,000 tonnes on 2011. For haddock,
2012 saw a rise of 15,000 tonnes to 318,000 tonnes while the capelin catch was
reduced by 16 per cent to 320,000 tonnes in order to preserve the spawning stock
under harvest control rules.
While fishing remains the dominant activity the oil and gas sector appears to
be gathering pace (see Figure 26.2). Up until recently exploitation was concentrated around the existing fields of Snohvit gas field and Goliat oil field in the
Norwegian sector and the Shtokman development in the Russian sector. Snohvit
extracts on a daily basis 20.8 million scm natural gas liquids and condensate that
is pumped 143km to the plant onshore in Hammerfest, Norway31 and lending
weight to the argument that the Arctic is predominantly a gas province.32
Exploration and acreage licensing, while on the rise, have yielded little return
and highlight the financial, environmental and technical challenges inherent in
development of oil and gas in the Arctic. However, recent activity indicates that
oil development will expand in the near future. On 1 April, 2011, a major discovery was made in the southern Norwegian sector of the Barents Sea. The Skrugard
prospect now renamed Johan Castberg, is 200km off the coast of Finmark and
100km north of the Snohvit field, and is believed to contain recoverable reserves
of 150 to 250 million barrels of oil equivalent with the potential for another
250 million.33 Recent appraisal drilling from Statoil, operator of the production
licence, indicates that recoverable oil reserves could be in the order of 280 million barrels (45 million standard cubic metres) in addition to 27 billion standard
cubic metres of natural gas.34 Exploration is continuing in this field to firm up
the capacity of the reserves in light of uncertainties over the extent recoverable
resource and constraints in the Norwegian tax regime.
29Ministry of Fisheries and Coastal Affairs Agreement in the Joint NorwegianRussian
Fisheries Commission on quotas for 2011, 6 October 2010, http://www.regjeringen
.no/en/dep/fkd/Press-Centre/Press-releases/2010/Agreement-in-the-Joint-Norwegian
Russian-Fisheries-Commission-on-quotas-for-2011-.html?id= 619744.
30Ministry of Fisheries and Coastal Affairs, 2012 Norwegian-Russian fishery pact agreed,
18 October, 2011 No. 95/2011, http://www.regjeringen.no/en/dep/fkd/Press-Centre/
Press-releases/2011/2012-norwegian-russian-fishery-pact-agre.html?id=660700.
31 Statoil, Snovhit, published 2007-09-10, updated 2011-03-09, http://www.statoil.com/
en/ouroperations/explorationprod/ncs/snoehvit/pages/default.aspx.
32Tavis Potts, Clive Schofield, The Arctic, The International Journal of Marine and
Coastal Law, 23/1 (2008): 151176.
33Penn Energy, Statoil makes significant oil discovery with Skrugard in the Barents
Sea, 1 April, 2011, http://www.pennenergy.com/index/petroleum/display/4547849516/
articles/pennenergy/petroleum/offshore/2011/04/statoil-makes__significant.html.
34Norwegian Petroluem Directorate, Delineation of the 7220/8-1 (Skrugard) gas/oil
discovery, 6 March 2012, http://www.npd.no/en/news/News/2012/Delineation-of-the72208-1-Skrugard-gasoil-discovery/.
598
tavis potts et al.
Regional shipping is set to expand in the Barents Sea with increasing activity in
tourism, fishing, and expansion of oil and gas exploration and development. The
Arctic Marine Shipping Assessment (AMSA) highlighted that regional shipping
was on the rise, and that it was predominantly conducted for servicing communities, tourism, and moving natural resources out of the Arctic.35 The reduction
of sea ice is attracting attention for maritime opportunities in an expanding Arctic navigational window, particularly in the summer season. The Northern Sea
Route (NSR) and North West Passage offer considerable distance savings over
traditional routes but are not without their challenges. For example, the NSR is
characterised by shallow waters from the Barents Sea through to the Bering Strait
with the average depths of the East Siberian and Chukchi seas 58 meters and 88
meters respectively.36 Shallow seas, the presence of ice and challenging weather
conditions combine to ensure that the viability of these routes is still in question
and the navigational window through the Arctic is narrow.
It is within this sobering context that Arctic marine shipping is nonetheless,
slowly increasing. Potts and Schofield37 note that in 2010 the SCF Baltica, was
the first high-tonnage tanker through the NSR departing Murmansk on 14 August
2010 and arriving in Ningbo, China on 6 September carrying a cargo of 70,000
tonnes of gas condensate. The 22-day voyage was estimated to be twice as fast
as the traditional route through the Suez Canal.38 Traffic on the route is steadily
increasing. In 2013, the recently established Northern Sea Route Administration
has received 89 applications to transit the NSR with 54 applications approved to
date.39 With an increasing number of high profile voyages occurring, it is clear
that Arctic navigation is on the rise. Even though significant challenges and navigational hazards remain, the potential for saving time and money is enough to
attract continuing interest and steady increase of applications, particularly in
the NSR.
Developing a Science into Policy Approach: The ECOBAR Project
This chapter presents the results of the fourth ECOBAR objective: Assess the
applicability of the chosen indicators today and in the future based on climate
35Arctic Council, Arctic Marine Shipping Assessment 2009 Report, April, 2009, 4.
36Ibid., 23.
37Tavis Potts and Clive Schofield Climate Change and Evolving Regional Ocean Governance in the Arctic in Harry N. Scheiber and Jin-Hyun Paik, eds., Regions, Institutions,
and Law of the Sea: Studies in Ocean Governance. (Martinus Nijhoff/Brill, 2013).
38Maritime Information Centre, SCF Baltica completes her voyage from Murmansk to
Ningbo (China), 9 September 2010, http://www.micportal.com/index.php?option=com_
content&view=article&id=4337:scf-balticacompletes-her-voyage-from-murmansk-toningbo-china&catid=21:world-ports&Itemid=32.
39Barents Sea Observer, Preparing for a record season on the Northern Sea Route,
6 June 2013, http://barentsobserver.com/en/business/2013/06/preparing-record-seasonnorthern-sea-route-06-06.
the practicalities of the ecosystem approach in the barents sea
599
change and economic development scenarios. The project analysed the science
into policy dynamics of potential benthic indicators through a participatory
process. The aim was to determine the suitability of a suite of benthic indicators to
detect changes in the Barents Sea environment under different economic, political and climate scenarios. This involved scenario development and testing policy
options to determine which changes in the marine environment were detected
by the range of biodiversity, contaminants, and ecotoxicology indicators.
Scenarios have been defined as plausible, provocative, and relevant stories
about how the future might unfold40 and also as a coherent, internally consistent, and plausible descriptions of a possible future state of the world.41 Scenario
analysis does not propose to forecast or predict what the future holds, but it offers
a way to understand what kinds of futures might occur.
Therefore, rather than viewing scenarios as hard-fact predictions of the future,
they should be viewed as contributions or tools that could be used in understanding the practicalities of ecosystem-approach in the Barents Sea. Similarly to other
scenarios exercises (for example, MEA 2005b),42 the future of the Barents Sea
might hold a mix of all four scenarios presented here or may be very different,
depending on choices made by key decision-makers and other agents of change.
The Methodological Framework
The project team evaluated whether changes in indicators could be linked to scenarios based on a range of political, economic and climate drivers (Figure 26.2).
The team modified the DPSIR (Driver Pressure State Impact Response) framework43 and identified the drivers relevant to the Barents Sea benthic environment that would change under the three differing scenarios (see Table 26.1). The
three scenarios cooperative ecosystem management, continuing trends and
fortifying the borders steer changes in the identified drivers. While the drivers
are considered generalisations that occur at the scale of the large marine ecosystem,
40Elena Bennett, Steve Carpenter, Prabhu Pingali and Monika Zurek, Summary: Comparing Alternate Futures of Ecosystem Services and Human Well-being, in Ecosystems and
Human Well Being: Volume 2: Scenarios; Findings of the Scenarios Working Group (Millennium Ecosystem Assessment Series) (Washington: Island Press, 2005), 117.
41 James McCarthy, Osvaldo Canziani, Neil Leary, David Dokken, Kasey White (eds.), Climate Change: Contribution of Working Group II to the Third Assessment Report of the
Intergovernmental Panel on Climate Change: Impacts, Adaptation and Vulnerability
(Cambridge: University of Cambridge Press, 2001), 145190.
42Elena Bennett, Steve Carpenter, Prabhu Pingali and Monika Zurek, Four Scenarios, in
Ecosystems and Human Well Being: Volume 2: Scenarios; Findings of the Scenarios Working Group, 223295.
43DPSIR framework is a useful tool to clarify interactions between human activities, ecological systems, social and economic systems, and environmental policies and mechanisms. Some recent EU projects applying this approach include ELME (2007) and
KnowSeas, www.KnowSeas.com.
600
tavis potts et al.
Figure 26.2The Methodological Frame of ECOBAR Objective 4.
they were determined to be the key mechanisms that would influence development
and resource management (positive and negative pressures) and result in impacts
upon benthic systems. These impacts would foreseeably be captured by a series of
biodiversity, contaminant, and ecotoxicology indicators and were the subject
of a science- policy focus group and peer review by scientists participating in the
project. Therefore at each stage of the framework a rescaling process was undertaken starting with scenarios, drivers, the pressures (positive and negative) imposed
by the drivers and the impacts those pressures deliver on the benthic system.
Across the scenarios, the assumptions mostly differ in the structure of international agreements, the level of cooperation between Norway and Russia, the
intensity of alternative energy production, the level of oil and gas development in
both countries and whether the Arctic summer sea ice minimum extent follows
the current trend of decline or reverts to a positive trend. All scenarios assume
continuing increase in oil price, variable gas price, and acidification of the ocean.
Assumptions within each set of drivers were divided into categories of political,
macro-economic, and climate change (see Tables 26.24 below). The former two
are associated with drivers as human activities and at a smaller scale both spatially and temporally than the climate change driver. Assumed changes in political drivers are related to regional and national activities within the structure of
international legal agreements, while changes assumed for macro-economic drivers are related to both global and regional changes in markets.
Under each scenario /driver combination the team identified how changes in
drivers may affect the benthic environment in the Barents Sea (highly significant/
moderate/no significant effect) and the vector of the change (positive/negative).
the practicalities of the ecosystem approach in the barents sea
601
Table 26.1.ECOBAR Scenarios and Drivers
Scenarios
1. Cooperative
Ecosystem
Management in the
Barents Region
2. Continuing
Trends
3. Fortifying the
Borders
Political drivers
OSPAR
International
Maritime
Organisation
Russian-Norwegian
border agreement
Barents Sea IMP
Macro-economic
drivers
Price of oil
Implementation
of renewable
energy
Climate change
drivers
Ocean acidification
Sea temperature
Using an expert approach consisting of a scientific roundtable and on peer review
process, 12 biodiversity and contaminants indicators were evaluated under each
scenario and for each key driver describing what may happen to the indicator
and whether the indicator may be effective in capturing change.
Scenario 1: Cooperative Ecosystem Management in the Barents Sea Region
Under this scenario, Arctic minimum summer sea ice extent declines more rapidly than current trends and Barents Sea warming accelerates. Under this scenario, there is a general tendency towards stronger co-operation between Russia
and Norway. As acts towards stronger cooperation, Russia joins both the Convention for the Protection of the Marine Environment of the North-East Atlantic Convention (OSPAR)44 and the International Convention for the Control and Management of Ships Ballast Water and Sediments (Ballast Water Convention)45 under
the IMO.46 Although both countries expand oil and gas development under this
scenario, they also strengthen incentives for low carbon/alternative energy. Both
countries have a mixed energy economy within good environmental standards
based on international commitments for example under the OSPAR Ecological
Quality Objectives47 and environmental monitoring program.48
44Convention for the Protection of the Marine Environment of the North-East Atlantic,
opened for signature 22 September 1992, entered into force 25 March 1998, 32 (1992)
ILM 1069.
45International Convention for the Control and Management of Ships Ballast Water and
Sediments, opened for signature 13 February 2004, not yet in force, IMO BMW/CONF/36
16 February 2004.
46See, http://www.imo.org/OurWork/Environment/BallastWaterManagement/Pages/BWM
Convention.aspx.
47The EcoQ program is referred to on the following site, http://www.noordzeeloket.nl/
ecoqos/en/.
48For reference refer to the OSPAR site, http://www.ospar.org/and link to the Assessment
and Monitoring program.
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tavis potts et al.
Table 26.2.Assumptions under the Scenarios for the Political Change Driver
Political Change
Scenario 1
Scenario 2
International agreements
Russia joins OSPAR
as in place today
Russia joins the Ballast
Current level of
Convention through
cooperation between
accession
Norway & Russia
Strong cooperation
Current incentives for
between Norway and
low carbon/alternative
Russia
energy (moderate in
Strengthened incentives
for low carbon/alternative Norway, non-existent in
energy (Norway & Russia) Russia)
Scenario 3
Unilateral approach to
environmental policy
No cooperation between
Norway & Russia
The Border Agreement
collapses because of
geopolitical disputes
Strengthened incentives
for low carbon/alternative
energy (Norway only)
Table 26.3.Assumptions under the Scenarios for Macro-economic Change Driver
Macro-economic Change
Scenario 1
Scenario 2
Scenario 3
Global
Continuing increase in oil price
Variable gas price
Regional
Expansion of oil and gas Continuing exploration; Expansion of oil and gas
development (Norway
short-term oil and gas
development (Norway &
& Russia; within good
development focused
Russia; both within good
environmental standards
Snohvit/Goliat (Norway).
environmental standards)
for Norway only)
Shtokman (Russia) field
Mixed energy economy
online 2016 within good Intensive alternative
(Norway & Russia)
energy production
environmental standards
(Norway only)
Limited alternative
energy (<20%) (Norway
only)
Table 26.4.Assumptions under the Scenarios for Climate Change Driver
Climate Change
Scenario 1
Scenario 2
Scenario 3
Significant acidification (Ph=7.8)
Arctic min. summer sea
ice extent reverts to a
positive trend
Barents Sea sea
temperature warming
trend ceases
Arctic min. summer sea Arctic min. summer sea
ice extent declines more
ice extent follows current
rapidly than current
declining trend
trend
Barents Sea sea
Barents Sea sea
temperature follows
temperature warming
long-term continuing
trend accelerates
warming trend
the practicalities of the ecosystem approach in the barents sea
603
Scenario 2: Continuing Trends
Under this scenario, Arctic minimum sea ice extent follows current declining trend and Barents Sea temperature follows long-term continuing warming
trend including ocean acidification. Under this scenario, the current level of cooperation between Russia and Norway remains unchanged and existing international agreements are in place. Oil and gas development continues but Norway is
focused on regional Barents Sea developments including Snohvit/Goliat/Skrugard
and Russia is focused on Shtokman field, which under this scenario comes online
in 2016. Both countries operate oil and gas development with collaboration over
good environmental standards with Norway taking the lead with measures such
as the Zero Discharge Policy.49 However, only Norway offers some moderate
incentives for low carbon/alternative energy and achieves limited alternative
energy production.
Scenario 3: Fortifying the Borders
Under this scenario, Arctic minimum summer sea ice extent no longer declines
and the Barents Sea temperature warming trend ceases. There is minimal cooperation between Russia and Norway and the Border Agreement collapses
because of geopolitical disputes over boundaries and resource access. Both countries adopt unilateral approach to environmental policy with Norway emphasizing a multilateral approach and Russia a unilateral isolationist approach. Both
countries also expand their oil and gas development, although only Norway does
it within good environmental status. Norway also focuses on intensive alternative energy production encouraged by strengthened incentives for low carbon/
alternative energy.
Results
The ECOBAR approach analyses the effectiveness, via an expert group and peer
reviewed approach, of a suite of indicators to detect changes in drivers that
impact benthic ecosystems and to identify possible outcomes of changes. This is
accomplished by identifying and scaling interactions between international and
national political drivers, economic sectors and twelve indicators across three
scenarios. The ECOBAR process improves indicator selection for monitoring by
taking into consideration both a changing policy and ecological context.
49Norwegian Petroleum Directorate, Environmental Considerations in the Petroleum Sector, 4 July, 2011, http://www.npd.no/en/Publications/Facts/Facts-2011/Chapter-9/.
604
tavis potts et al.
The Barents Sea IMP identifies that monitoring of the benthic fauna in the Barents Sea should continue to inform policy. The results identify a roadmap across
different political, environmental and resource drivers that affect the Barents Sea
across three different vectors (the scenarios). The indicators attempt to capture
any impacts upon the benthic environment of the Barents Sea and the analysis
identifies the most effective measures used in monitoring.
A summary of indicator effectiveness is provided for scenario 1 (see Figure 26.3)
and scenario 2 (see Figure 26.4) below. The figures indicate the suitability of individual indicators for monitoring the Barents Sea benthic ecosystem under different drivers. For example, in the biodiversity suite, four indicators were identified
to be the most effective at capturing change across all the drivers and scenarios.
These indicators are biomass/infaunal abundance, species traits, and polychaeta/
amphipod ratio. To a lesser extent and with a focus on temperature change and
acidification, the indicator for bivalve growth rates was deemed most appropriate. In the contaminants suite, Polyaromatic hydrocarbon (PAH) levels and contaminant effects (biomarkers) were considered the most effective indicators to
measure change across the drivers.
Reading from left to right across individual drivers highlights what portfolio of measures may be best for monitoring issues and may lead to a different
set of measures based on regional contexts. In scenario 1, with drivers from the
International Maritime Organisation, specifically in terms of identifying PSSAs
(Particularly Sensitive Sea Areas) and management of ballast water, a range of
biomass/epifaunal, infaunal and species traits should be monitored for impacts
on benthic systems. With respect to the impacts of climate change and ocean
acidification, while biomass infaunal and bivalve growth rate indicators will be
effective at capturing change and a number of indicators appear to be moderately effective, there remain a number of gaps in knowledge. In scenario 1 in
the contaminants suite all of the indicators were judged to be highly effective in
measuring improved cooperation in OSPAR including measuring across the Barents Sea marine system in its entirety. In scenario 2 continuing trends the same
set of indicators were deemed to be moderately effective. The difference between
the scenarios in this case could be the expansion of the OSPAR network to
include the entire Barents Sea with the hypothetical ascension of Russia. The
change in the indicator effectiveness reflects the views of scientific opinion that
under the continuing trends scenario the Norwegian portion of the Barents Sea
is being monitored as Russia is not a member of the international environmental
agreement OSPAR and an ecosystem approach is not being followed. As a result
the indicators are only telling one part of the story.
In terms of the method, it was observed that the comparison of indicator changes across scenarios (that is, evaluation of indicators ability to pick
up change in drivers) would have made more sense had all the drivers whose
assumptions changed across scenarios been evaluated regardless of their perceived significance for a particular scenario. This left some gaps in the analysis
the practicalities of the ecosystem approach in the barents sea
605
Figure 26.3Expert Group Results for Scenario 1: Cooperative Ecosystem Management
in the Barents Sea Region.
Figure 26.4Expert Group Results for Scenario 2: Continuing Trends.
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tavis potts et al.
where certain issues were evaluated in one scenario but not in others as the issue
failed a significance test. Several evaluations varied in effectiveness across scenarios and require discussion with the scientific team to dig out the cause of variation and build internal consistency (for example OSPAR indicators in scenario
1 and 2). Several of the indicators are not sensitive enough to pick up changes in
scenarios and require further review. This connects to observations by scientists
that some common indicators are not particularly responsive to changing conditions. This process demonstrated that selecting a convenient set of measures,
whether in terms of data availability or cost, is not an appropriate approach to
monitor dynamic changing systems. While the ECOBAR approach was an initial
foray in to the selecting appropriate measures, it reveals the uncertainty, heterogeneity, and dynamism inherent in monitoring a changing natural and political
environment.
Conclusion
Developing an ecosystem approach that includes political, economic and ecological dimensions is a challenging prospect. It takes time and resources and
dedication by social and natural scientific teams to build efforts to speak a common language and understand different perspectives. This foray by the ECOBAR
project establishes a template and process by which scientifically robust indicators can be examined in the context of political and economic drivers that effect
industrial development in the Barents Sea.
The utility lies in a more refined understanding of the indicator development
approach, identifying the potential for a small and effective set of measures that
can be tested across a number of sites and routinely monitored over time, and
that are robust enough to detect change across a number of contexts and scenarios. Components of the ecosystem approach have been fulfilled, including
socio-economic and scientific assessments, improved dialogue and participation, and inclusion of multi sectoral analysis through a dynamic scenario driven
lens. The process requires further iteration and development with stakeholders
in government, industry and science. A critical point from the research is that
measures should be responsive to changes in the benthos, and any detected
changes can trigger policy action through planning, spatial allocation or licensing
requirements.
PART seven
NEW CHALLENGES IN OCEANS GOVERNANCECLIMATE CHANGE
AND THE OCEANS
chapter Twenty-seven
Sea Level Rise and the Law of the Sea: How Can the Affected
States be Better Protected?
Moritaka Hayashi*
Introduction
A recent report of the United Nations Secretary-General points out that global
mean temperature has increased by around 0.74C over the past century.1 The
report goes on to suggest that past emissions will lead to unavoidable further
warming (estimated at approximately a further 0.6C by the end of the century
relative to 19801999), even if atmospheric greenhouse gas concentrations were
to remain at 2000 levels.2 Moreover, if greenhouse gas emissions continue to
rise at their current pace and atmospheric concentrations are allowed to double
from their pre-industrial level, the world faces an average temperature rise of
between 1.8 and 4.0 degrees Celsius this century.3 The report states that, although
projections of the response of the Antarctic and Greenland ice sheets are still
highly uncertain, new research suggests sea-level rise of a meter or more by 2100.4
Such a rise in sea level and more powerful storms and higher tides caused also
by climate change and variability would inflict serious adverse impacts against
low-lying coastal areas, and in particular the baselines and base points used for
measuring various maritime zones. For some small low-lying countries, sea level
rise could also present the ultimate security threat, jeopardizing [their] very
existence.5
*Professor Emeritus, Waseda University School of Law, Japan.
1 Climate change and its possible security implications: Report of the Secretary-General, UN
Doc. A/64/350 (11 September 2009), paragraphs 23 and 24.
2Ibid.
3Ibid.
4Ibid.
5Ibid., paragraph 71.
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moritaka hayashi
Under current rules of international law, coastal States are to establish their
baselines on the basis of their coastal geography. When key features of the coastline change, the coastal State concerned is expected to change the position of the
baselines from which its maritime claims are measured, which, in turn, requires
in principle the redefinition of the outer limits of the maritime zones measured
from such baselines. In normal cases, the position of baselines and the outer
limits of maritime zones measured therefrom would tend to recede landwards,
causing losses to the coastal State with respect to portions of its maritime zones
and thus the jurisdictional rights therein. Particular attention needs to be paid
to cases where sea level rise causes the submergence or near submergence of
small islands of a State, or all the islands constituting a State, forcing the entire
population of the islands to migrate elsewhere. Thus the States most seriously
affected by sea level rise are likely to be small island States and States with their
important population and economic bases in vulnerable low-lying coastal areas.
Such adverse consequences would be an unfair burden imposed on many such
States, particularly small island developing States, since they are among those
which have contributed the least to global warming and thus sea level rise.
The purpose of this chapter is to explore possible legal measures which would
assist those States which would inevitably suffer such adverse effects to keep their
losses to a minimum as far as possible. The chapter first reviews current rules of
the law of the sea applicable to various situations which are likely to occur with
sea level rise. It then discusses possible new legal rules that could be adopted by
the international community at least to limit and minimise the adverse effects on
coastal and island States. After suggesting the key substantive contents of such
new rules, the chapter explores the most appropriate procedures for the international community to adopt them in the form of a suitable instrument.
Possible Effects of Sea Level Rise on Baselines
Baselines are starting points for measuring the territorial sea, the contiguous
zone, the exclusive economic zone (EEZ) and the continental shelf of a coastal
State. There are several types of baselines. The United Nations Convention on the
Law of the Sea (LOSC)6 provides that the normal baseline is the low-water line
along the coast as marked on large-scale charts officially recognised by the coastal
State (Article 5). In the case of islands situated on atolls or of islands having
fringing reefs, the baseline is defined as the seaward low-water line of the reef, as
shown by the appropriate symbol on charts officially recognised by the coastal
State (Article 6). Low-tide elevations do not normally generate maritime zones.
However where a low-tide elevation is situated wholly or partly at a distance not
6United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
sea level rise and the law of the sea
611
exceeding the breadth of the territorial sea from the mainland or an island, the
low-water line on such elevation may be used for drawing baselines (Article 13).
The LOSC further provides that, in certain localities where the coastline is
deeply indented and cut into, or if there is a fringe of islands along the coast in
its immediate vicinity, the coastal State may employ the method of straight baselines, joining appropriate points in drawing the baseline in accordance with the
detailed rules and conditions specified in Article 7. Such appropriate points may
be small islands or rocks which are above water at high tide, together with lowtide elevations should these have a lighthouse or similar installation constructed
on them or there has been general international recognition that they may be
used for this purpose (Article 7(4)). Similar straight lines may also be used across
the mouth of a river between points on the low-water lines of its banks (Article
9). With regard to a bay which meets the definition in Article 10, where the distance between low-water marks of its natural entrance points does not exceed 24
nautical miles, a straight closing line may be drawn between these two low-water
marks as baseline (Article 10(4)).
Lastly, an archipelagic State may draw straight archipelagic baselines, in
accordance with the provisions of Article 47, by joining the outermost points of
the outermost islands and drying reefs on the archipelago.
When the sea level rises, it follows that the low-water line will normally move
landwards, and since the low-water line must be marked on charts in accordance
with Article 5, the coastal State is required to replace the older line with the new
one on its nautical charting. Depending upon the physical features of coastline,
the shifting of baselines could be considerable. It is pointed out that a change in
depth of a few decimetres could make horizontal changes in baseline position of
several kilometres.7 Where baselines have been drawn on reefs, the new baselines
must be shown on charts by appropriate symbol, as required by Article 6. Where
a low-tide elevation wholly or partially within the territorial sea which has been
used as a baseline point becomes submerged at low-tide, the coastal State can
no longer use it for drawing baselines. Where straight baselines have been drawn
using a small island or rock as a base point and sea level rise has caused the base
point to be submerged at high tide, the coastal State must change the straight
baseline segment concerned, thus shifting the straight baseline system landwards.
In the case of rivers, the closing lines of their mouths must be shifted landwards. With regard to bays, where the low-water marks on their entrance points
shift, the closing line may have to be adjusted in order to meet the conditions
specified in Article 10. Where an archipelagic State has drawn straight archipelagic
7Leedert Dorst and Ina Elma, The Effects of Changing Baselines on the Limits of the
Netherlands in the North Sea, paper delivered at the 5th ABLOS Conference, Monaco,
1517 October 2008. http://www.gmat.unsw.edu.au/ablos/ABLOS08Folder/Session6Paper3-Dorst.pdf, 4.
612
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baselines using an island and the island has subsequently become submerged at
high tide, or where it has drawn archipelagic baselines to and from a drying
reef and it has subsequently become submerged at low tide, the archipelagic
State must likewise adjust the archipelagic baseline segments without using such
features as base points.
One of the legal consequences accompanying such changes of actual positions
of ambulatory baselines is the landward shifting of the outer limits of the
territorial sea, the contiguous zone and the EEZ, all of which are measured by
certain fixed distance from the baselines, as well as those outer limits of the
portions of the continental shelf that are established on the basis of distance
from baselines.8 Such shifting would involve the loss by the coastal State of its
sovereignty over, and sovereign rights or jurisdiction with respect to natural
resources and various activities in, the outer maritime areas in question.
Depending on the interests involved, such a situation could become a source of
disputes with other countries. For example, if a coastal State does not take action
to change the outer limits of the EEZ despite a considerable regression of the
baselines, other States such as those which are interested in the fishery resources
in the area concerned may challenge the inaction on the basis of freedom of the
high seas. Similarly, where the outer limit of the territorial sea is kept without
change after a major regression of the baseline, frictions may be caused between
the coastal State still enforcing the innocent passage regime and another State
whose ships try to exercise freedom of navigation.
Possible Effects of Sea Level Rise on Small Islands and Small Island
States
Sea level rise may have particularly serious effects on some islands and rocks, as
defined in the LOSC. According to Article 121, an island, defined as a naturally
formed area of land, surrounded by water, which is above water at high tide, is
entitled to the various maritime zones just as other land territory, and rocks
which cannot sustain human habitation or economic life of their own have no
EEZ or continental shelf. Some of the possible effects of sea level rise on small
islands and rocks under the current law of the sea may be highlighted under the
following four different scenarios.
8The outer limits of the continental shelf may be established by the coastal State by using
different methods depending on the geographical or geological features of the various
parts of the shelf. Where appropriate, the coastal State may choose the limit of 200
nautical miles from the baselines, or the outer edge of the continental margin where it
extends beyond 200 nautical miles, but in any case not more than 350 nautical miles
from the baselines or 100 nautical miles seawards of the 2,500m depth isobaths (or
contour) (LOSC, Article 76(5)).
sea level rise and the law of the sea
613
Total Submergence of an Island or Rock Belonging to a State
What happens if an island or a rock belonging to a State submerges completely,
with no baselines left from which maritime zones are to be measured? Although
no authentic interpretation has been given on the highly ambiguous provision of
Article 121,9 and State practice is divergent on the meaning and treatment of such
islands or rocks, the literal interpretation of the article appears to imply that the
State to which such island or rock belong would lose the territorial sea, the contiguous zone and the EEZ generated by them, though in the authors view the
seabed of the territorial sea should be treated in a manner similar to the procedure
for permanently establishing the outer limits of the continental shelf, as discussed
below. The magnitude of the loss of such maritime zones could be huge for some
islands: the area of the territorial sea and EEZ extending up to 200 nautical miles
all around a tiny island, for example, would be approximately 430,000 square
kilometres. With regard to the continental shelf, which belongs to the coastal
State ipso facto and ab initio,10 the State continues to enjoy its sovereign rights
up to its outer limits which are established on the basis of the recommendations
of the Commission on the Limits of the Continental Shelf (CLCS) and permanently
described on the charts deposited with the UN Secretary-General in accordance
with Article 76(8) and (9) of the LOSC. No provision exists in the LOSC for those
States which do not claim any outer continental shelf extending beyond the 200
nautical mile limit. However, it would be unjust and unfair for such States to
lose their continental shelf up to 200 nautical miles, to which they are entitled
under Article 76(1), when the island becomes submerged, while other States may
retain their continental shelf even beyond 200 nautical miles. For this reason the
argument should be supported that the coastal Sate should be able to make use
of the same procedure for depositing charts with the Secretary-General under
9On the ambiguous nature of Article 121, see, for example., Barbara Kwiatkowska
and Alfred H. A. Soons, Entitlement to Maritime Areas of Rocks Which Cannot
Sustain Human Habitation or Economic Life of Their Own, Netherlands Yearbook of
International Law, 21 (1990): 180181; Robert Kolb, Linterprtation de larticle 121,
paragraphe 3, de la Convention de Montego Bay sur le droit de la mer: Les rochers
qui ne se prtent pas lhabitation humaine ou une vie conomique proper... [The
interpretation of article 121, paragraph 3, of the Montego Bay Convention on the Law
of the Sea: The rocks which cannot sustain human habitation or economic life of their
own...], Annuaire franais de droit international [French Yearbook of International
Law], 40 (1994): 879; Edward D. Brown, The International Law of the Sea, Volume I
(Aldershot: Dartmouth, 1994), 150151; and Robin Churchill and Vaughan Lowe, The
Law of the Sea, 3rd edition (Manchester: Manchester University Press, 1999), 50.
10The North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal
Republic of Germany v Netherlands), (1969) ICJ Reports 3, 23.
614
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Article 76(9) in order to establish the outer limit of its continental shelf at 200
nautical miles as well.11
With respect to the seabed area created by the submerged island itself, no
clear conclusion may be drawn from the provisions. However, on the basis of
the principle of general international law that a State consists physically not
only of the land but of its airspace and its subsoil,12 and the very fact that the
seabed area in question was precisely part of its own land and subsoil until
the inundation, it may be argued that the area constitutes a special kind of seabed
area, assimilated to the continental shelf, belonging to that State. Furthermore, it
appears also reasonable that such a seabed area, together with the seabed of the
territorial sea of the submerged island, should be able to benefit from a procedure
similar to that for permanently establishing the outer limits of the continental
shelf. Otherwise, to take an extreme case, an unusual situation would arise
like the center hole of a compact disc, where the coastal State could keep
exercising the sovereign rights over the belt of the seabed area up to 200 nautical
miles or more while it would lose all the rights in its hole and the narrow belt
around it which was formerly the territorial sea.
Near Total Submergence of an Island Belonging to a State
In the case where an island belonging to a State becomes mostly submerged
to the extent that it is considered a rock which can no longer sustain human
habitation or economic life of its own under Article 121(3), the territorial sea and
the contiguous zone of the island remain, though adjustment has to be made to the
location of baselines, while the EEZ may no longer be claimed. With regard to
the continental shelf, the coastal State would lose its sovereign rights thereover
unless it has permanently established its outer limits in accordance with the
LOSC, as discussed above. Alternatively, if the feature was to become a low-tide
elevation, now submerged at high tide but still exposed at low tide, its capacity
to generate maritime claims would depend on its proximity to the baselines of a
feature still above high tide in accordance with Article 13.
11This argument is put forward by Alfred H. A. Soons, The Effects of a Rising Sea Level
on Maritime Limits and Boundaries, Netherlands International Law Review, 37(1990):
212. See also Jenny Grote Stoutenburg, Implementing a New Regime of Stable Maritime
Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-Level
Rise, International Journal of Marine and Coastal Law, 26/2 (2011): 270, who supports
this interpretation for the reason that only according to that view a legally secure and
permanent division between seabed areas under national jurisdiction and the seabed
of the Area beyond them can be ensured.
12Robert Jennings and Arthur Watts (eds.), Oppenheims International Law, 9th edition,
Volume 1 (Oxford: Oxford University Press, 1996), 672573.
sea level rise and the law of the sea
615
A recent example of near total submergence is the case of an island in the
Bay of Bengal called South Talpatty by Bangladesh or New Moore by India,
which was once reported to have completely submerged but subsequently
reported to appear during very, very low tide conditions and Bangladesh
promptly reasserted its sovereignty claim over it.13 Another example of serious
submergence is the Carteret Islands of Papua New Guinea, an atoll with the total
land area of 0.6 square kilometres and a population of about 1000 in 2005. The
Islands have been gradually flooded and reportedly becoming uninhabitable, so
that the government started to evacuate the entire population. The evacuation
was continuing as of 2011.14
Total Submergence of All the Islands Constituting an Island State
In the case where all the islands constituting an island State become totally
submerged, i.e., where an island State loses the entire land territory, and assuming
that the State itself survives somewhere else under arrangements for some kind
of union or federation (hereinafter successor State) with another State,15 the
successor State would normally have no rights with regard to the territorial
sea, the contiguous zone and the EEZ. The successor State however would exercise
the sovereign rights with regard to the continental shelf whose outer limits have
been established in accordance with the Convention. The same rules as those
discussed above under the first scenario should apply also to the seabed areas
formed by the submerged islands and possibly their territorial sea.
13See, Clive Schofield and I Made Andi Arsana, Imaginary Islands? Options to Preserve
Maritime Jurisdictional Entitlements and Provide Stable Maritime Limits in Face of
Coastal Instability, paper delivered at the 6th ABLOS Conference, Monaco, 2528
Octtober 2010, http://www.gmat.unsw. edu.au/ablos/ABLOS10Folder/S2P1-P.pdf
14See, http://en.wikipedia.org/wiki/Carteret_Islands.
15For discussion on various scenarios involving the total or near submergence of
an island State, see Soons, The Effects of a Rising Sea Level on Maritime Limits
and Boundaries, 230; David Freestone and John Pethick, Sea Level Rise and Maritime
Boundaries, in Gerald H. Blake (ed.), Maritime Boundaries (London: Routledge, 1994),
80; Moritaka Hayashi, Sea Level Rise and the Law of the Sea: Legal and Policy Options,
in Proceedings of the International Symposium on Islands and Oceans, Tokyo, 2223
January 2009 (Tokyo: Ocean Policy Research Foundation, 2009), http://www.sof.or.jp/
en/report/pdf/200903_ISBN978-4-88404-217-2. pdf, 78: Rosemary Rayfuse, W(h)ither
Tuvalu? Ocean Governance and Disappearing States, in Proceedings of the International
Symposium on Islands and Oceans, Tokyo, 2223 January 2009, 91; Lilian Yamamoto
and Miguel Esteban, Vanishing Island States and Sovereignty, Ocean and Coastal
Management, 53 (2010): 1; Emily Crawford and Rosemary Rayfuse, Climate Change,
Sovereignty and Statehood, in Rosemary Rayfuse and Shirley Scott (eds.), International
Law in the Era of Climate Change (Cheltenham: Edward Elgar. 2012), 243. Available in
Sydney Law School Research Paper No. 11/59, http://ssrn.com/abstract=1931466.).
616
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Near Submergence of an Island State
In the case where some of the islands of an island State are totally submerged and
the remaining un-submerged islands are considered as rocks which can no longer sustain human habitation or economic life of their own under Article 121(3),
forcing the government and the entire population to move out of the islands and
form a new State (successor State), the entire EEZ of the island State would be
lost, while the successor State would exercise the sovereign rights with regard to
the continental shelf as far as its outer limits have been established in accordance
with the Convention. The successor State would also exercise the sovereignty and
jurisdiction over the territorial sea and the contiguous zone of the un-submerged
islands, With regard to the seabed area formed by the submerged islands and
their territorial sea, the same rules as those discussed above under the first scenario should apply.
The Need for New Rules on Baselines and Submerged Islands
As illustrated above, under the current rules which are built on the basis of
ambulatory baselines, coastal States, in particular small island States, could suffer serious adverse effects as a result of sea level rise. The LOSC has no remedial
provision to be applied to such a case since a phenomenon like sea level rise was
never brought up, at least formally, during the negotiations on its draft. This is
the case except in relation to highly unstable coastlines in a delta or similar area,
where Article 7(2) provides that the appropriate points may be selected to draw
straight baselines along the furthest seaward extent of the low-water line, and
that notwithstanding subsequent regression of that line, the straight baselines
shall remain effective until changed by the coastal State in accordance with this
Convention. It should be noted that even in this exceptional case the provision
implies that the coastal State is to change the straight baselines eventually in
accordance with the general rules of the LOSC.
With the aim of providing a more equitable and fair solution to the problems
arising from the ambulatory nature of baselines, several authors have suggested
the adoption of new rules of international law on the basis of fixing or freezing the
existing baselines and/or the outer limits of the various maritime zones derived
from them. Caron, for example, suggests that the baselines should be fixed on
the basis of the presently accepted baselines.16 Similarly Judge Jesus proposes to
freeze the baselines as they are established in accordance with the LOSC and duly
16David D. Caron, When Law Makes Climate Change Worse: Rethinking the Law of
Baselines in Light of a Rising Sea Level, Ecology Law Quarterly, 17 (1990): 640641.
sea level rise and the law of the sea
617
publicised.17 Soons, on the other hand, focuses on the outer limits of the maritime
zones, and suggests that limits of the territorial sea and the EEZ should be fixed
at the area where they were located at a certain moment in accordance with the
general rules in force at that time. He cites Article 76(9) of the LOSC relating to
the outer limits of the continental shelf, which serves as a precedent in support
of the acceptance of such a rule.18
The three authors cited above call for replacing the ambulatory baselines
or the outer limits of the territorial sea and the EEZ under the LOSC with the
permanently fixed ones.19 They have the same goal of fixing the outer limits of
the maritime zones as the coastal States establish in accordance with the LOSC
provisions before sea level rise actually forces baselines to be re-drawn and the
limits of their maritime zones be moved landwards. Although the goal is common,
the two approaches described above imply an important difference in the legal
status of the shore area that would be submerged due to sea level rise.
The fixing of baselines would mean that the future submerged area becomes
internal waters, whereas fixing only the outer limits of maritime zones would
result in expanding the breadth of the territorial sea landwards to the extent
that baselines shift in the future. According to this latter approach, the newly
submerged area would be subject to the regime of innocent passage. Between
the two approaches, the former appears to be more justifiable since the newly
submerged area was formerly part of the land territory of the coastal State
under its full sovereignty, and thus should be turned into internal waters rather
than territorial sea. In addition, the former has the merit of having no need of
changing the rules on the breadth of the territorial sea and the EEZ as contained
in Articles 3 and 57 of the LOSC, respectively. Furthermore, the fixing of baselines,
especially straight and other non-normal baselines, is of particular importance for
navigators of non-coastal States as they define the outer limits of internal waters
of the coastal State. As Symmons and Reed rightly stress, the fixing of only the
outer limits is an unsatisfactory and a roundabout way of informing another
State of the true extent or location of any particular claimed baselines where
such non-normal baselines are used.20
17 Jose Luis Jesus, Rocks, New-born Islands, Sea Level Rise and Maritime Space, in
Jochen Frowein et al. (eds.), Verhandeln fr den Frieden [Negotiating for Peace]) (Berlin:
Springer, 2003), 602603.
18Soons, The Effects of a Rising Sea Level on Maritime Limits and Boundaries, 225.
19Another author, Stoutenburg, Implementing a New Regime of Stable Maritime Zones
276, suggests that both the baselines and the outer maritime limits should be fixed. Since
the outer limits of the various zones must be derived in accordance with the existing
rules on baselines, the fixing of baselines alone would be sufficient. Her suggestion,
however, has the merit of giving further clarification to coastal States claims.
20Clive Symmons and Michael Reed, Baseline Publicity and Charting Requirements:
UN Convention on the Law of the Sea, Ocean Development and International Law, 41
(2010): 86.
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With respect to the various categories of small islands discussed above, the
legal effects of fixing of baselines permanently may be summarised as follows:
(1) In the case of the total submergence of an island or rock belonging to a State,
the extent of the territorial sea, the contiguous zone and the EEZ remains
unchanged as they were fixed before its submergence. The entitlement to
the continental shelf also remains as far as it has been fixed permanently in
accordance with the procedures under Article 76 of the LOSC. With respect
to the seabed area and the water column created by the submerged island
itself, since no existing rules clearly cover such situation, it is desirable to
adopt a new rule, which would regard it as part of the territorial sea.
(2) In the case of near submergence of an island or rock belonging to a State, the
same conclusion may be drawn as the case of total submergence described
under (1) above, except that the submerged area of the island or rock in question would become internal waters.
(3)In the case of total submergence of all the islands constituting an island State,
assuming that the State survives somewhere else in some form of a union or
federation with another State, the successor State exercises sovereignty and
other rights that the island State has exercised with regard to its territorial
sea, contiguous zone, the EEZ and the continental shelf which were established before the submergence. The seabed areas and water column created
by the submerged islands should be regarded as part of the territorial sea as
discussed under (1) above.
(4) In the case of total submergence of all the inhabited islands and near submergence of the rest of the islands and rocks constituting an island State,
and the State survives somewhere else in some form of a union or federation
with another State, the successor State exercises sovereignty and other rights
which the island State has exercised with regard to its territorial sea, the contiguous zone, the EEZ and the continental shelf, as well as the seabed and the
water column created by the submerged islands, which should be regarded
as part of the territorial sea as discussed above. The submerged areas of the
remaining islands and rocks would become internal waters.
From the foregoing discussion, it is submitted that the idea of freezing, and thus
fixing permanently, the baselines and consequently the outer limits of various
maritime zones has considerable merits and is worth pursuing further in order
to find appropriate ways and means for its formal adoption by the international
community. In short, the suggestion is reasonable and justifiable since it would
enable a coastal State to maintain the newly submerged space as internal waters
to compensate for the loss of land territory caused by sea level rise, and also to
retain its sovereignty and other rights with respect to the maritime zones it
claims lawfully, including those generated by islands and rocks. The suggestion
would not deprive any other State of any of its existing maritime space nor would
sea level rise and the law of the sea
619
it reduce the area of the high seas.21 Furthermore, the proposal would contribute
to the stability and orderly relations involving maritime borders of neighbouring
countries, and thus to the strengthening of peace, security, cooperation and
friendly relations among all nations,22 which is a major objective of the LOSC.
If the idea of freezing the baselines and consequently the outer limits of
maritime zones is acceptable, it would be necessary to specify at what moment
they should be frozen. Various options exist for this purpose, but two main options
are the time of entry into force of the LOSC for the State concerned, and the
establishment of baselines by each State according to the relevant provisions of
the LOSC. The better option should be the latter, since it is the explicit obligation
of the coastal State to mark its normal baselines on charts it officially recognizes,
and for its non-normal baselines to show them on charts or indicate geographical
coordinates of baseline points and give due publicity to them, with a copy to be
deposited with the UN Secretary-General.23 There is, however, no time limit for
States Parties to fulfil this deposit obligation and many of them have not done so
yet.24 This option may well have an additional effect of encouraging States Parties
to expedite their action to establish their baselines.
Taking these into consideration, the present author has attempted elsewhere25
to formulate a core provision of the proposed new rules as follows:
A coastal State may declare the baselines established in accordance with the relevant provisions of the UN Convention on the Law of the Sea as permanent once it
has shown them on charts of an adequate scale or described them by a list of geographical coordinates, and given due publicity thereto, notwithstanding subsequent
changes in geographical features of coasts or islands due to sea level rise.
The above provision would obviously need to be supplemented by other provisions covering the establishment of the outer limits, including the 200 nautical
mile limit, of the continental shelf, as well as various situations which may arise
as a result of the total or near submergence of islands or island States.
21 See Caron, When Law Makes Climate Change Worse, 648.
22LOSC, 7th preambular paragraph.
23Articles 5 and 16. For the continental shelf, Article 76(9) requires the coastal State to
deposit the Secretary-General charts and relevant information, permanently describing
the outer limits. Where the outer limit is drawn at a distance of 200 nautical miles
from the baselines, it is assumed that such relevant information includes position of
the baselines.
24According to the UN Division for Ocean Affairs and the Law of the Sea, as at the
end of 2008, only a relatively small number of States Parties have fully or partially
complied with their deposit obligations. See, http://www.un.org/Depts/los/
LEGISLATIONANDTREATIES/backgroud_deposit.htm.
25Moritaka Hayashi, Sea Level Rise and the Law of the Sea, 84. See also Moritaka
Hayashi, Sea-Level Rise and the Law of the Sea: Future Options, in Davor Vidas
and Peter J. Schei (eds.), The World Ocean in Globalisation (Leiden: Martinus Nijhoff
Publishers, 2011), 198.
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moritaka hayashi
Procedures for Adopting New Rules
Although the above suggestions are not meant to contain any rule contrary to
the provisions of, or the principles and purposes of the LOSC, they do attempt
to add something new to the existing provisions, and in that sense modify the
Convention. In order to make them effective, therefore, it is important that
the new rules be adopted in a binding form at an appropriate international
forum. Various avenues are available as to the form of instrument in which the
rules would be contained, as well as the forum in which such instrument would
be adopted.26 Three options, however, are worth considering here in order to
arrive at a best and most practicable approach for pursuing the ideas presented
in this chapter.27
Formal Amendment to LOSC Provisions
The LOSC provides that any State Party may, by written communication to the
UN Secretary-General, propose specific amendments to its provisions and request
him/her to convene a conference to consider such amendments. The SecretaryGeneral must convene the conference (of the States Parties) if not less than one
half of the States Parties reply favourably within 12 months after the date of the
circulation of the request (Article 312(1)). Alternatively, a State Party may, by
written communication addressed to the Secretary-General, propose an amendment to the LOSC to be adopted by the simplified procedure set forth therein
without convening a conference, and if, within 12 months from the date of circulation of the communication by the Secretary-General to all States Parties, a State
Party objects to the proposed amendment or to the proposal for its adoption by
the simplified procedure, the amendment shall be considered rejected. On the
other hand, if, 12 months from the date of the circulation of the communication,
no State Party has objected to the proposed amendment or to the proposal for
its adoption by the simplified procedure, the proposed amendment shall be considered adopted (Article 313(1)(3)).
26For a detailed review of various options see, M. Hayashi, Sea Level Rise and the Law of
the Sea, 81 et seq. and Stoutenburg, Implementing a New Regime of Stable Maritime
Zones, 287 et seq.
27Some authors, for example, Soons, The Effects of a Rising Sea Level on Maritime Limits
and Boundaries, 225, and Caron, When Law Makes Climate Change Worse, 651,
consider the development of customary law as a best approach, though it should be
noted that their papers precede the adoption of the two implementation agreements
of the LOSC as described below. The present chapter has excluded it from among the
practicable approaches because for some coastal States, and in particular low-lying
island States, the inundation or submergence may have progressed to too serious a
degree by the time that the relevant rules of customary law have been considered to
be crystallized.
sea level rise and the law of the sea
621
These formal amendment procedures of the LOSC have so far not been used.
One of the obvious reasons for this appears to be the general feeling shared in
the international community, as repeatedly expressed, for example, by the annual
UN General Assembly resolutions on oceans and the law of the sea, which stress
the unified character of the Convention and the vital importance of preserving
its integrity.28 Any formal attempt to amend the LOSC would therefore likely to
invite strong negative reactions in order to prevent the unraveling of the package
deal, which finally permitted the LOSC to be adopted despite strongly divided
positions of States on a number of important issues. It would thus be extremely
difficult to secure the support of more than 81 States Parties currently required for
initiating the process of formal amendment, and even less the unanimous support
of all States Parties for starting the simplified procedure. It appears therefore
that the procedures for formal amendment are not an attractive approach for
adopting new rules on sea level rise.
Decisions of the Meeting of States Parties to the LOSC
Without resorting to the above-mentioned formal amendment procedures, the
States Parties to the LOSC have, in four occasions, actually amended de facto
some of its provisions through consensus decisions of the Meeting of States
Parties (SPLOS). First, in 1995, SPLOS decided to postpone until 1 August 1996
the first election of the judges of the International Tribunal for the Law of the
Sea (ITLOS), which the LOSC provides in Article 4(3) of Annex VI to be held
within six months of the date of [its] entry into force.29 Similarly, later in the
same year, SPLOS postponed until March 1997 the first election of the members
of CLCS, which Article 2(2) of Annex II to the LOSC requires to be held as soon
as possible but in any case within 18 months after the date of entry into force of
this Convention.30 Again, in 2001, SPLOS decided that the time limit for a coastal
State to make submissions of its claimed limits of continental shelf beyond 200
nautical miles to CLCS shall be taken as having commenced on 13 May 1999, in
derogation from the specific requirement in Article 4 of Annex II to do so within
10 years of the entry into force of the Convention for that State.31 Lastly in 2008,
28See, for example, General Assembly resolutions 62/215, paragraph 2: 63/111, paragraph
2: 64/71, paragraph 2; and 65/37, paragraph 2, http://www.un.org/en/ga/67/resolutions
.shtml.
29Report of the Meeting of States Parties, doc. SPLOS/3 (1995), paragraph 16. Available at,
http://www.un.org/Depts/los/meeting_states_parties/SPLOS_documents.htm. The last
day within six months was 16 May 1996.
30Report of the Meeting of States Parties, doc. SPLOS/5 (1996), paragraph 20, http://www
.un.org/Depts/los/meeting_states_parties/SPLOS_documents.htm.The last day of the
18 months was 16 May 1996.
31 Doc. SPLOS/72 (2001), http://www.un.org/Depts/los/meeting_states_parties/SPLOS_
documents.htm.
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moritaka hayashi
revisiting this 2001 decision, SPLOS further decided that [i]t is understood that
the time period referred to in Article 4 of annex II to the Convention...and [the
above-mentioned 2001 decision] may be satisfied by submitting to the SecretaryGeneral preliminary information indicative of the outer limits of the continental
shelf...and a description of the status of preparation and intended date of
making a submission.32
Opinions are divided among States Parties and commentators regarding the
legal nature of these SPLOS decisions, particularly whether they are amendments
or understanding of the specific provisions of the LOSC.33 It cannot be denied,
however, that they do have the effect of changing the clear letters of the relevant
provisions. On the other hand, it is also clear that such changes involve relatively
simple adjustments to those provisions which relate to certain time-limits for
States Parties to take joint action. States Parties appear to be divided on whether
SPLOS has the mandate, beyond those mentioned above, to deal with matters
of a substantive nature relating to the implementation of the Convention,34
like the provisions relating to baselines. Nevertheless, since SPLOS is a forum
consisting of all the parties to the Convention, there should be no legal obstacle
for it to adopt, particularly by consensus, a decision regarding the interpretation
or implementation of the provisions of the Convention.35 Such a decision could
include one to convene an ad hoc conference of States Parties to negotiate a
new agreement supplementing the LOSC. This option shall be discussed further
below.
32Doc. SPLOS/183 (2008), paragraph 1(a), http://www.un.org/Depts/los/meeting_states_
parties/SPLOS_documents.htm.
33For detailed analysis of these decisions see, Alex G. Oude Elferink, Reviewing the
Implementation of the LOS Convention: The Role of the United Nations General
Assembly and the Meeting of States Parties, in Alex G. Oude Elferink and Donald
R. Rothwell (eds.), Ocean Management in the 21st Century: Institutional Frameworks
and Responses (Leiden: Martinus Nijhoff Publishers, 2004), 95; Tullio Treves, The
General Assembly and the Meeting of States Parties in the Implementation of the LOS
Convention, in Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea:
The Role of the LOS Convention (Leiden: Martinus Nijhoff Publishers, 2005), 55; Alex
G. Oude Elferink, Meeting of States Parties to the UN Law of the Sea Convention,
International Journal of Marine and Coastal Law, 23 (2008): 769.
34See, for example, Report of the Eighteenth Meeting of States Parties, 1320 June 2008,
doc. SPLOS/184, paragraph 118, http://www.un.org/Depts/los/meeting_states_parties/
SPLOS_documents.htm.
35After a thorough analysis of various amendment procedures under the Convention,
Freestone and Oude Elferink concluded that international law does not preclude
state parties to a treaty amending it by agreement, and that such an agreement may
presumably take the form of a decision of a meeting of states parties. David Freestone
and Alex G. Oude Elferink, Flexibility and Innovation in the Law of the Sea: Will
the LOS Convention Amendment Procedures Ever be Used? in Oude Elferink, (ed.),
Stability and Change in the Law of the Sea: The Role of the LOS Convention, 209.
sea level rise and the law of the sea
623
Agreements Supplementary to the LOSC
A new supplementary agreement for the implementation of the LOSC could be
adopted not only by a conference of States Parties, but also by a special conference
convened by the UN General Assembly, or alternatively by the General Assembly
itself after its draft is negotiated in a subsidiary forum like a special committee or
working group, or in an informal body. While no such conference of States Parties
has been convened and it does not appears politically favourable currently to
expect such a possibility, two agreements for implementing the LOSC have
been adopted through the involvement of the General Assembly. First, in 1992,
the General Assembly decided36 to convene a UN Conference on Straddling Fish
Stocks and Highly Migratory Fish Stocks. The Conference adopted in 1995 the
Agreement for the Implementation of the Provisions of the UN Convention on
the Law of the Sea relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement).37 In the
second case involving an informal process, in 1990 the Secretary-General started
to convene a series of informal consultations initially among selected States on
outstanding issues regarding the provisions of Part XI (on deep seabed area) of
the LOSC. A text for the Agreement relating to the Implementation of Part XI
of the Convention was thus prepared informally, and subsequently submitted to
a formal meeting of the General Assembly in 1994. The Assembly then adopted
the text as an annex to a formal General Assembly resolution,38 inviting States
to sign and ratify it.
Both of the above-mentioned agreements are often called implementing
agreements of the LOSC and the procedures for adopting both types of agreements
are available in the future. The latter agreement, however, contains a number of
de facto changes to the text of the LOSC and this is precisely one of the reasons
why its negotiations had to be conducted informally, whereas the former
agreement may be regarded as supplementing and expanding the LOSC provisions
with detailed rules and strengthening its basic principles.39 Since the proposed
agreement on sea level rise is not meant to change the substance of existing LOSC
provisions, the procedure better suited for its negotiation and adoption would be
36General Assembly resolution 47/192 of 22 December 1992, http://www.un.org/en/
ga/67/resolutions.shtml.
37The United Nations Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation
and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for
signature 4 December 1995, in force 11 December 2001 ILM, 34 (1995): 1,542.
38General Assembly resolution 48/263 of 28 July 1994, http://www.un.org/en/ga/67/
resolutions.shtml.
39See, Moritaka Hayashi, The 1995 Agreement on the Conservation and Management
of Straddling and Highly Migratory Fish Stocks: Significance to the Law of the Sea
Convention, Ocean and Coastal Management, 29 (1995): 51.
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moritaka hayashi
the former, that is, the one used for the UN Fish Stocks Agreement. This, however,
does not exclude the possibility of exploring of other procedures as the political
dynamics of the General Assembly concerning the sea level rise issue dictate.
Conclusions
The question of climate change and sea level rise is attracting increasingly more
serious attention of the international community. In 2011, for the first time, the
UN Security Council devoted an entire full-day meeting of 20 July on the question
of climate change. At the conclusion of the meeting, the President of the Council
made a statement, expressing its concern that possible adverse effects of climate
change may, in the long run, aggravate certain existing threats to international
peace and security, and that possible security implications of loss of territory of
some States caused by sea level rise may arise, in particular in small low-lying
island States.40
Representing a group of States which are most likely to be affected by sea
level rise, the Leaders of the Pacific Islands Forum (PIF) and the UN SecretaryGeneral stressed, in a joint statement on 7 September 2011, the need to address
in all relevant international fora the urgent social, economic and security threats
caused or exacerbated by the adverse impacts of ocean acidification and climate
change, including the implications of sea level rise for the territorial integrity of
Pacific small island developing States (SIDS) and their continued existence as
viable dynamic communities.41
The Leaders of PIFs Smaller Island States (SIS), for their part, stressed, in a
joint statement at a meeting held also in Auckland, on 6 September 2011, that
an issue gathering much momentum amongst SIS Leaders was the implications
associated with the survival of State as an impending consequence of climate
change, and that the Leaders felt careful consideration was needed to better
understand what the loss of physical State might mean for countries right to
exist while maintaining their sovereignty as nations and their right to manage
their collective resources.42
Under the existing rules of the LOSC, the outer limit of the EEZ of an island
is measured on the basis of the baselines. Some portions of the outer limits of
40UN Press Release SC/10332 (20 July 2011). See, http://www.un.org/en/unpress/.
41 Annex 3 to Forum Communiqu of the 42nd Pacific Islands Forum (PIF), Auckland,
New Zealand, 78 September 2011, http://www.forumsec.org/resources/uploads/
attachments/documents/2011%20 Forum% 20Communique%20FINAL.pdf.
42See, Forum SIS Leaders want urgent action on climate change, Press Statement,
7 September 2011, http://www.forumsec.org/pages.cfm/newsroom/press-statements/
2011/forum-sis-leaders-want-urgent-action-on-climate-change.html. The Leaders who
attended the meeting were those of Cook Islands, Kiribati, Nauru, Niue, Palau, Republic
of the Marshall Islands and Tuvalu.
sea level rise and the law of the sea
625
the continental shelf may also be measured from the baselines. However, total
submergence of an island due to sea level rise would bring legal consequences to its
EEZ and continental shelf that are fundamentally different: While the continental
shelf extending beyond 200 nautical miles would remain without change as far
as its outer limits have been established permanently in accordance with the
procedures under Article 76, the EEZ would presumably be lost since there would
no longer be the relevant baselines and no procedure exists for establishing its
outer limit permanently. In case of the loss of physical State due to complete
submergence of the territory, the nation that survives in some form or another,
or its successor State, would face the same consequences with regard to the EEZ
and the continental shelf.
This chapter shares the views of previous authors who argued that current
rules are inadequate and unfair for those countries which suffer most from sea
level rise. The chapter submits, in short, that the LOSC should be supplemented
by new provisions that would enable such vulnerable States to retain their EEZs,
as well as the territorial sea and the continental shelf, as their assets even after
suffering from major inundation of the land territory by sea level rise.
In the authors view a most appropriate form in which such new rules should be
couched is an agreement for the implementation of the LOSC, and the agreement
should be best negotiated and adopted within the framework of the UN General
Assembly.
chapter Twenty-Eight
Ocean Energy Development in Response to the Convention on
Climate Change: The Case of Korea
Seong Wook Park and Charity M. Lee*
Introduction
Global warming caused by anthropogenic greenhouse gas emissions has raised
the Earths surface temperature at an unprecedented rate in recent history and
may threaten the survival of human societies. According to the Intergovernmental
Panel on Climate Change (IPCC), the average temperature of the Earth increased
by 0.74C during the period from 1906 to 2005.1 During the same period, average
sea surface levels rose at an average of 1.8 mm/yr since 1961 and 3.1 mm/yr since
1993. Many studies have predicted that if global warming continues, sea levels
will increase, and the most recent projections assessed by the National Research
Council of the United States suggest possible sea level rise by 56 to 200 cm in
this century.2
In the face of this disturbing trend, the 1992 United Nations Conference on
Environment and Development (UNCED) was held to develop a common global
response. During the meeting, the United Nations Framework Convention on
Climate Change (UNFCC)3 was adopted with the goal of reducing greenhouse gas
emissions in advanced countries to the level of 1990 by 2000. Subsequently, the
*Seong Wook Park is Section Leader, Policy Research Section, Korea Institute for Ocean
Science and Technology (KIOST). Charity M. Lee is Principal Research Specialist, Policy
Research Section, KIOST.
1Intergovernmental Panel on Climate Change, IPCC Fourth Assessment Report: Climate
Change 2007, http://www.ipcc.ch/publications_and_data/ar4/syr/en/mains1.html#1-1.
2Americas Climate Choices: Panel on Advancing the Science of Climate Change, Board
on Atmospheric Sciences and Climate, Division on Earth and Life Studies, National
Research Council of the National Academies, 2010, 7 Sea Level Rise and the Coastal
Environment, Advancing the Science of Climate Change, (Washington, D.C.: The National
Academies Press),243250.
3United Nations Framework Convention on Climate Change, opened for signature 9 May,
1992, entered into force 21 March, 1994, 1771 UNTS 107 (UNFCCC).
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seong wook park and charity m. lee
Kyoto Protocol was established in 1997 to help reduce greenhouse gas emissions,
and an international institutional foundation was established for practical
implementation of this protocol among nations. Since the Kyoto Protocol, the
European Union (EU) and the United States have struggled over whether to
expand the existing Kyoto system or to approach climate change in a different
way with several options on the table including a sectoral approach as an option.4
Role sharing and accountable relationships should be set between the UN
Process (led by the EU) and the Leading Countries Conference Process (led by
the United States). Although these approaches and supporting groups differ, each
recognises the seriousness of climate change and the urgent need to respond at
the global level (see Table 28.1).
Advanced countries such as the United States, Germany, France, and Japan
have announced climate change policies in response to the Convention on
Climate Change. In May 2009, the United States also implemented climate
change policy at the federal level by creating standards for reducing exhaust gases
from automobiles and for improving fuel efficiency.5
This paper will focus on the experience of Korea in tackling the challenges faced
by climate change and energy security. In Korea, climate change is addressed in
the national policy of Green Growth, in which the environment (Green) and
economy (Growth) are combined as a new driving force that will maximise
the synergic effects of both. For practical implementation of this direction, the
Comprehensive Measures of Green Technology Research and Development was
established with the aim of doubling existing research funds by 2012.6
Some have questioned prevailing views of climate change. For example,
in his book The Skeptical Environmentalist, Bjorn Lomborg challenges the
4Sawa, Akihiro, A Sectoral Approach as an Option for a Post-Kyoto Framework Discussion Paper 08-23, Harvard Project on International Climate Agreements, Belfer Center
for Science and International Affairs, Harvard Kennedy School, December 2008.
5The Obama governments proposed regulations prescribed that only automobiles with
39 miles to the gallon for new cars and 30 miles to the gallon for light trucks can be
sold in the United States by 2016. The current average fuel efficiency of cars is 2628
miles to the gallon. The White House estimates that approximately 1.8 billion barrel of
gas would be saved by 2016 with the enforcement of this Act. Q&A: Obamas Plan to
Cut Auto Emissions, National Public Radio, http://www.npr.org/templates/story/story
.php?storyId=104295193.
6See, Green Growth Korea, http://www.greengrowth.go.kr. Green Growth recognises
that measures to deal with the rapid climate change such as energy-saving technology
and new and renewable energy businesses as important foundation for environmental
industry or new green growth power. The new green growth power plan team composed
of experts from private sectors proposed six achievable new business areas in the field of
energy and environment in October in 20092010. The planning division estimates that
these six new business areas will create new jobs employing in average 84,000 people
annually and will become 7.5 trillion won (US$6.3 billion) industry in 10 years. Also, the
oil dependency for Korea will be lowered to 13.4 per cent in 10 years.
the case of korea
629
Table 28.1.Two-track Approaches for Preparing Responses to Climate Change
Classification
UN Process
(Lead by EU)
Leading Countries Conference
Process (Lead by USA)
Purpose
Prevention of global warming
through the reduction of
green-house gas
Integrated consideration of
climate change, economic growth,
energy security
Reduction Goal
Binding
Non-binding
Goal Set Method
Compulsory method of top
down
Voluntary method of bottom up
Implementation
Way
Emphasis on Emission Trading Emphasis on development and
Vitalization
transfer cleaning technology
Major Issue
Participation of the United
States, China, etc.
Harmony with UN Process
Emission of
participating
countries
30% of total emission in the
world
(demanding the participation
of USA and developing
countries)
The early stage of conventionif
all 17 countries are participating
would occupy 80% of global
emission
concept of global warming, claiming it is a falsification arising from statistical
manipulations.7 However, even Lomborg acknowledges that a new energy era,
moving beyond the current fossil fuel-dominated era, would be the only way to
prevent possible global warming. He suggests that such an era can be realised by
investing 10 times more than the current investment in science and technology
(US$25 billion annually).
To minimise climate change, the use of fossil fuels should be significantly
reduced by turning to new and renewable energy alternatives. The importance
of new and renewable energy is increasingly recognised as the core solution for
reducing the greenhouse gas emissions that cause global warming and climate
change. However, alternative energies have thus far occupied only a complementary
position in the energy market due to the huge initial investment needed and low
price competitiveness compared to fossil fuels. Countries including the United
States, Japan, Germany, and other EU nations have targeted levels of 1520 per
cent for new and renewable energy within total energy consumption by 2020.
Korea has set its target to 11 per cent by 2030 (see Table 28.2).8
7Bjorn Lomborg, Cool It: The Skeptical Environmentalists Guide to Global Warming (Alfred
A. Knopf: New York, 2007), 272.
8Ministry of Knowledge Economy (MKE)/Republic of Korea, The 3rd Promotional Plan
for New and Renewable Energy Development, Use and Supply, 20092030 (in Korean),
MKE, Ministerial policy report, 9.
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seong wook park and charity m. lee
Table 28.2.Status and Target Level of New and Renewable Energy Supply by Korea and
Others
Classification
Status (2008, %)
Target (30 years, %)
(20 yrs for Germany and UK)
Korea
USA
Japan
Germany
U.K.
2.43
11.0
5.3
10.9
3.2
11.1
8.4
18(20 yrs)
2.8
15(20 yrs)
Table 28.3.Government Budget for New and Renewable Energy in Korea
(Unit: 100 million won (~100,000 USD))
Business Name
2003
2004
2005
2006
2007
2008*
New and Renewable
Energy Technology
Development
370
588
940
1,245
1,326
2,079
New and Renewable
Energy Supply
Business
284
619
923
1,375
1,541
1,431
57
51
78
111
270
513
Loans
Feed-In-Tariff
478
500
1,170
1,213
1,213
1,303
Total
1,189
1,758
3,111
3,944
4,350
5,326
* When reflecting a revised supplementary budget, total 797.6 billion won (Technical
development: 207.9, Supply business: 283.1, Feed-In-Tariff: 126.3, Loans: 180.3)
To develop new and renewable energy, Korea supports subsidies, loans, and
feed-in tariffs (FITs) for new and renewable market creation and supply expansion.
Support is focused on solar, wind, and hydrogen energy, as well as fuel cells for
the development of core technologies and human resources (see Table 28.3).9
Swift policy decisions by the central government, their long term visions,
and implementation plans of the Korean government may provide examples
of additional options to deal with issues of climate change and energy security.
This chapter examines four aspects of new and renewable energy development
in Korea: Koreas response to climate change and international agreements; the
status of new and renewable energy development in leading countries; the United
Nations Convention on the Law of the Sea (LOSC),10 which ensures the rights of
coastal States to develop new and renewable energy in the worlds oceans; and
how these rights allow for the construction of ocean energy facilities. Current
Korean laws are also discussed, including those related to the development of
ocean energy and the protection of the ocean environment. Details are also
presented regarding Koreas national policies related to new and renewable
9 Ibid.
10United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
the case of korea
631
energy development, the potential contributions of the maritime sector, and
directions to take to realise the goal of 13 per cent new and renewable energy
consumption by 2030.
Types of New and Renewable Energy and Development Status
Types of New and Renewable Energy
New and renewable energy is defined in Article 2 of the New and Renewable
Energy Act of Korea as energy converted from existing fossil fuels or other types
of renewable energy including sunlight, water, geothermal energy, precipitation,
and biological organisms. The Act lists the types of renewable energy as solar
energy, bioenergy (created by converting biological resources), wind power,
water power, fuel cells, energy from liquefied and gasified coal, gasified energy
from vacuum residue, ocean energy, waste energy, geothermal energy, hydrogen
energy, and other energy that is not oil, coal, nuclear power or natural gas, as set
by a Presidential decree.11
In photovoltaic power generation, sunlight is converted into electric energy
using solar cells containing material that exhibits the photovoltaic effect when
receiving sunlight. A photovoltaic system is composed of a module consisting
of solar cells, a storage battery, and a power converter. Solar heat technology
is a photothermal power which uses waves of sunlight for cooling, heating, and
supplying hot water by means of the absorption, storage, and thermal conversion
of sunlight. Solar power includes technologies for solar heat collection, heat
storage, system control, and system design. Bioenergy technology combines
chemical, biological, and combustion engineering by using biomass12 (collectively
organic life) and converting it into liquid, gas, solid fuel, or electric heat energy,
directly or through biochemical or physical conversion. In wind power generation,
electricity is obtained by changing the kinetic energy of air into mechanical
energy. Similarly, waterpower generates electricity using the potential energy of
water. Before 2005, small hydropower plants were defined in Korea as facilities
with a capacity of less than 10 MW, but in the Promotion Act of New and Renewable
11Jeong Soon Kim, Study on New and Renewable Energy Related Law Improvement (Seoul:
Korea Legislation Research Institute, 2007), 1718. The new energy is the energy source
and its application technology which is in the stage of practical use, but it cannot be
supplied due to the economic feasibility. From this point of view, the new energy in
New and Renewable Energy Act has three energy types including fuel cell, energy from
liquefied and gasified coal, gasified energy from vacuum residue, and hydrogen energy.
And the renewable energy is the renewable energy in the nature and it can be used
semipermanantly. The renewable energy according to New and Renewable Energy
Act includes solar energy, bio energy, wind power, water power, ocean energy, waste
energy and geothermal energy.
12 Biomass Energy Centre, What is Biomass, Biomass Energy Centre, http://www.biomass
energycentre.org.uk/portal/page?_pageid=76,15049&_dad=portal&_schema=PORTAL.
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seong wook park and charity m. lee
Energy Development, Use and Supply, all water-power facilities including small
hydropower plants are defined as sources of new and renewable energy.
For fuel cell energy, the chemical energy produced by a chemical reaction
between hydrogen and oxygen is converted into electric energy. This new technology produces both electricity and pure water. It has a total efficiency of 70 to
80 per cent, with power generation efficiency of 30 to 40 per cent and thermal
efficiency of more than 40 per cent. The integrated gasification combined cycle is
another new technology that converts low-grade raw materials, such as coal and
vacuum residue, into a synthetic gas composed mainly of carbon monoxide
and hydrogen. This process is conducted through incomplete combustion and gasification with limited oxygen and steam in a high-temperature/high-pressure
gasification device, generating electricity by driving gas and steam turbines after
the purification process. Coal-to-liquid technology converts coal, which is a solid
fuel, into the liquid fuels of gasoline and diesel oil. This technology consists of
a direct liquefaction method of conversion using solvent in conditions of high
temperature and pressure, and an indirect liquefaction method of converting coal
into liquid fuel in a catalyst condition after coal gasification.
Ocean energy is obtained by converting tides, waves, sea currents, and temperature differences in the ocean into electricity. Among these types of energy
generation, the tidal power generation method uses the daily rising and falling
of sea level as a power source. Wave-power generation relies on the wave force of
coastal or deep seawater, whereas tidal current power harnesses the kinetic
energy of seawater flows. Differential thermal generation obtains electricity by
converting thermal energy into mechanical energy using temperature differences
between warm water in the oceans surface layer (for example, 25C to 30C) and
cold water in deep seawater (500m to 1,000m deep, 5C to 7C) (see Table 28.4).
Table 28.4.Geophysical Conditions for Establishing Ocean Energy Plant Facility13
Classification
Geophysical
conditions
Tidal Power
Generation
Tidal Current
Power Generation
Wave-Power
Generation
Differential
Thermal
Generation
More than 17C
Less than
More than
More than
temperature
30km from
2m/s tidal flow
3m average
difference
the land, less
current
tidal range
between
than 300m
Enclosed form Location with
surface water
water depth
apparent tidal
of gulf or bay
and deep water
current features Flexible ship
Hard seafloor
navigation and Location with
Short distance
flexible fishing
port function
from targeted
and ship
energy
navigation
consumers
13 Korea Energy Management Corporation, Understanding of New and Renewable Energy
(KEMCO, 2006), 52.
the case of korea
633
Energy and fuel can also be obtained from wastes, such as those produced by
solid fuel, liquid fuel, and gas fuel processing methods; this includes pyrolysis oil
produced from combustible waste generated by industrial and residential uses.
Geothermal energy utilises thermal differences between water, underground
water, and heat. About 47 per cent of solar heat is stored underground, where
temperatures are maintained at approximately 10C to 20C. Using heat pumps,
this energy can be obtained and used for cooling and heating systems.
Hydrogen energy technology uses hydrogen existing in different forms such as
water, organic matter, and fossil fuels, extracted using separation and production
technology. Hydrogen can be easily produced by electrolysis of water. However,
hydrogen energy is still economically unfeasible because the input energy (that is,
electric energy) far exceeds the output. Thus, research has focused on manufacturing
techniques using alternative power supplies or catalysts (see Tables 28.5 and 28.6).
Table 28.5.Advantages and Disadvantages of New Energy14
Category
Advantages
Disadvantages
Fuel cell
Low pollution and high efficient energy
source
Dramatically reduce city air pollution
50% or more improved system
efficiency
Next generation energy source
New market and huge potential
New markets for metal, electrical,
electronic, mechanical and control
systems Industry
High construction cost
Common power generation (fossil fuel):
1,200 $/kW
Fuel Cell: More than 3,000$/kW
Need R&D for improving the lifetime and
reliability
Hydrogen
energy
No pollutant during hydrogen
combustion
Generate very low level of NO
Simple to use as materials of fuel cell
Unlimited production using water
Possible use in all fields from commercial
raw materials to fuel, cars, airplanes, and
fuel cell
The explosion radius is large and ignition
is easy
Difficult to identify the colorless flames
Fast spreading and high flame speed
Economic problem
Need the energy equivalent to the energy
that produces to obtain the hydrogen by
breaking the water compound
Coal gas
High generation efficiency
liquefaction Possible to eliminate more than 95% of
sulphur
High value energy utilizing low grade
fuels (coal, vacuum residue, waste, etc.)
High initial investment cost and expensive
system cost due to large equipment
Need large enterprise-based technology
development due to large equipment
14See Korea New and Renewable Energy Center (KNREC), Introduction to New and
Renewable Energy (in Korea), http://www.energy.or.kr/knrec/11/KNREC110100.asp.
Sun Chuul Park, New and Renewable Energy Technology Development Trend and
Perspective (in Korean), (presentation material, Korea Institute of Energy Research,
2007). GilSoo Jang, Introduction to New and Renewable Energy (in Korean), (Lecture
presentation material, School of Electronic Engineering, College of Engineering, Korea
University, 2010), http://www.ocwee.com/KoreaUniv/ko_017/pdf/ch1.pdf.
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Table 28.6.Advantages and Disadvantages of Renewable Energy
Category
Advantages
Disadvantages
Sunlight
Clean and unlimited energy source
Possible power generation in need
where necessary
Easy to maintain, automation possible
Long lifespan (more than 20 years)
The power output depends on the area of
solar radiation
Need large installation area due to low
energy density
Limited installation place, high cost of
system
High initial investment cost and
development cost
Solar heat
Non-polluting, unlimited clean energy
source
Various application and utilisation
Low maintenance costs
Low energy density and intermittent
Large initial installation cost
Good irradiation in spring and summer but
unfavourable in winter season
Biomass
Abundant resources and a large
ripple effect (branching industries)
Environment-friendly production
system
Reduction of environmental pollution
Various forms of generating energy
(electricity, natural compounds, etc.)
Scattered raw resources (inconvenient
collection and transportation)
Diversity and development difficulty of
technology due to various resources
Destruction of environment in case of
excessive use
Wind power Least costly
Short construction and installation
period
High efficiency of land use (farming,
livestock farming)
Intermittent airflow (charge technology)
Difficulty of grid connection
Small hydro Utilising domestic natural resources
power
Possible to supply agricultural water
in addition to power generation
Inexpensive operating cost after
construction
High initial construction cost
Inconsistent power supply depending on
the precipitation
Need to compensate for submerged and
affected area
Geothermal Relatively inexpensive generation cost
energy
No emission of pollutant
High operation rate and possible
recycle of surplus heat
Hard to find suitable location in Korea
Settling of land may occur
Impossible to recycle because it is hard to
recover the heat again
Ocean
energy
Tidal power generation: Infinite
amount, regular and predicted energy
Wave-power generation: Infinite
amount, no location restriction
Ocean temperature difference: Infinite
amount
Tidal energy: underwater facility, disturb
coastal ecosystem
Wave power: low energy density, long
route to consumers
Ocean temperature difference: same as
wave power
Waste
energy
High economic feasibility of energy
collection
Can reduce the amount of trash
Prevent the environmental pollution
due to waste
Potential for environmental pollution in
the process of waste energy conversion
Need waste processing technology
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635
Status of New and Renewable Energy Development in Leading
Countries
The United States plans to supply 10 per cent of its electricity using renewable
energy by 2012 and 25 per cent by 2025.15 To accomplish this goal, the United
States set long-term and short-term target technology goals for responding to
climate change at the national level through the Climate Change Technology
Program and has focused on cooperation with private sectors for research and
development (R&D) and investment.16 The United States implements policies
such as the Renewable Portfolio Standard (RPS), FITs,17 and production tax
credits.18 The United States has also promoted the development of solar and
wind power technology and alternative fuel cars in the transportation sector.19
To facilitate expansion of the biofuel industry, the Renewable Fuel Standard
was first introduced to the Energy Policy Act in 2005.20 The plan called for the
production of four billion gallons of alternative fuel in 2006 and 7.5 billion
gallons in 2012, and the Energy Independence Security Act21 in 2009 mandated
the production of 36 billion gallons of biofuel by 2022. As a result, production of
biodiesel and ethanol as well as bio-ethanol is expected to grow, with compulsory
use of 58 per cent ethanol or biodiesel fuel in more than 50 per cent of all new
cars by 2015. In the future, this trend will be reformulated to fit the Alternative
Fuel Standard by expanding the use of biodiesel, ethanol, and hydrogen.22
To reduce greenhouse gas emissions and promote the use of new and renewable
energy, the EU announced the Energy PackageEnergy for a Changing World
aimed at improving the structure and competitiveness of the energy industry. The
EU goal is to have environmentally friendly new and renewable energy occupy
15Korea Energy Economics Institute (KEEI), Implications of Strategy Analysis of New
and Renewable Energy Policy Trend and Green Energy Industry, Technology Development in Major Countries (in Korean), Internal Report, KEEI, June 2010, 13.
16The Ministry of Land, Transport and Maritime Affairs (MLTM), Ocean Energy Medium
to Long Term Plan (in Korean), Ministrial Policy Report, MLTM, December 2008, 7.
17Korea Energy Economics Institute (KEEI), Implications of Strategy Analysis of New
and Renewable Energy Policy Trend and Green Energy Industry, Technology Development in Major Countries (in Korean), Internal Report, KEEI, June 2010, 17.
18Ibid. It is a system that deducts the certain amount of corporate tax per production
amount of unit power generated by new and renewable energy and has been implemented by the Energy Policy Act in 1992.
19Ministry of Knowledge Economy (MKE)/Republic of Korea, The 3rd Promotional
Plan for New and Renewable Energy Development, Use and Supply, 20092030 (in
Korean), MKE, Ministerial policy report, 3.
20Energy Policy Act of 2005, Pub.L.10958.
21Energy Independence Security Act of 2007, Pub.L.110140.
22Korea Energy Economics Institute (KEEI), Implications of Strategy Analysis of New
and Renewable Energy Policy Trend and Green Energy Industry, Technology Development in Major Countries (in Korean), Internal Report, KEEI, June 2010, 15.
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seong wook park and charity m. lee
more than 20 per cent of total energy use by 2020. Spending on environmentally
friendly energy development will also be increased by more than 50 percent.23
In Germany, the goal for the renewable energy supply in 2020 is 18 per cent
of total energy. Renewable energy is to account for 10 per cent of the supply for
primary energy consumption, 20 per cent of the supply for power generation,
and 6.7 per cent of the supply for transportation fuel. Germany is emerging as
a leader in renewable energy with the successful promotion of its FIT program.
Solar technology has shown rapid growth in Germany thanks to the national
energy program and a program to install solar roofs on 100,000 houses.24
Japan had set the supply target for new energy in 2010 at 3 per cent of its
primary energy. Japan will expand this to 16 per cent (16 TWh) by 2014 through
the revision of the 2007 RPS Law (equivalent to 1.35 per cent of national electricity
sales by 2014 from the existing plan of 2002).25 Through the Cool Earth program
initiated in 2008, Japan announced 21 innovative technologies to achieve a
greenhouse gas reduction target of 50 per cent by 2050. This announcement
included detailed descriptions of technologies for energy efficiency improvement
and suggestions for the expansion of low-carbon energy use. In accordance with
the Special Measures Act for New Energy Use by Electricity Provider, Japan has
fully implemented the RPS system since April 2003.26
The Chinese government aims to have 15 per cent of its primary energy provided
by renewable sources by 2020. China will divide the renewable energy into 300
GW for hydropower, 30 GW for wind power, 30 GW for biomass, and 1.8 GW for
solar energy. China formulated a specific plan for technology development and
the supply of wind, solar, and water power to the renewable energy development
project (20062011 11th Five-year Plan).27 As announced in its National Climate
Change Program (4 June 2007),28 China is determined to reduce carbon dioxide
23Sukyoon Yoon, New and Renewable Energy Industry Status and Prospects (in Korean),
Internal report, Korea Gas Association, 2007, 21.
24Republic of Korea, Ministry of Knowledge Economy (MKE)/Republic of Korea, The
3rd Promotional Plan for New and Renewable Energy Development, Use and Supply
(20092030) (in Korean), MKE, Ministerial policy report, 3.
25Japans Energy Agency Report Progress Renewable Energy Use Law, Japan for Sustainability, http://www.japanfs.org/en/pages/026899.html.
26Korea Energy Economics Institute (KEEI). Implications of Strategy Analysis of New
and Renewable Energy Policy Trend and Green Energy Industry, Technology Development in Major Countries (in Korean), Internal Report, KEEI, June 2010, 23.
27Ministry of Knowledge Economy (MKE)/Republic of Korea, op. cit., The 3rd Promotional Plan for New and Renewable Energy Development, Use and Supply (20092030)
(in Korean), MKE, Ministerial policy report, 3.
28National climate change program-Chinas national climate change program, China.
Org., http://www.china. org.cn/english/environment/213624.htm.
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637
emission or increase energy efficiency, which will in turn stimulate the creation
of new industries.29
Related Laws for the Development of New and Renewable Energy
International Law
Various international laws address the development and jurisdiction of energy
facilities in marine environments, the impact of these facilities on navigation,
and the environmental effects of such facilities. Article 2 of the LOSC specifies
that the sovereignty of a coastal State extends beyond its land territory and
internal waters to the territorial sea, the airspace over the territorial sea, the
seabed, and the subsoil. A coastal States sovereignty over the territorial sea,
however, is subject to the right of innocent passage of foreign-flagged vessels.30
Except where the passage is non-innocent, the coastal State is obliged to not
hamper the innocent passage of foreign ships through its territorial seas. Thus, if
the facilities for ocean energy development neither completely prevent innocent
passage nor interfere unreasonably, these facilities may be constructed within the
territorial seas. Therefore, the innocent passage right should be balanced with
the rights of coastal States and the right of navigation of other countries.31 Such
issues of innocent passage right related to the offshore installations are being
raised in offshore renewable energy installations as well.32
The installation of ocean facilities in the exclusive economic zone (EEZ) of a
coastal State requires the same considerations as described above for territorial
seas. As specified in paragraph 1 of Article 56 of the LOSC, a coastal State has
sovereign rights with regard to other activities for the economic exploitation
and exploration of the zone, such as the production of energy from the water,
currents, and winds. However, the coastal State should also consider the rights
and obligations of other countries regarding the EEZ and should follow the
regulations stipulated in the LOSC. Therefore, the coastal State can construct or
authorize the construction for ocean energy facilities as long as those facilities do
not interfere with the rights of other countries or cause conflicts (for example,
affect freedom of navigation) with others in the EEZ.33
29Chinas national climate change programII, Beijing Review, 21 June 2008, http://
www.bjreview.com.cn/document/txt/2008-06/21/content_128611.htm.
30LOSC, Article 17.
31David Leary and Miguel Esteban, Climate Change and Renewable Energy from the
Ocean and Tides: Calming the Sea of Regulatory Uncertainty, The International Journal
of Marine and Coastal Law, 24 (2009): 631633.
32Maritime UK. Offshore Renewable Energy Installations, Retrieved 17 June 2013 <http://
www.studygs.net/citation.htm>.
33David Leary and Miguel Esteban. 2009, op. cit., pp. 636637.
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Related Laws in Korea
Korean laws relating to energy development include the Framework Act on Low
Carbon Green Growth,34 the Energy Act,35 the Integrated Energy Supply Act,36 the
Energy Use Rationalization Act,37 and the Act on the Promotion of the Development,
Use and Diffusion of New and Renewable Energy.38 Korea established the National
Energy Plan according to the earlier Energy Act.39 In response to climate change
and to implement policy for a low-carbon society, the Framework Act on Low
Carbon Green Growth was enacted in April 2010.
The Framework Act on Low Carbon Green Growth (Framework Act)40 created
an integrated system for establishing and reviewing national policy on green
growth. The Framework Act links and integrates policies on climate change,
global warming, new and renewable energy, and sustainable development
that had been carried out partially and separately by different departments
through individual laws. This system, which includes the Green Growth Energy
Committee, promotes the growth of low carbon green energy, including more
efficient and systematic development of green technology, the creation of green
industry, the construction of green buildings, and the establishment of green lifestyles, thus balancing economic development and environmental protection.
The government established and implemented the Basic Plan for Responding
to Climate Change and Energy Basic Plan, which included setting a longterm greenhouse gas emissions reduction target, stepwise measures by relevant
sectors, and a management scheme for energy demand, as well as securing
stable measurements (Article 40 and Article 41 of the Framework Act). To
reduce greenhouse gas emissions, improve energy conservation and energy
34Framework Act on Low Carbon Green Growth. Act No. 0031, 13 January 2010. Ministry
of Environment. Retrieved 17 June 2013 <http://eng.me.go.kr/board.do?method=view&
docSeq=8744&bbsCode=law_law_law>.
35Energy Act. Act No. 11731 (revised 23 March 2013). Ministry of Government Legislation
Web. Retrieved 17 June 2013 <http://www.moleg.go.kr/english/>.
36Integrated Energy Supply Act. Act No. 10272. Ministry of Government Legislation Web.
Retrieved 17 June 2013 <http://www.moleg.go.kr/english/>.
37Energy Use Rationalization Act. Act No. 10954. Ministry of Government Legislation
Web. Retrieved 17 June 2013 <http://www.moleg.go.kr/english/>.
38Act on the Promotion of the Development, Use and Diffusion of New and Renewable
Energy. Act No. 10445. Retrieved 17 June 2013 <http://www.moleg.go.kr/english/>.
39In April 2010, the name of the Energy Basic Act has been changed into the Energy Act,
as the Framework Act on the Low Carbon Green Growth (Framework Act) was enacted.
It is because as the basic principles and energy basic plan of energy policy were transferred to the Framework Act, these items were removed from the Energy Basic A1ct and
naturally lost its implementation power as a basic act for the national energy policy.
40Framework Act on Low Carbon Green Growth. Act No. 0031, 13 January 2010. Ministry
of Environment. Retrieved 17 June 2013 <http://eng.me.go.kr/board.do?method=view&
docSeq=8744&bbsCode=law_law_law>.
the case of korea
639
efficiency, and expand the new and renewable energy supply, the government
must set long-term and step-by-step goals according to the Framework Act. Large
energy consumers with greenhouse gas emissions higher than the set level are
required to report the amounts of greenhouse gases they release and use to the
government every year. The Framework Act also stipulates that the government
must build and operate a comprehensive information management system for
national greenhouse gas emissions (Articles 42, 44 and 45 of the Framework Act).
The government will also operate a trading system for greenhouse gas emissions
to achieve the reduction target for emissions in Korea based on the market.
The methods for allocating emission allowances, registration management,
and the construction and operation of exchanges are to be defined in separate
laws (Article 46 of the Framework Act).
Before the enactment of the Framework Act,41 the Energy Act42 was the main
energy-related basic law for guiding the long-term and integrated vision for
national energy policy, clarifying basic principles of energy policy, and identifying
energy-related specific areas that may be linked to strengthen the effects of
the energy policy. Since enactment of the Framework Act, the Energy Act has
focused on energy technology development with the establishment of local
energy plans and an emergency energy supply plan. To promote comprehensive
and efficient development of energy technologies, the Framework Act allows for
the introduction of an energy technology business fund (Article 14). However,
since the Ministry of Knowledge Economy is the main government department
overseeing the Energy Act, and its energy technology business fund is used for
energy technology R&D, the business fund cannot be utilised in the fields of
ocean energy development, which requires huge investments.
The Integrated Energy Supply Act43 aims for integrated energy supply and
rational operation of an integrated energy system. Through this act, the Korea
District Heating Corporation was founded to initiate the production of an efficient
integrated energy supply. To actively respond to the UNFCCC and contribute to
energy conservation and promotion for the public benefit, the same Act has been
revised several times since 1991. It now contains detailed regulations regarding
the basic plan for energy supply integration, including the designation of supply
target areas, participating companies, the articulation of business licenses,
business succession, transfers, mergers, and the abolition and cancellation of
licenses.
41 Framework Act on Low Carbon Green Growth. Act No. 0031, 13 Jan 2010. Ministry of
Environment. Retrieved 17 June 2013 <http://eng.me.go.kr/board.do?method=view&do
cSeq=8744&bbsCode=law_law_law>.
42Energy Act. Act No. 11731 (revised 23 March 2013). Ministry of Government Legislation
Web. Retrieved 17 June 2013 <http://www.moleg.go.kr/english/>.
43Integrated Energy Supply Act. Act No. 10272. Ministry of Government Legislation Web.
Retrieved 17 June 2013 <http://www.moleg.go.kr/english/>.
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The Energy Use Rationalization Act44 targets a stable energy supply,
improvement of the rational and efficient use of energy, and regulation of
environmental damage due to energy production and consumption. It is also a
legal basis for the establishment of the Korea Energy Management Corporation.
When the Kyoto Protocol45 was enacted on 16 February 2005, Korea needed to
prepare a system for efficient energy use and greenhouse gas emission reduction.
Therefore, the same Act imposes related obligations, including those regarding
energy use by public institutions, the collection and management of data on
total greenhouse gas emission amounts, and the imposition of mandatory energy
diagnoses for large energy consumers. As the Post-Kyoto Protocol discussions are
progressing, Korean government is very keen to the global consensus on next step
to low carbon green growth policy.
To encourage the shift from a fossil fuel-driven society to one based on
new and renewable energy, Korea enacted the Alternative Energy Development
Promotion Act46 in December 1987, setting policy directions for the development,
use, and diffusion of new and renewable energy. This Act was renamed the Act
on the Promotion of the Development, Use, and Diffusion of Alternative Energy47 in
December 1997 and elements regarding the use and supply of alternative energy
were included. To achieve new and renewable energy goals and development,
the Act was renamed again in December 2004 as the Act on the Promotion of the
Development, Use, and Diffusion of New and Renewable Energy (Promotion Act).48
This law allows the government to promote substantial technology development
and its use and supply by completing a master plan and an action plan for new and
renewable energy. The law also helps strengthen the new and renewable energy
sector by providing support for new and renewable energy technology industries
and establishing a registration system for new and renewable energy equipment
installation by specialised companies.49
44Energy Use Rationalization Act. Act No. 10954. Ministry of Government Legislation
Web. Retrieved 17 June 2013 <http://www.moleg.go.kr/english/>.
45Protocol to the United Nations Framework Convention on Climate Change, opened for
signature 11 December 1997, entered into force 16 February 2005, 2303 U.N.T.S. 148
(Kyoto Protocol).
46Alternative Energy Development Promotion Act. Act No. 3990. This act went through
various stages of revision and renaming of the Act. Last revised in 23 March 2013 with
Partial Amendment as the Act on the Promotion of the Development, Use, and Diffusion of New and Renewable Energy. Act No. 11690.
47Act on the Promotion of the Development, Use, and Diffusion of Alternative Energy. Act
No. 7284.
48Act on the Promotion of the Development, Use, and Diffusion of New and Renewable
Energy. Act No. 5446.
49Kim, Study on New and Renewable Energy Related Law Improvement, 1415.
the case of korea
641
The Promotion Act50 enables the government to conduct various support
activities for the development, use, and supply of new and renewable energy
(Article 10). It includes the whole cycle from the development of new and
renewable energy to its use and supply, including providing support for the
international standardisation of new and renewable energy-related technologies
that have already been developed or are being developed (Article 20). The act
also provides support for manufacturing common parts for new and renewable
energy equipment (Article 21), as well as for specialised companies for new and
renewable energy equipment installation (Article 22), for businesses engaging
in new and renewable energy supply (Article 27), for the commercialization of
new and renewable energy technology (Article 28), for the education, promotion,
and training of a professional workforce in new and renewable energy (Article
30), and for establishing new and renewable energy centers (Article 31). It also
helps support businesses generating new and renewable energy by using the FIT
program to subsidise differences between the price determined by the Ministry
of Knowledge Economy and the base price (Article 17).
The Framework Act on Marine Fishery Development51 is a fundamental law that
defines the basic principles and development direction for rational conservation,
management, development, and use of the ocean, for promotion of maritime
industry, and for providing an institutional strategy to comprehensively and
systematically carry out the marine fisheries policy. This law established a master
plan for marine fisheries management, conservation, development, the use
of ocean and marine resources, and the promotion of marine industry (Article 6).
Ocean energy development targets marine resources, and Article 3 of this law
provides the basic regulations for the Ministry of Land, Transport and Maritime
Affairs to carry out ocean energy development (see Table 28.7).52
Most regulations on the development and operation of ocean energy facilities
concern environmental effects.53 In Korea, construction of ocean energy
facilities is regulated by two laws respectively implemented by the Ministry of
Environment and the Ministry of Land, Transport and Maritime Affairs. The
Ministry of Environment, in the past, implemented the Preliminary Environmental
Review System facilitated by the Framework Act on Environmental Policy54 and
50Act on the Promotion of the Development, Use, and Diffusion of New and Renewable
Energy. Act No. 5446.
51 Framework Act on Marine Fishery Development. Act No. 9717, May 27, 2009.
52Based on The Rational Development and Use of Marine Resources (item 3, clause 2,
Article 6) and Article 16 (Development of Marine Resources, etc.) in the master plan of
marine fisheries development, it is possible to conduct the related policies for development and use of the ocean energy.
53Leary and Esteban, Climate Change and Renewable Energy from the Ocean and Tides:
Calming the Sea of Regulatory Uncertainty, 644.
54Framework Act on Environmental Policy. Act No. 4257.
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Table 28.7.Domestic Laws Related to Renewable Energy
Title
Framework Act on
Low Carbon, Green
Growth
Last Enactment Date/ Agency
April 2010/Office of the Prime
Minister
Details
Build the foundation needed for
low carbon green growth and
clarify the basic principles of
energy policy
December 1987/ Ministry of
Act on the
Knowledge Economy
Promotion of the
Development, Use,
and Difussion of
New and Renewable
Energy
Implement the development of
energy source and converting
environment-friendly energy
structure
Energy Act
March 2006/Ministry of
Knowledge Economy
Prescribe the basic details
for establishment and
implementation of energy policy
and energy related plan
Integrated Energy
Supply Act
December 1991/ Ministry of
Knowledge Economy
Expansion of integrated energy
supply and rational operation of
integrated energy business
Energy Use
Rationalization Act
December 1979/ Ministry of
Knowledge Economy
Enhance the stabilisation of
supply and demand, and rational
use of energy and contribute
to minimize impact of global
warming
Framework Act
on marine fishery
Development
May 2002/Ministry of Land,
Establish the basic principles
Transport, and Maritime Affairs and development direction for
conservation, management,
development and use of the
ocean, and promotion of marine
industry
the Environmental Impact Assessment Act.55 However, the ministry integrated
both of these two environmental review systems into the Environmental
Impact Assessment System.56 The Environment Impact Assessment System
was first introduced in 1977, was implemented with the establishment of the
Environmental Office in 1980, and has been fully operational since 1982. The
preliminary Environmental Review System was reorganised into the Strategic
55Environmental Impact Assessment Act. Act No. 9037.
56This is related to the environmental Impact Assessment Act. Revised Act No. 11019,
4 August 2011, enactment date July 22, 2012. The enforcements are to prepare the
measures to avoid, eliminate or reduce the harmful environmental impact by investigating, estimating and evaluating effects of the related business on the environment
in advance when permitting, authorising, approving, licensing or determining the
implementation plan affecting the environment (item 2, Article 2 of the Environmental
Impact Assessment Act).
the case of korea
643
Environmental Assessment57 and small-scale environmental impact assessment.58
Its penalty provisions for content management were strengthened to prevent a
false or insufficient preparation or consultation. With the recent complete revision,
from high-ranking administration plan to small-scale development plan related
to business development, the Strategic Environmental Assessment has been
incorporated into the system as well that secures sustainable development.
Finally, the Sea Area Utilization Conference59 helps restrict irresponsible use
of the ocean and protect the marine environment. The system requires advance
cooperation with the Minister of Land, Transport, and Maritime Affairs when
reclaiming a public water surface, utilizing a target area, obtaining a fishery
license, and collecting sea aggregates as stipulated in Article 9 of the Marine
Environment Management Act (Consultation on Utilization of Sea Area).60 Also,
for water use over a certain location or area, a review of the impact of designated
sea area utilization must be performed.61 Relevant activities include dredging in
public water, dumping soil or rocks into public water, utilising and developing
marine resources, collecting sea aggregates, and designating a sea aggregate
collection company. Also, an investigation of the potential impact on the marine
environment must be performed by sea users after obtaining the license.62
Policies for the Development of New and Renewable Energy
National Energy Master Plan
The main contents of the National Energy Master Plan (20082030)63 are
i) the trends and outlook of domestic and foreign energy supply; ii) measures for
57The Strategic Environmental Impact Assessment aims to promote the sustainable
development of the land by reviewing the appropriateness and the feasibility of its
location of related plan from an environmental point of view through determining
whether it complies with the environmental protection plan and analysis of alternative setting when establishing the high rank plan that affects on environment (item 1,
Article 2 of the Environmental Impact Assessment Act).
58The small-scale environmental impact assessment is to prepare the environmental
protection measures by investigating, estimating and evaluating the use feasibility of
the location and effects on the environment when implementing the development
business in the area where there is premeditated plan because the area requires environmental protection or it is difficult to develop (item 3, Article 2 of the Environmental
Impact Assessment Act).
59The Sea Area Utilization Conference is stipulated in Chapter IX. Sea Area Utilization
Conference of the Marine Environment Management Act
60Marine Environment Management Act, Article 84.
61Ibid., Article 85.
62Ibid., Article 95.
63As part of the green energy policy prospects, the national government has released the
First National Energy Master Plan in August 2008 creating a target of a 47 percent energy
intensity improvement by 2030 compared with 2006, seeking to reduce 33 percent of
Koreas oil dependency, and trying to increase the share of new and renewable energy
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energy stability, security, supply, and management; iii) measures for the supply
and consumption of environmental friendly energy including new and renewable
energy; iv) the rationalisation of energy use and reduction measures for greenhouse
gas emissions; v) measures for safe energy management; vi) dissemination of
energy-related technology development; vii) training of a specialised energyrelated workforce; viii) international coordination and cooperation of energy policy
and energy-related environmental policy; and ix) the development and use of
domestic natural resources.64
This master plan proposes 10 measures, one of which is the new and renewable
energy development, supply and expansion, and industrialisation of the growth
engine.65 The basic directions of the policy are for new and renewable energy
consumption to account for 11 per cent of total consumption by 2030,66 and to
promote the new and renewable energy industry as a new growth engine. With
the Kyoto Protocol, the importance of new and renewable energy (that is, clean
energy sources) has increased in an era in which both environment and economy
are considered equally important. The new and renewable energy market has also
emerged as a new growth industry. Korea set policy directions that: (1) expand the
sources of new and renewable energy; (2) strengthen the support for bioenergy,
ocean energy, and waste energy supply, which have substantial distribution effects
in the medium term; (3) activate private participation through exploring and
testing various new and renewable energy sources and technology; (4) introduce
market mechanisms and link the mechanisms with clean development businesses;
and, (5) secure the ability to disseminate new and renewable energy markets over
the long term.67 This plan expresses political commitment to promote key areas
that have high potential for market growth. With such a plan and philosophy as a
base, Korea can secure its competitiveness in the new and renewable energy field
as a next-generation growth engine through strategic R&D and differentiated
investment strategy.
Korea is considering various measures to stimulate the consumption of new and
renewable energy and make it a mandatory part of everyday energy consumption
in the long term by establishing an institutional framework for new and
renewable energy expansion. As part of this stimulation package, energy supply
operators will be required to supply a certain percentage of new and renewable
energy. This obligatory new and renewable energy component will be based on
by 10.7 percent. The Second National Energy Master Plan is expected to strengthen the
goals in order to succeed in achieving the goal of GHG emission reduction and also to
build green energy technologies as the new driving force for future growth.
64Energy Act, item 1 Article 6.
65Energy Act, item 1 Article 6.
66Prime Ministers Office and others, First National Energy Master Plan (20082030) (in
Korean), (The Government of Korea, 2008), p. 95.
67Ibid., p. 99.
the case of korea
645
the newly introduced Renewable Portfolio Standard68 for public institutions and
private buildings and will grant subsidies and incentives. An industrialisation
support policy that accounts for the characteristics of each energy source is also
progressing, especially for offshore wind power. The policy promotes and supports
the localisation of such energy development and consumption by targeting small
and medium markets and helping explore exportation of the industry.
The Third Master Plan for New and Renewable Energy Technology
Development, Use, and Supply (20092030)
This plan addresses technology development, its use, supply goals, power production targets, and implementation method (see Article 5, Promotion Act). This
plan has two goals: (1) for new and renewable energy to account for 11 per cent of
total energy consumption by 2030; and, (2) industrialization of the green growth
engine of new and renewable energy. These are also the goals of the National
Energy Master Plan. To achieve these goals, four core strategies were identified:
promotion of industrialisation, expansion of supply, expansion of basic infrastructure, and introduction of the market function.
Some impediments faced by Koreas new and renewable energy development
are low economic feasibility due to high initial investment cost, bias toward
specific energy sources such as waste power and hydropower, vulnerable
technical levels, a weak domestic industrial foundation, and lack of funding.
To overcome such problems, the supply expansion policy for natural renewable energy sources including the next generation of solar, offshore wind, and
ocean energy will receive priority consideration. Ocean energy has great potential
for high demand among new and renewable energy sources. Under the current
plan, ocean energy would account for 4.7 per cent of total energy by 2030
(0 per cent in 2008). Furthermore, the supply structure is expected to be switched
from waste to natural renewable energy, including bioenergy, solar energy, wind
power, and ocean energy.69
The same plan contains goals for the development of ocean energy resources,
practical use of ocean energy technology, and industrialisation of ocean energy.
The short-term goal is to develop key technology for various fields and ocean
energy utilisation technology for coastal zones. For the mid-term goal, the plan
supports the enhancement of key technology and development of large-scale
ocean energy utilisation technology in offshore zones. In the long-term, the goal
68The Renewable Portfolio Standard (RPS) replaces Feed-In Tariff (FIT) system in 2012
similar to newly implemented system in the United States, Japan and U.K. See, Notification of the Ministry of Knowledge Economy, No. 2008296.
69Ministry of Knowledge Economy (MKE)/Republic of Korea, op. cit., The 3rd Promotional Plan for New and Renewable Energy Development, Use and Supply, 20092030
(in Korean), MKE, Ministerial policy report, 14.
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is to increase and promote the economic feasibility of ocean energy development
and to industrialise the large-scale ocean energy resources through the commercialization of ocean energy technology (for example, composite energy technology). A notable addition is support for preparing algae- and seaweed-based
biofuel for commercialisation.
The first commercial tidal power plant was constructed in the western coastal
waters at Sihwa Lake (254 MW). More tidal power plants are planned to be built
at Garorimman (520 MW) by 2025. Tidal current power plants will also be
constructed by 2020 at Uldolmok (90 MW level for common use), Jangjuk Sudo
(150 MW), and Maenggol Sudo (250 MW). Currently, the construction of 500-kW
wave-power plants near Jeju Island (20092011) and testing of wave-power plants
(20112012, Jeju Island, and Ulleung Island) are ongoing.70
Ocean Energy Medium and Long-Term Promotion Proposal
The ocean energy medium- and long-term promotion proposal was prepared in
December 2008 by the Division of Ocean Development of the Ministry of Land,
Transport, and Maritime Affairs. The plan was established to meet the urgent
need for an active development plan for ocean energy resources to achieve the
new and renewable energy supply goal.71 When the national energy master
plan set the goal of 11 per cent coverage by new and renewable energy by 2030,
ocean energy was not specifically included as one of the five key new and
renewable energy fields.72 This plan evaluates ocean energy R&D in Korea
and compares the national ocean energy development technology level with
levels of advanced countries.
The plan sets three goals: (1) to ensure research infrastructure through improvement of the R&D system; (2) to ensure ocean energy efficiency through
expansion of R&D investment; and, (3) to ensure the creation and promotion of
high value-added marine industry. Four basic strategies toward achieving these
goals include: (1) the promotion of R&D investment efficiency; (2) examination of
the composition of R&D investment portfolios; (3) maintenance of ocean energy
infrastructure and strengthening joint research; and, (4) promotion of industry
competitiveness related to ocean energy. However, this plan does not reflect
changes in technical trends in the field of ocean energy or address various aspects
of the emerging new and renewable energy technology. Furthermore, different
market trend analysis reports in the field of ocean energy were analysed by the
Ministry of Knowledge Economy in 2007 and by the Ministry of Land, Transport,
and Maritime Affairs. In other words, although various agencies share the goal of
70Ibid., 47.
71Ministry of Land, Transport and Maritime Affairs, Ocean Energy Medium and Longterm Promotion Proposal, (Government of Korea, 2008), 34.
72Solar, hydrogen fuel, wind power, IGCC (integrated gasification combined cycletechnology that turns coal into gas synthesis gas, syngas) + bioenergy.
the case of korea
647
developing ocean energy, their policy directions may differ. It would be beneficial
for policymakers to have the same goals and policy directions and to make the
same policy decisions in the national interest.
Issues and Direction of National Policy for Ocean Energy
Development
Plan for Equitable Support According to Reclassification of Energy Sources
Waste energy is a target of mandatory recycling in accordance with the Resource
Recycle Act. This type of energy is also considered to promote development, use,
and supply as stipulated in the New and Renewable Energy Act. In 2007, actual
waste energy accounted for 77 per cent of the total new and renewable energy in
Korea, the highest component in the category of new and renewable energy.
This high amount partly reflects the regulations and promotional emphasis
by two different laws. However, such emphasis on waste energy development
may hinder the development of other forms of new and renewable energy. One
solution would be to reclassify waste energy into a third category of energy rather
than prescribing it as a new and renewable energy as in the current New and
Renewable Energy Act.73
Feed-In Tariff and Renewable Portfolio Standard
The FIT system subsidises the differences between the base price and power
trade (difference in generating electricity). If the power-trading price of electricity supplied from 11 energy sources under the current new and renewable energy,
such as solar power, wind power, hydropower, tidal current power, landfill gas
(LFG) power, waste power, and fuel cells, is lower than the base price set by the
Minister of Knowledge Economy, the difference is subsidised. Because electricity
produced by new and renewable energy sources cannot yet compete economically with traditional power sources due to high production costs, the FIT system
plays an important role in promoting and facilitating the new and renewable
energy industry. In 2002, the FIT system, which had proven effective in some
European nations such as Germany, was introduced in Korea. At that time, Korea
had joined the new and renewable industrial nations as a relative latecomer and
anticipated a strong promotional effect of the FIT on its new and renewable
energy sector as a short-term objective. Since the government guarantees pro
fits for a certain time period (15 to 20 years) by purchasing the electricity at a
fixed price, the FIT helps ensure the safety of investments, thus allowing small to
medium businesses to develop.
73Kim, Study on New and Renewable Energy Related Law Improvement, 118.
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seong wook park and charity m. lee
The FIT system enables small-sized electric power businesses, such as private
homes or whole villages with a small capacity(e.g. <100kW) civil power plant,
village energy plant, or citizen-invested solar cooperative, to become a voluntary
energy conversion movement by citizens and communities. This movement may
also result in local job creation.74 However, despite these advantages, the FIT
system has been criticized in that the total supply of renewable energy source is
difficult to predict. Since it is not easy to manage the amount consumed, it is not
efficient to increase the new and renewable energy supply rapidly in a short period
under this current FIT system. Therefore, the government is moving toward using
the Renewable Portfolio Standard (RPS) to protect against becoming an Annex 1
country according to the 2013 Climate Change Conference of the Parties and to
efficiently manage the supply rate of renewable energy sources.
The RPS is a supply policy requiring operators in electricity power industries
to generate a certain amount of electricity with new and renewable energy. If the
RPS is implemented, under the current plan, obligations can be certified through
the Renewable Energy Certificate (REC) from the government. This certificate is
issued to businesses as proof that some electricity generated from the facility
is from a new and renewable energy source. With this REC, the facility can sell or
buy energy from the certified market. If electrical power businesses do not meet
this obligation, they have to pay a penalty corresponding to 1.5 times the average price traded in the REC market. However, such obligations might lead to the
formation of large-scale or centralised energy businesses instead of the intended
small to medium sized businesses, which could result in the unintended effect
of new and renewable energy development harming rather than protecting the
environment.
Support for Securing New and Renewable Power Plant Locations
Securing locations for new power plants can be challenging. To work out
difficulties such as opposition from the local residents, support is provided by
sharing a portion of the electricity sales. Support for areas surrounding new and
renewable power facilities includes basic supportive projects (for example, income
enhancement, improving public facilities and schools), as well as electricity-use
fee assistance, loans and welfare assistance, provision of incentives to attract
other businesses, special local community-support projects, general public
relations projects, and other small service projects for rural communities within
5 km of a plant facility.75
74Green climate energy union. Abolishing FIT and introducing RPS (in Korean), http://
blog.naver.com/1102 shj/140087864337.
75See, Act on Assistance to Electric Power Plant-Neighboring Areas, Article 2. Also see
Enforcement Decree of the Act on Assistance to Electric Power Plant-Neighboring Areas,
item a, no 2, clause 1, Article 2.
the case of korea
649
The area surrounding a facility was originally defined as a rural townships and
villages of smallest local administrative districts within 5 km of a plant facility
either on the mainland or islands. The law was later revised so that such support
could also be given for tidal power facilities and their surrounding areas. However,
because this support involves financial assistance, frictions often arise among
local residents regarding neighbors who receive and do not receive payments.76
Establishment of a New Steering Agency
The first national energy master plan involves the Prime Ministers Office, the
Ministry of Strategy and Finance, the Ministry of Education, Science and Technology, the Ministry of Foreign Affairs and Trade, the Ministry of Knowledge
Economy, the Ministry of Environment, and the Ministry of Land, Transport, and
Maritime Affairs. Thus, seven government units are involved in energy policy.
However, given the importance of energy, it is important for national development that one agency be given authority to manage energy policies.
Currently, for new and renewable energy development in Korea, the Ministry of Education, Science and Technology handles basic research, the Ministry of
Environment is responsible for waste energy, the Ministry of Land, Transport, and
Maritime Affairs manages ocean energy, and the Ministry of Knowledge Economy
takes charge of energy development for fields such as solar and fuel cell development. As mentioned above, the Ministry of Knowledge Economy is the main government agency responsible for most of the energy-related laws and regulations.
In the case of ocean energy, although its importance is increasing, support
related to technology R&D is provided solely from the Ministry of Land, Transport, and Maritime Affairs. Furthermore, because the main government agency
that supports the energy-related laws is the Ministry of Knowledge Economy,
obtaining support from other ministries is difficult, which limits the full development of ocean energy. Thus, a new government agency is needed (for example, a
Ministry of Energy) to develop new and renewable energy over the long term.
Conclusions
The national interest in new and renewable energy has emerged from concerns
over fossil fuel use and the environmental crisis of climate change. Fossil fuel
makes up 85 per cent of total energy worldwide. Increased consumption is depleting fossil fuel resources and increasing greenhouse gas emissions, leading to climate change and global warming. Under these energy and environmental crises,
new and renewable energy offers a solution to reduce greenhouse gas emissions
76Shiwha tidal power plant, Compensation conflicts for surrounding area, http://blog
.daum.net/song83do/13726634.
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seong wook park and charity m. lee
and secure future energy supplies. Furthermore, new and renewable energy is a
green industry that can provide a new national growth engine.
New and renewable energy use proportions in Korea have not yet reached half
of the levels in the United States, Japan, or Germany. However, Koreas goal by
2030 is nearly equal to levels in those countries. To achieve its goals, the Korean
government set an overall target in the National Energy Master Plan and is
striving to develop new technologies to encourage new and renewable energy
development, use, and supply.
According to the LOSC, for ocean energy development, coastal States can
construct and authorise the construction of ocean energy facilities as long as
those facilities do not interfere with the right of navigation of other countries.
Koreas laws relating to new and renewable energy also promote ocean energy
development as well as protection of the ocean environment. Basic principles for
energy policy are prescribed in the Framework Act. Energy policy and related plans
are also defined in the Energy Act. The Promotion Act describes ocean energy as
a wide range of renewable energy sources and allows ocean energy development
to be conducted as part of national policy. The Environmental Impact Assessment
Act and Marine Environment Management Act also require protection of the
ocean environment, environmental impact assessment, and consultation on sea
area use, depending on the size of ocean energy facilities.
Notably, within the Master Plan of New and Renewable Energy Technology
Development, Use and Supply, the current waste energy-based supply structure is
being converted to a natural renewable energy-based structure (for example, using
bioenergy, solar energy, wind power, and ocean energy). It is very encouraging
that ocean energy is a category in the new and renewable energy field. However,
for ocean energy development to play a role in the new and renewable
energy field, some expectations will need to be lowered including technology
development, environmental impact, energy delivery efficiency but especially in
terms of development cost. The technology is slow to develop and harnessing the
energy is not easy, and most of all, during the present economically difficult era,
finding sufficient money to invest to these alternative energy sources is not an
easy alternative to choose compare to the current power sources.
Ocean energy resources are not yet used as much as other renewable resources
for a number of reasons. Ocean energy was a relatively late addition to the
renewable energy field. The ocean environment can be harsh and difficult to
access. Ocean energy density is lower than that of other energy sources, requiring
relatively large equipment to extract and convert ocean energy. Furthermore,
when electricity is generated with ocean energy, the generated power often faces
problems of output variability and transmission and distribution difficulties
with current technology. However, the ocean offers the advantage of possible
combined power complex system development using two or more energy sources
at the same energy extracting point. Tidal power, tidal current power, and wave
power are abundant natural resources and as new technologies are developed,
the case of korea
651
these resources are expected to have economic and technical advantages over
others. However, environmental and efficiency problems remain to be solved.
To help develop new and renewable energy sources from the ocean in Korea,
continuous investment is essential, especially for technological development, based
on the 3rd Master Plan of New and Renewable Energy Technology Development,
Use and Supply. In addition, based on these investments, localisation should
continue for the key technologies to increase economic feasibility and sustainable
technology development that minimise the impact on the ocean environment.
chapter Twenty-Nine
Exploiting the Oceans for Climate Change Mitigation:
Case Study on Ocean Fertilisation
Karen N. Scott*
Introduction
Climate change constitutes one of the greatest, if not the greatest, threat to the
health of our oceans. The average temperature of the oceans has increased down
to a depth of 3,000 metres1 and 2007 marked the warmest surface temperature
recorded so far.2 Higher ocean temperatures are predicted to lead to changes in
salinity levels, which in turn are likely to affect rainfall and monsoon patterns.3
The most visible impact of a warmer ocean can be seen in relation to coral reefs
and the phenomena known as coral bleaching.4 Ocean acidification is often
referred to as the other climate change problem, and it is estimated that ocean
acidity has increased by thirty per cent since the beginning of the Industrial
Revolution.5 It is predicted that ocean acidity could increase by 150 per cent by
20506 and that this is likely to impact negatively on calcifying marine organisms
as well as coral and coastal defences.7
*Professor in Law, University of Canterbury, New Zealand.
1 Rajendra Pachauri and Andy Reisinger (eds.), Climate Change 2007: Synthesis Report
(Contribution of Working Groups I, II and III to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change) (Geneva: IPCC, 2007), 30.
2Ian Allison, Nathan Bindhoff, Robert Bindshadler et al., The Copenhagen Diagnosis (Sydney: CCRC, 2009), 35.
3Ibid.
4Barbara E. Brown, Coral bleaching: causes and consequences, Coral Reefs, 16 (Suppl.)
(1997): S129S138.
5Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts
of Ocean Acidification on Marine Biodiversity (Technical Series No. 46) (Montreal: Secretariat of the Convention on Biological Diversity, 2009), 9.
6Ibid.
7Scott C. Doney, William S. Balch, Victoria J. Fabry and Richard A. Feely, Ocean Acidification: A Critical Emerging Problem for the Oceans Oceanography, 22 (2009): 1625, 18.
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karen n. scott
However, the oceans are increasingly seen as a potential saviour, protecting
humankind from the worse ravages of climate change. The oceans comprise the
largest natural reservoir of carbon dioxide and have accumulated approximately
one third of the anthropogenic carbon dioxide emitted from 1750 to the present
day.8 Carbon dioxide is transferred from the surface of the ocean to deep water by
means of ocean circulation through the biological and solubility pumps.9 Scientists
and, increasingly, engineers have postulated that if either or both of these pumps
could be enhanced, in order to draw down greater quantities of carbon dioxide,
this would operate as an effective climate change mitigation measure. Options
designed to increase ocean sequestration of carbon dioxide include: the enhancement of the biological pump by means of ocean fertilisation;10 the enhancement
of the solubility pump via an increase in the efficiency of down-welling currents
using water, air or ice;11 and increasing ocean alkalinity through the addition of
limestone powder or soda ash,12 with a view to enhancing the oceans capacity to
absorb carbon dioxide whilst simultaneously reducing the effects of ocean acidification.13 Collectively, these climate change mitigation strategies are categorised
as geo-engineering, which is defined as the intentional large-scale manipulation of the planetary environment.14 Once more suited to the realms of science
fiction as opposed to science fact, geoengineering is increasingly regarded as a
legitimate field for scientific enquiry15 and has been subject to serious debate in
8Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts
of Ocean Fertilization on marine Biodiversity (Technical Series No. 45) (Montreal: Secretariat of the Convention on Biological Diversity, 2009), 9 (CBD Fertilization Synthesis).
9Ibid.
10See generally, Aaron L. Strong, John J. Cullen and Sallie W. Chisholm, Ocean Fertilization: Science, Policy and Commerce, Oceanography, 22/3 (2009): 236261; Theme
Section, Implications of Large-scale Iron Fertilization of the Oceans, Marine Ecology
Progress Series, 364 (2008): 213309 and the references cited in the second part of this
chapter.
11S. Zhou and Peter C. Flynn, Geoengineering Downwelling Ocean Currents: A Cost
Assessment, Climatic Change, 71 (2005): 203220.
12L. D. D. Harvey, Mitigating the atmospheric CO2 increase and ocean acidification by
adding limestone powder to upwelling regions, Journal of Geophysical Research, 113
(2008): C04028; Haroon S. Kheshgi, Sequestering Atmospheric Carbon Dioxide by
Increasing Ocean Alkalinity, Energy, 20 (1995): 915922.
13Jennie C. Stephens and David W. Keith, Assessing geochemical carbon management,
Climatic Change, 90 (2008): 217242, 228.
14David W. Keith, Geoengineering the Climate: History and Prospect, Annual Review of
Energy and the Environment, 25 (2000): 245284, 247.
15Geoengineering has provided the subject for almost as many scientific and other academic papers in the last three years as over the last thirty years.
exploiting the oceans for climate change mitigation
655
recent reports released by the Royal Society,16 the United Kingdom17 and United
States governments18 and several international organisations.19 As a climate
change mitigation measure, geoengineering is slated for inclusion within a designated chapter in the Fifth Inter-governmental Panel on Climate Change (IPCC)
Assessment Report due to be published in 2013 and 2014.
This chapter will explore the extent to which modern oceans governance is
capable of responding to proposals to exploit the oceans for climate change mitigation purposes. It will focus on ocean fertilisation as the strategy which has
thus far received the greatest attention from scientists, policy-makers and international lawyers. The chapter will also explore the current regulatory regime for
ocean fertilisation, drawing on the United Nations Convention on the Law of the Sea
(LOSC),20 the evolving regulatory framework under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London
Convention),21 the Protocol to the London Dumping Convention (London Protocol)22
and general principles of international environmental law. The limits of the current
regime are demonstrated in the final part of this chapter, which sets out three fundamental governance challenges associated with not only ocean fertilisation but
16The Royal Society (UK), Geoengineering the climate. Science, governance and uncertainty (Royal Society Policy Document 10/09/2009).
17See the Fourth Report of Session 20082009 of the House of Commons, Innovation,
Universities, Science and Skills Committee, Engineering: turning ideas into reality, Volume 1 (HC 501); Government Response to the Committees Fourth Report (House of
Commons Innovation, Universities, Science and Skills Committee, Engineering: turning ideas into reality: Government Response to the Committees Fourth Report (Fifth Special Report of Session 200809, HC 759); House of Commons Science and Technology
Committee, The Regulation of Geoengineering (Fifth Report of Session 200910) (HC
221); Government Response to the House of Commons Science and Technology Committee
5th Report of Session 200910: The Regulation of Geoengineering Cm 7936.
18 Kelsi Bracmort, Richard K. Lattanzio and Emily Barbour, Geoengineering: Governance
and Technology Policy (Congressional Research Service Report for Congress, R41371,
2010); Chairman Bart Gordon, Committee on Science and Technology, US House of
Representatives, Engineering the Climate: Research Needs and Strategies for International Coordination Report (111 Congress, Second Session, October 2010).
19 See, the Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the
Impacts of Ocean Fertilization on Marine Biodiversity (Montreal, Technical Series No. 45,
2009), 9 and Doug Wallace, Cliff Law, Philip Boyd et al., Ocean Fertilization. A Scientific
Summary for Policy Makers (2010 IOC/UNCESO, Paris) (OOC/BRO/2011/2).
20United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
21 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature 29 December 1972, entered into force 30 August 1975, 11 ILM
1294 (London Convention).
22Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter, opened for signature 7 November 1996, entered into force 24 March
2006, 36 ILM 1 (London Protocol).
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karen n. scott
also geoengineering more generally. First, to what extent should the precautionary approach be applied as a constraint to ocean fertilisation? Second, is formal
regulation at such an early stage in its development an appropriate response to
ocean fertilisation? And finally, to what degree should ocean fertilisation regulation be integrated with the governance of other geoengineering activities
including terrestrial and atmospheric optionsand can integrated governance
be achieved using the current regulatory framework?
Ocean Fertilisation as a Climate Change Mitigation Measure
The oceans biological pump, sometimes described more euphemistically as its
invisible forest,23 provides one of two mechanisms of transferring carbon dioxide from the surface of the ocean to its depths, where it remains sequestered on
a long-term although not permanent basis.24 Phytoplankton is essential to the
effective operation of the biological pump, but in regions such as the North and
Equatorial Pacific and the Southern Ocean, plankton biomass is low, owing to
a relative absence of key missing nutrients such as iron.25 In 1990, John Martin
suggested that iron dust artificially added to infertile regions would stimulate
algal blooms, leading to an increased uptake in carbon dioxide, which would
ultimately be transported into the deep ocean and sequestered for hundreds of
years.26 Although research to date has largely concentrated on iron fertilisation,
alternative fertilising agents such as volcanic ash,27 phosphate28 and urea29 have
23Paul G. Falkowski, The Oceans Invisible Forest, Scientific American, 287 (2002): 56, 56.
24Mark Denny, How the Ocean Works: An Introduction to Oceanography (Princeton: Prince
ton University Press, 2011), Chapter 5.
25Hein J. W. de Baar and Phillip W. Boyd, The Role of Iron in Plankton Ecology and Carbon Dioxide Transfer of the Global Oceans, in Roger B. Hansen, Hugh W. Ducklow and
John G. Field (eds.), The Changing Ocean Carbon Cycle: A Midterm Synthesis of the Joint
Global Ocean Flux Study (Cambridge: Cambridge University Press, 2000), 107; Robert
A. Duce and Neil W. Tindale, Atmospheric Transport of Iron and Its Deposition in the
Ocean, Limnology & Oceanography, 36 (1991): 1,715.
26John H. Martin, Glacial-Interglacial CO2 Change: The Iron Hypothesis, Paleoceanography, 5 (1990): 113. See also, Nicolas Cassar, Michael L. Bender, Bruce A. Barnett
et al., The Southern Ocean Biological Response to Aeolian Iron Deposition, Science,
317 (2007): 10671070 and P. W. Boyd, J. Jickells, C. S. Law et al., Mesoscale Iron
Enrichment Experiments 19932005: Synthesis and Future Directions, Science, 315
(2007): 612617.
27Svend Duggen, P. Croot, Ulrike Schacht et al., Subduction zone volcanic ash can fertilize
the surface ocean and stimulate phytoplankton growth: Evidence from biogeochemical
experiments and satellite data, Geophysical Research Letters, 34 (2007): L01612.
28Richard S. Lampitt, E. P. Achterberg, T. E. Anderson et al., Ocean fertilization: a potential means of geoengineering? Philosophical Transactions of the Royal Society A, 366,
(2008): 3,9193,945, 3,923.
29Julia Mayo-Ramsay, Environmental, legal and social implications of ocean urea fertilization: Sulu Sea example, Marine Policy, 34 (2010): 831835.
exploiting the oceans for climate change mitigation
657
also been suggested. Moreover, one proposal is designed to pump nutrient rich
waters from the oceans depths using a large number of vertical pipes rather than
the addition of artificial nutrients from the surface.30
Thirteen small scale iron fertilisation experiments have been carried out to
date,31 but whilst the growth of phytoplankton has been universally enhanced,32
the potential effectiveness of fertilisation as a climate change mitigation measure
is disputed.33 In particular, some scientists suggest that low levels of plankton
biomass in the Southern Ocean and Pacific regions may be caused by factors
such as limited light,34 seasonality, oxygen production,35 grazing by microzooplankton36 and the presence of invasive species rather than by an absence of iron
or other missing nutrients. Furthermore, there is insufficient evidence to prove,
and no means to verify,37 that any of the carbon dioxide drawn down to the surface of the ocean has actually been transported to, and sequestered within, the
30James E. Lovelock and Chris G. Rapley, Ocean pipes could help the Earth to cure
itself, Nature, 449 (2007): 403. See also, Andrew Yool et al., Low efficiency of nutrient
translocation for enhancing oceanic uptake of carbon dioxide, Journal of Geophysical
Research, 114 (2009): C08009.
31Doug Wallace, Cliff Law, Philip Boyd et al., Ocean Fertilization. A Scientific Summary for
Policy Makers (Paris: IOC/UNCESO, 2010) (OOC/BRO/2011/2), 3.
32Lampitt et al., Ocean fertilization: a potential means of geoengineering? 3928.
33For a discussion of the results of the key experiments to date see Ken O. Buesseler, John
E. Andrews, Stephen M. Pike et al., The Effects of Iron Fertilization on Carbon Sequestration in the Southern Ocean, Science, 304 (2004): 414417; Philip Boyd, A mesoscale
phytoplankton bloom in the polar Southern Ocean stimulated by iron fertilization,
Nature, 407 (2000): 695702; Richard E. Zeebe and David Archer, Feasibility of ocean
fertilization and its impact on future atmospheric CO2 levels, Geophysical Research
Letters, 32 (2005): L09703; Stphane Blain, Bernard Ququiner, Leanne Armand et al.,
Effect of natural iron fertilization on carbon sequestration in the Southern Ocean,
Nature, 446 (2007): 1,0701,074; and Raymond T. Pollard, Ian Salter, Richard J. Sanders
et al., Southern Ocean deep-water carbon export enhanced by natural iron fertilization, Nature, 457 (2009): 577580.
34B. Greg Mitchell, Eric A. Brody, Osmund Holm-Hansen et al., Light Limitation of Phytoplankton Biomass and Macronutrient Utilization in the Southern Ocean, Limnology &
Oceanography, 36 (1991): 1,6621,677; Konstantin Zahariev, James R. Christian and Kenneth L. Denman, Preindustrial, historical, and fertilization simulations using a global
ocean carbon model with new parameterizations or iron limitation, calcification and
N2 fixation, Progress in Oceanography, 77 (2008): 5682, 78.
35Tsung Hung Peng and Wallace S. Broecker, Factors Limiting the Reduction of Atmospheric CO2 by Iron Fertilization, Limnology & Oceanography, 136 (1991): 9191927.
36Francisco P. Chavez, Kurt R. Buck, K. H. Coale et al., Growth Rates, Grazing, Sinking,
and Iron Limitation of Equatorial Pacific Phytoplankton, Limnology & Oceanography,
36 (1991): 18161833; Bruce W. Frost, The Role of Grazing in Nutrient-Rich Areas of the
Open Sea, Limnology & Oceanography, 36 (1991): 1,6161,630.
37See, John J. Cullen and Phillip W. Boyd, Predicting and verifying the intended and
unintended consequences of large-scale ocean iron fertilization, Marine Ecology Progress Series, 364 (2008): 295301.
658
karen n. scott
deep ocean.38 The biological and chemical responses to fertilisation have been
described as variable and difficult to predict39 and possible impacts include
increased ocean acidification, the disruption of marine ecosystems,40 eutrophication and anoxia,41 the creation of toxic harmful algal blooms,42 the generation
of an increase in the emission of other greenhouse gases such as nitrous oxide43
and a decrease in the effectiveness of the Southern Ocean methyl bromide sink
leading to a delay in the recovery of the ozone layer.44 Nevertheless, at the 2011
International Scientific Conference on Problems of Adaptation to Climate Change
(PACC), sponsored by the Russian Academy of Sciences together with the WMO,
UNEP and UNESCO, and attended by almost 700 delegates, ocean fertilisation
was ranked as the third preferred geoengineering option.45
38See, Anand Gnanadesikan and Irina Marinov, Export is not enough: nutrient cycling
and carbon sequestration, Marine Ecology Progress Series, 364 (2008): 289294 and
Hein J. W. de Baar, Loes J. A. Gerringer, Patrick Laan et al., Efficiency of carbon
removal per added iron in ocean iron fertilization, Marine Ecology Progress Series, 364
(2008): 269282.
39Doug Wallace, Cliff Law, Philip Boyd et al., Ocean Fertilization 7. For an overview of
the measured side-effects from the thirteen experiments to date see CBD Fertilization
Synthesis, 2335. Victor Smetacek and S. W. A. Naqvi, scientists involved in the controversial LohaFEX joint German and Indian fertilization experiment in 2009, argue that
the suggested side effects are overstated and based on worst case scenarios. See, Victor
Smetacek and S. W. A. Naqvi, The next generation of iron fertilization experiments
in the Southern Ocean, Philosophical Transactions of the Royal Society A, 366 (2008):
3,9473,967, 3,947.
40Aaron Strong, Sallie Chisholm, Charles Miller et al., Ocean fertilization: time to move
on, Nature, 461 (2009): 347348, 347. See also, Kenneth L. Denman, Climate change,
ocean processes and ocean iron fertilization, Marine Ecology Progress Series, 364
(2008): 219225.
41Lampitt et al., Ocean fertilization: a potential means of geoengineering? 3,930.
42Charles G. Trick, Brian D. Bill, William P. Cochlan et al., Iron enrichment stimulates
toxic diatom production in high-nitrate, low-chlorophyll areas, PNAS, 107 (2010):
5,8875,892 at 5,587.
43C. S. Law, Predicting and monitoring the effects of large-scale ocean iron fertilization
on marine trace gas emissions, Marine Ecology Progress Series, 364 (2008): 283288.
See also, Mark G. Lawrence, Side Effects of Oceanic Iron Fertilization, Science, 297
(2002): 1,993 and Jed A. Furhrman and Douglas G. Capone, Possible biogeochemical
consequences of ocean fertilization, Limnology and Oceanography, 36 (1991): 1,951
1,959.
44Oliver W. Wingenter, Changing concentrations of CO, CH4, C5H8, CH3Br, CH3l, and
dimethyl sulphide during the Southern Ocean Iron Enrichment Experiments, PNAS
101 (2004): 85378541.
45The conference summary is available online at: http://www.preventionweb.net/
files/24436_summary froloveng.pdf.
exploiting the oceans for climate change mitigation
659
International Law and Ocean Fertilisation
As an activity that involves the deliberate discharge into, or placement of matter
within, the oceans, the regime with the most unambiguous mandate to regulate
ocean fertilisation is the London Convention and London Protocol. Responding to
an increase in public concern over fertilisation activities, the States party to the
London Convention and London Protocol issued, in 2007, a statement of concern
regarding ocean iron fertilisation, and recommended that all proposals be evaluated carefully in order to ensure that they are not contrary to either instrument.46
At the next meeting of the parties, in 2008, the States formally agreed that the
scope of the London Convention and London Protocol covered ocean fertilisation
activities.47 They adopted Resolution LC.LP.1 (2008) on the Regulation of Ocean
Fertilization, under which they determined that ocean fertilisation for legitimate scientific research should be regarded as placement for a purpose other
than mere disposal under the London Convention/London Protocol, and that such
activities should be assessed on a case-by-case basis. Resolution LC.LP.1 (2008)
further stipulated that fertilisation activities which do not constitute legitimate
scientific research are not exempt from the definition of dumping under the London Convention/London Protocol and should not be currently permitted.
In light of its potential impacts on marine biodiversity, it is unsurprising that
the parties to the Convention on Biological Diversity (CBD)48 have also taken an
interest in ocean fertilisation. The parties adopted Decision IX/16 in 2008, which
requested States take action to ensure that:
ocean fertilization activities do not take place until there is an adequate scientific
basis on which to justify such activities, including assessing associated risks, and a
global, transparent and effective control and regulatory mechanism is in place for
these activities; with the exception of small scale scientific research studies within
coastal waters.49
Although at this stage the parties to the CBD appear content to leave the development of a regulatory mechanism to the London Convention and London Protocol,
they have maintained an interest in climate-related geo-engineering, adopting
Decision X/33 in 2010, calling on States to
462007 Statement of concern regarding iron fertilization of the oceans to sequester CO2 (LC.
LP.1/Circ. 14 (13 July 2007).
47Resolution LC.LP.1 (2008) on the Regulation of Ocean Fertilization (adopted on 31 October 2008).
48Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993, 1760 UNTS 79 (CBD).
49CBD Decision IX/16 Biodiversity and Climate Change adopted by the conference of the
parties at the ninth meeting, 1930 May 2008, Bonn, Germany at paragraph C.4.
660
karen n. scott
ensure in the absence of science based, global, transparent and effective control and
regulatory mechanisms for geo-engineering, and in accordance with the precautionary approach and Article 14 of the Convention, that no climate-related geo-engineering activities that may affect biodiversity take place, until there is an adequate
scientific basis on which to justify such activities and appropriate consideration of
the associated risks for the environment and biodiversity and associated social, economic and cultural impacts, with the exception of small scale scientific research studies that would be conducted in a controlled setting in accordance with Article 3 of
the Convention, and only if they are justified by the need to gather specific scientific
data and are subject to a thorough prior assessment of the potential impacts on the
environment.50
More generally, as an activity that creates a significant risk of harm to the marine
environment, ocean fertilisation is also subject to the regulatory framework developed in Parts XII and XIII of the LOSC, as well to the various norms designed to
protect the environment and to prevent pollution that form part of the corpus of
international environmental law.
Ocean Fertilisation for Climate Change Mitigation and the Dumping Regime
Where substances such as iron, phosphate or urea are deliberately introduced
into the oceans, the dumping regime comprising the London Convention and the
London Protocol is directly applicable.51 As noted above, Resolution LC.LP.1 (2008)
stipulates that fertilisation for purposes other than legitimate scientific research
is deemed to be contrary to the aims and objectives of the London Convention and
50CBD Decision X/33 Biodiversity and Climate Change adopted by the conference of the
parties at the tenth meeting, 1829 October 2010, Nagoya, Japan, at paragraph 8(w).
51 In contrast to geoengineering more generally, the legal commentary on ocean ferti
lization is relatively extensive. See in particular, Christine Bertram, Ocean iron
fertilization in the context of the Kyoto protocol and the post-Kyoto process, Energy
Policy, 38 (2010): 1,1301,139; David Freestone and Rosemary Rayfuse, Ocean iron fertilization and international law, Marine Ecology Progress Series, 364 (2008): 227233;
Kerstin Gssow, Andreas Oschlies, Alexander Proelss et al., Ocean Iron fertilization:
Why further research is needed, Marine Policy, 34 (2010): 911918; Rosemary Rayfuse,
Drowning our Sorrors to Create a Carbon Free Future? Some International Legal Considerations Relating to Sequestering Carbon by Fertilizing the Oceans, UNSW Law Journal, 14 (2008): 919930; Rosemary Rayfuse, Mark G. Lawrence and Kristina M. Gjerde,
Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Seas
Uses, International Journal of Marine and Coastal Law, 23 (2008): 297326; Philomene
Verlaan, Geo-engineering, the Law of the sea, and Climate Change, Carbon and Climate Law Review, 4 (2009): 446458; Philomne Verlaan, Current Legal Developments:
London Convention and London Protocol, International Journal of Marine and Coastal
Law, 26 (2011): 185194; Robin Warner, Preserving a Balanced Ocean: Regulating
Climate Change Mitigation Activities in Marine Areas beyond National Jurisdiction,
Australian International Law Journal, 14 (2007): 99120; Robin Warner, Marine Snow
Storms: Assessing the Environmental Risks of Ocean Fertilization, Carbon and Climate
Law Review, 4 (2009): 426436.
exploiting the oceans for climate change mitigation
661
London Protocol. However, whilst undoubtedly persuasive, this Resolution is not
in and of itself legally binding.52
Dumping is defined under both the London Convention and the London Protocol as any deliberate disposal at sea of wastes or other matter from vessels,
aircraft, platforms or other man-made structures at sea.53 Whilst iron, phosphate and urea undoubtedly constitute other matter it is open to debate as to
whether they are disposed of, given that the purpose of their introduction into
the marine environment is to create an algal bloom and/or to aid the process of
deep-ocean carbon dioxide sequestration. Moreover, both the London Convention and the London Protocol deliberately exclude from the definition of dumping placement of matter for a purpose other than the mere disposal thereof,
provided that such placement is not contrary to the aims of the London Convention or London Protocol.54 It is this exception which is currently being relied
upon to permit fertilisation for legitimate scientific purposes.55 The large-scale
execution of ocean fertilisation for climate change mitigation purposes might be
characterised as placement of matter for a purpose other than the mere disposal
thereof, in which case it would be excluded from the definition of dumping and,
accordingly, the controls on dumping under the London Convention and London
Protocol. However, placement must be compatible with the aims of the
London Convention and London Protocol in order to be so-classified. Both the London Convention and the London Protocol aim to effectively control all sources of
pollution of the marine environment as their overall objective.56
To the extent that ocean fertilisation leads to, or potentially leads to, significant marine pollution, it should arguably be considered incompatible with the
aims of the London Convention and London Protocol and, consequently, excluded
from the placement for another purpose exception. Irrespective of the purpose
behind introducing iron, phosphate or urea into the marine environment as a
climate change mitigation measure, the iron, phosphate or urea has undoubtedly
been abandoned with no intention of recovery and, consequently, it might be
argued that it is reasonable and natural to interpret the term disposal, which
is not defined in either the London Convention or the London Protocol, to cover
abandonment.57 An alternative although rather more complex interpretation of
52It should also be noted that this resolution does not address other geoengineering
options that involve the artificial addition of substances to the marine environment
such as calcium hydroxide (lime) or calcium carbonate, substances identified as possessing the potential to enhance the solubility pump or to counter ocean acidification.
53London Convention, Article III(1)(a)(i); London Protocol, Article 1.4.1.1.
54London Convention, Article III(1)(b)(ii); London Protocol, Article 1.4.2.2.
55Ocean fertilization for legitimate scientific research purposes will be discussed in Part
III(b), below.
56London Convention, Article I; London Protocol, Article 2.
57This interpretation is supported by Rayfuse, Lawrence and Gjerde, Ocean Fertilisation
and Climate Change 312.
662
karen n. scott
the definition of dumping emphasises the ultimate aim of ocean fertilisation,
which is the disposal of carbon dioxide, and argues that this aim provides the
necessary link to classify fertilisation activities as dumping.58
Under the London Convention, substances listed in Annex I may not be dumped
whilst Annex II substances may be dumped subject to special permission. All
other substances may be dumped in accordance with a general permit.59 Currently, iron, phosphate and urea do not appear to be listed in either Annexes I or
II. Annex II includes scrap metal but this is unlikely to include iron filings, which
are used for iron fertilisation. However, it is worth noting that materials
which, though of a non-toxic nature, may become harmful due to the quantities
in which they are dumped, or which are liable to seriously reduce amenities are
identified in Annex II. It is highly likely that the quantities of iron, phosphate or
urea needed for climate change mitigation are such to render them harmful, in
which case, a special permit must be sought prior to dumping. If this is not the
case, the introduction of iron, phosphate and urea for ocean fertilisation purposes
would appear to require authorisation through the general permit system only.
By contrast, the London Protocol introduces a reverse listing approach to dumping and permits only those substances listed in Annex I to be dumped subject to
a special permit.60 There is provision in Annex I for the dumping of bulky items
comprising iron but again, this is very unlikely to be considered applicable to
the iron filings used in iron fertilisation. Annex I also permits inert, inorganic,
geological material to be dumped (subject to a permit), and key to the question
of whether iron would be covered by this exclusion, is the definition of inert.
The London Convention Guidelines requires material categorised as inert to be
essentially chemically unreactive.61 In fact, there is little consensus as the definition of inert in the scientific community and different disciplines take different
approaches. Whilst chemists generally take a strict approachthere must be
no possibility of a chemical reactionother scientists focus on the toxicity of
the substance and assess inertness in a relative sense.62 The London Convention
Guidelines appear to support the latter approach, and stipulate that:
key factors in determining if a proposed material is inert are knowledge of the materials constituents, including any potential contaminants, and what if any, reactions
58This argument has been developed by Freestone and Rayfuse, Ocean iron fertilization
and international law, 229.
59London Convention, Article IV.
60London Protocol, Article 4.1.1.
61See, the Eligibility Criteria for inert, inorganic, geological material in the Guidelines on
the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter (2006 edition), paragraph 13 (Dumping Guidelines).
62The author is grateful for Dr Ian Shaw, Professor of Toxicology, University of Canterbury, for helpful information on the approach of chemists and other scientists to the
question of inertness.
exploiting the oceans for climate change mitigation
663
might occur following the materials exposure to physical, chemical, or biological
processes in the marine environment. Material that may result in acute or chronic
toxicity, or in bioaccumulation of any of its constituents, should not be considered
inert.63
The final sentence would appear to introduce a damage threshold into the definition of inert material. Nevertheless, given the inherent toxicity of iron, and the
fact that its introduction into the marine environment is deliberately intended
to create a reaction, it is highly unlikely that it would be considered inert in
the context of the London Convention Guidelines. Consequently, in contrast to the
London Convention, unless the introduction of iron, phosphate or urea into
the marine environment for climate change mitigation purposes is categorised as
placement for a purpose other than disposal, that introduction would appear to
be currently prohibited by the London Protocol.
The London Protocol has been ratified by 42 States64 including the United Kingdom, China and New Zealand65 but excluding Russia and the U.S., and entered
into force in 2006. The majority of States are therefore not bound by the London Protocol, and, as noted above, Resolution LC.LP.1 (2008) is also not binding.
However, the LOSC is of much wider application and Part XII of the Convention,
which provides the regulatory framework for marine environmental protection, is
part of customary international law and, consequently, of universal application.66
Article 210 of the LOSC requires States to adopt laws and regulations to prevent,
reduce and control pollution by dumping and those national laws shall be no
less effective...than the global rules and standards.67 Moreover, Article 216(1)
imposes obligations on flag States as well as coastal, port and loading States to
comply with the global rules and standards of application to dumping. Those
global rules and standards, whilst not specified in the LOSC, are traditionally considered to equate to the provisions of the London Convention68 rather than to
the London Protocol. Moreover, there is no procedure within the LOSC to replace
those standards with those contained in the London Protocol and it is unclear
at what point this will take place. Furthermore, given that Resolution LC.LP.1
(2008) is not binding, it cannot be considered itself a standard for the purpose
of Articles 210(6) and 216(1) of the LOSC.
63Dumping Guidelines, paragraph 14.
64By contrast the London Convention has 87 State parties.
65Scientists based in or collaborating with those in New Zealand have been quite active
in connection with research into ocean fertilization and weathering.
66Robin R. Churchill and A. Vaughan Lowe, The Law of the Sea, 3rd edition (Manchester:
Manchester University Press, 1999), 24.
67LOSC, Article 210(6). Dumping is defined in very similar terms to the London Convention in Article 1(5) of the LOSC.
68Churchill and Lowe, The Law of the Sea, 369.
664
karen n. scott
The extent to which ocean fertilisation is subject to effective mandatory
control is consequently dependent upon whether the London Protocol or the
international standards embodied by the London Convention is applied. Under the
former, ocean fertilisation is currently prohibited unless it can be categorised as a
placement activity, which is not inconsistent with the aims and objectives of the
London Protocol. Under the London Convention, which provides the international
standards for the purposes of the LOSC, ocean fertilisation is potentially permitted as dumping subject to a special or a general permit or as a placement activity
consistent with the aims and the objectives of the London Convention. Currently,
Resolution LC.LP.1 (2008) calls upon parties to refrain from authorising ocean fertilisation activities that do not constitute legitimate scientific research. Although
not legally binding there is no doubt that having been adopted by the parties to
the London Convention and London Protocol, this Resolution is highly persuasive.
Ocean Fertilisation for Legitimate Scientific Research and the Dumping Regime
Ocean fertilisation for legitimate scientific research purposes in contrast to climate change mitigation is currently permitted on the basis that it constitutes
placement for a purpose other than mere disposal under Article III.1(b)(ii) of the
London Convention and Article 1.4.2.2 of the London Protocol provided that it is
carried out in accordance with the Assessment Framework agreed by the London
Convention/London Protocol parties in 2010.69
The Assessment Framework provides a tool for assessing proposed activities
on a case-by-case basis in order to determine their compatibility with the London
Convention/London Protocol.70 Pursuant to the Framework, parties must carry out
an initial assessment in order to determine whether the activity proposed constitutes an ocean fertilisation experiment. Parties must then undertake a full environmental assessment of the activity, including consideration of the site of the
proposed experiment, the likely environmental impact of the experiment and
the risks (both known and unknown) associated with it. Where experiments are
authorised, the Framework requires parties to put in place procedures to permit
monitoring and, where appropriate, facilitate adaptive management in respect
of the experiment. Significantly, the Framework requires parties to act with caution, and stipulates that where adverse effects are predicted, projects should be
abandoned.71 The Framework is a model of precautionary and adaptive management, however, Resolution LC.LP 2 (2010) is not in of itself binding and it
remains to be seen how the Framework will be implemented by parties in respect
of individual proposed activities.
69Resolution LC-LP.2 (2010) On the Assessment Framework for Scientific Research Involving Ocean Fertilization.
70Ibid., paragraph 1.2.
71 Ibid.
exploiting the oceans for climate change mitigation
665
The process of developing a regulatory framework for legitimate scientific
research into ocean fertilisation was initiated in 2008, and, at the beginning
of 2012, four regulatory options are under serious consideration by the London
Convention/London Protocol parties.72 The first option consists of an amendment
to the London Protocol, adding one additional annex for the regulation of ocean
fertilisation. The second option varies this theme and would amend the London
Protocol and add two additional annexes, separating out the principles permitting or prohibiting ocean fertilisation from the Risk Assessment Framework. The
adoption of a resolution interpreting the London Convention and London Protocol
so that it applies to ocean fertilisation represents the third option. However, it
is unclear at this stage whether the resolution would be binding or merely recommendatory. The final option comprises the implementation of, and gathering experience from, the Risk Assessment Framework, without the adoption of
further regulatory steps. This option is strongly preferred by the United States73
whilst several other delegations have declared themselves in favour of options
one or two.74 No consensus as to a preferred option was achieved at the 2011
meeting of the parties and the terms of reference of the Intersessional Working
Group on Ocean Fertilization were consequently revived and revised, and the
question of regulation will be revisited in 2012.75
In light of the active interest in ocean fertilisation by not only scientists but
also by private for-profit operators such as Planktos and Climos, binding as
opposed to self-regulation is to be preferred. Moreover, despite the presence
of Resolution LC.LP.1 (2008), which asserts that ocean fertilisation falls within
the scope of the dumping regulatory framework, it would be desirable to amend
these instruments to formally reflect this position. However, options one and two
identified by the parties focus on amending the London Protocol rather than the
London Convention and London Protocol. Whilst an amended London Protocol will
bind the 41 States party to that Protocol, the majority of States, including the
United States, would not be bound by the ocean fertilisation for legitimate scientific research regulatory regime. As discussed above,76 the international standards
referred to in Article 210 of the LOSC comprise those set out under the London
Convention, and it is not clear at what stage the London Protocol will be treated
as superseding the London Convention for the purposes of the LOSC. Furthermore,
the obligations imposed on States under Articles 210 and 216 of the LOSC apply to
dumping activities rather than to activities constituting placement for a purpose
72See the Report of the Thirty-third Consultative Meeting of Contracting Parties to the London Convention & Sixth Meeting of Parties to the London Protocol, 1721 October 2011,
LC33/15 (8 November 2011), paragraph 4.3.
73Ibid., paragraph 4.11.
74Ibid., paragraph 4.11.
75Ibid., paragraph 4.13.
76See the discussion following notes 67 and 68, above.
666
karen n. scott
other than dumping. It is consequently not clear whether a regulatory regime
that applies to placement as opposed to dumping can be implemented through
Articles 210 and 216 of the LOSC.
Ocean Fertilisation and Other Instruments of International Law
Beyond the dumping regime, ocean fertilisation whether for climate mitigation
or for research purposes is subject to the more general constraints on activities
which pose a threat to the marine environment as developed under the LOSC
and other instruments.
In particular, Article 194 of the LOSC obliges States to take all measures necessary to prevent, reduce and control pollution from any source. Moreover, Article
196 specifically requires States to control pollution from the use of technologies
under their jurisdiction and control. Significantly, under Article 195 of the LOSC,
parties,
[i]n taking measures to prevent, reduce and control pollution of the marine environment...shall act as not to transfer, directly or indirectly, damage or hazards from one
area to another or transform one type of pollution into another.
Pollution is defined under the London Convention as:
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.77
As noted by Philomene Verlaan, this definition focuses on the effects rather
than the nature of the substance or energy in question.78 The predicted potential impacts arising from the artificial fertilisation of the oceans with nutrients
would undoubtedly be sufficient to characterise ocean fertilisation as a polluting
activity. It is less clear however, that the deployment of ocean pipes, designed to
facilitate the transfer of nutrients from the oceans depths to its surface, can be
described as a substance or energy or even a means of introducing a substance
or energy likely to result in deleterious or other harmful effects. Nevertheless, the
environmental provisions in Part XII of the LOSC apply to the vast majority of
ocean fertilisation activities, including scientific research.79
Furthermore, Part XII of the LOSC establishes a number of obligations associated with environmental impact assessment, monitoring, contingency planning
and notification in the event of an environmental emergency,80 all of which are
77LOSC, Article 1(4).
78Verlaan, Geo-engineering, the Law of the sea, and Climate Change, 449.
79LOSC, Article 240(d).
80LOSC, Articles 198, 199, 204 and 206.
exploiting the oceans for climate change mitigation
667
applicable to ocean fertilisation related activities. Already of general application
through the LOSC, it is also worth noting that many of these principles, including
environmental impact assessment, have been incorporated into the more general
corpus of international environmental law and are generally applicable in situations where there is a risk of transboundary or commons harm.81
Activities taking place on or in the oceans must also be conducted with due
regard to the rights of coastal States and to other users.82 This constraint may
therefore limit ocean fertilisation activities where they, for example, involve placing objects into the sea such as vertical pipes which may hinder navigation or
where they impact negatively on fish stocks or other biological resources compromising the freedom to fish. Marine scientific research must be carried out
in accordance with Parts XII and XIII of the LOSC and, in particular, with the
principles set out in Article 240 of the Convention. Specifically, States must comply with principles related to the publication and dissemination of information
connected to proposed projects83 and must also ensure that ocean fertilisation
undertaken in the Area84 is for the benefit of mankind.85
Whilst the LOSC provides the essential regulatory framework for ocean fertilisation, its obligations in respect of pollution prevention, the protection of vulnerable ecosystems, information exchange, environmental impact assessment and
due regard for other users are supplemented and, in many cases strengthened,
by other instruments.
For example, the UN Convention on the Prohibition of Military or any Other
Hostile Use of Environmental Modification Techniques (ENMOD Convention)86 is
probably the instrument most closely related to ocean fertilisation for climate
change mitigation in terms of subject matter. However, although the definition of
environmental modification under Article II of the Convention is undoubtedly
broad enough to include ocean fertilisation,87 Article I of the ENMOD Convention
81This has recently been confirmed by the ICJ in the Case Concerning Pulp Mills on the
River Uruguay (Argentina v. Uruguay) (2010) ICJ Reports, paragraph 204 and the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS)
in the Responsibilities and Obligations of States Sponsoring Persons and Entities with
Respect to Activities in the Area, Advisory Opinion No. 17, Seabed Disputes Chamber of
the International Tribunal for the Law of the Sea (2011), paragraphs 145 and 148.
82LOSC, Article 87(2).
83LOSC, Article 245.
84The Area is defined as the seabed and ocean floor and subsoil thereof, beyond the
limits of national jurisdiction (LOSC, Article 1(1)(1)) and is subject to the regime established under Part XI of LOSC and the Part XI Implementation Agreement.
85LOSC, Article 140.
86UN Convention on the Prohibition of Military or any Other Hostile Use of Environmental
Modification Techniques, opened for signature 18 May 1977, in force 5 October 1978, 16
ILM (1977) 88 (ENMOD Convention).
87Article II of the ENMOD Convention defines environmental modification techniques
as any technique for changingthrough the deliberate manipulation of natural
668
karen n. scott
limits the prohibition of environmental modification to situations where it is
used for military or hostile purposes.88 Moreover, Article III(1) of the ENMOD
Convention stipulates that:
[t]he provisions of this convention shall not hinder the use of environmental modification techniques for peaceful purposes and shall be without prejudice to the generally recognised principles and applicable rules of international law concerning such
use.
Nevertheless, the ENMOD Convention does impose a number of obligations relating to cooperation and notification applicable to the seventy-six States party to
the ENMOD Convention.
The CBD has been noted above in connection with the adoption of Decision
IX/16 in 2008. More generally however, Article 14 of the CBD requires States to
carry out environmental impact assessments in respect of activities taking place
within their territory or under their control where that activity risks significant
adverse effects on biological diversity. Procedures, processes and expectations
in connection with environmental impact assessment have been developed by
the parties to the Convention in Decision VIII/28 (2008)89 and voluntary guidelines for activities taking place beyond national jurisdiction are in the process of
being developed.90 With the notable exception of the United States, the CBD is
of almost universal application and these obligations apply to ocean fertilisation
activities under the control of parties irrespective of their location.
A number of regional instruments also impose obligations on parties and may
potentially constrain ocean fertilisation activities. Given the focus on fertilisation-related research in the Southern Ocean to date, the most significant regional
processesthe dynamics, composition or structure of the Earth, including its biota,
lithosphere, hydrosphere and atmosphere, or of outer space.
88Interestingly, earlier drafts of the ENMOD Convention had a broader application and
sought to outlaw environmental modification, including climate modification, for military and other purposes incompatible with the maintenance of international security,
human well being and health. See, Lawrence Juda, Negotiating a treaty on environmental modification warfare: the convention on environmental warfare and its impact
on arms control negotiations, International Organization, 32 (1978): 975991, 978.
This earlier draft was developed by the then USSR but narrowed at the behest of the
US. See ibid., 979.
89See also, Decision VIII/28 Impact Assessment: Voluntary guidelines on Biodiversity
inclusive impact assessment adopted at the eighth ordinary meeting of the Conference
of the Parties to the Convention on Biological Diversity, 2031 March 2006, Curitiba,
Brazil.
90See, the Report of the Expert Workshop on Scientific and Technical Aspects relevant to
Environmental Impact Assessment in Marine Areas beyond National Jurisdiction, UNEP/
CBD/EW-EIAMA/2, 20 November 2009 and Decision X/29 Marine and Coastal Biodiversity adopted at the tenth ordinary meeting of the Conference of the Parties to the
Convention on Biological Diversity, 1829 October 2010, Nagoya, Japan, paragraph 50.
exploiting the oceans for climate change mitigation
669
instrument is the Protocol to the Antarctic Treaty on Environmental Protection
(Environmental Protocol).91 Of application to the area south of 60 South, the Environmental Protocol aims to comprehensively protect the Antarctic environment
and its dependent and associated ecosystems.92 The thirty-four parties to the
Environmental Protocol must plan activities within the Antarctic Treaty area so
as to limit adverse impacts on the Antarctic environment and its dependent and
associated ecosystems, including climate or weather patterns, water quality
and the marine environment.93 Planning is central to the operation of the Environmental Protocol and under Article 8 and Annex I, the majority of activities,
including scientific research, likely to have a minor or transitory or more than a
minor or transitory impact on the environment must undergo an initial environmental evaluation or a comprehensive environmental evaluation. It is notable
that to date, only one ocean fertilisation experiment has been subject to an environmental impact assessment under the Environmental Protocol.94
Key Governance Challenges Associated with Ocean Fertilisation
Climate change mitigation through ocean fertilisation is qualitatively different
from other mitigation and adaptation strategies such as emissions reductions or
geological carbon dioxide sequestration and this presents an inherent challenge
to the development of a regulatory regime. First, ocean fertilisation is deliberately designed to alter the carbon cycle on a global scale, but can nevertheless
be deployed unilaterally by States95 or even by private companies acting in altruism or for profit.96 Secondly, it is unclear how ocean fertilisation relates to other
91Protocol on Environmental Protection to the Antarctic Treaty, opened for signature
4 October 1991, entered into force 14 January 1998, 30 (1991) ILM 1461 (Environmental
Protocol).
92Ibid., Article 2.
93Ibid., Article 3.
94An initial environmental evaluation (IEE) was carried out by New Zealand in 1998
in respect of the voyage of the Tangarora in 1999, which supported research into the
impact of iron on phytoplankton growth. See, Karen N. Scott, The Day After Tomorrow: Ocean CO2 Sequestration and the Future of Climate Change, 18 (2005) Georgetown International Environmental Law Review, 57108, 99104.
95David G. Victor, On the regulation of geoengineering, Oxford Review of Economic Policy, 24 (2008): 322336, 324. Not all commentators see this as a particular risk. Joshua
Horton argues that the risk of unilateral deployment of geoengineering technologies is
in fact a myth because the collective constraints on deployment are likely to operate
as an effective deterrent. See Joshua B. Horton, Geoengineering and the Myth of Unilateralism: Pressures and Prospects for International Cooperation, Stanford Journal of
Law, Science and Policy, 4 (2011): 5669 at 59.
96Climos, Planktos Science, the Ocean Nourishment Corporation and Atmocean are
companies which have, to varying degrees initiated and participated in ocean fertilization activities over the last decade. For an entertaining description of the activities of
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climate change mitigation strategies such as emissions reductions and, like other
geoengineering solutions, ocean fertilisation presents a moral hazard; simply
knowing that it is available to mitigate climate change may cause States and
individuals to abandon the costly but necessary emissions reductions required
to reduce atmospheric concentrations of greenhouse gases. Thirdly, the environmental risks associated with ocean fertilisation resulting from an increase in
ocean acidification or from unintended and unwanted consequences are potentially significant but cannot be assessed in isolation. The risks posed by ocean
fertilisation must be evaluated in the context of, and weighed up against, the
significant risks posed by climate change itself.
In terms of environmental governance these challenges can be articulated in
the following terms. First, what role should the precautionary approach play
in managing ocean fertilisation activities? Secondly, should ocean fertilisation
be subject to a formal regulatory regime or would a lighter-touch approach be
more suitable, relying on recommendations and voluntary guidelines? Finally,
how can the management of ocean fertilisation be integrated with other marinebased geoengineering strategies or even with technologies designed to exploit the
biosphere and atmosphere for climate change mitigation purposes?
The Precautionary Approach and Ocean Fertilisation
The first governance challenge focuses on the relationship between ocean fertilisation activities, including research, and the precautionary approach. The
precautionary approach would seem to have been almost designed with ocean
fertilisation in mindit undoubtedly represents a risk to the environment and
there is significant if not total uncertainty surrounding its effectiveness and potential environmental impact. But ocean fertilisation is itself designed to address
harm to the environment; harm caused by climate change. So rather than simply
weighing up the benefits of an activity against its risks, the negative impacts of
climate change must also be considered as part of the decision-making process.
Moreover, the predicted negative consequences of climate change are not distributed evenly among States; those States especially vulnerable to climate change
may perceive the risks associated with ocean fertilisation rather differently from
those States where the risks are lower. Cultural attitudes to risk, technology and
to climate change itself are also likely to impact on the potential application of
the precautionary approach to ocean fertilisation. Even at this relatively early
Climos and Planktos see, Eli Kintisch, Hack the Planet. Sciences Best HopeOr Worst
Nightmarefor Averting Climate Catastrophe (New Jersey: Wiley, 2010), Chapter 7. See
also, Margaret Leinen, Building relationships between scientists and business in ocean
iron fertilization, Marine Ecology Progress Series, 364 (2008): 251256 and Aaron L.
Strong, John J. Cullen and Sallie W. Chisholm, Ocean Fertilization. Science, Policy and
Commerce, Oceanography, 22 (2009): 236261.
exploiting the oceans for climate change mitigation
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stage in the regulation of ocean fertilisation, it is apparent that States and international organisations already appear to perceive those risks differently.
The parties to the CBD and the European Parliament have both advocated
extreme caution in developing ocean fertilisation (and other geoengineering
strategies), just falling short of a moratorium.97 The IMOthrough the conferences of parties to the London Convention and London Protocolby contrast, has
developed a rather more nuanced approach to the regulation of ocean fertilisation for scientific research through its development of a Risk Assessment Framework.98 At the other end of the spectrum, the UK House of Commons Committee
on Science and Technology recommended in their 2010 report on the regulation of geoengineering, that the precautionary principle should not be expressly
included within the list of principles central to managing research into geo-engineering for climate change mitigation, on the basis that its inclusion would stifle
innovation.99
Whilst acknowledging the variation in attitude towards ocean fertilisation
and geoengineering more generallyby States, it is almost inconceivable that
the precautionary principle would be denied application to ocean fertilisation
activities at the international level. The core of the precautionary principle, as
expressed in principle 15 of the 1992 Rio Declaration,100 requires States to exercise
a more cautious approach to the authorisation of activities in situations where
there are threats of serious environmental harm. As a matter of procedure, scientific uncertainty must be explicitly considered as part of the decision-making
process, and must not be used as justification to authorise activities that pose a
risk of serious harm to the environment or to postpone cost effective measures
designed to prevent such harm. The terms principle and approach are commonly
97See, CBD Decision IX/16 Biodiversity and Climate Change adopted by the conference
of the parties at the ninth meeting, 1930 May 2008, Bonn, Germany at paragraph
C.4 discussed above at footnote 50 and CBD Decision X/33 Biodiversity and Climate
Change adopted by the conference of the parties at the tenth meeting, 1829 October
2010, Nagoya, Japan, at paragraph 8(w) discussed above at footnote 51. See the European Parliament resolution of 29 September 2011 on developing a common EU position ahead of the United Nations Conference on Sustainable Development (Rio+20)
(29 September 2011), P7_TA-PROV(2011)0430/B7-0522/2011 in which the European
Parliament expresses its opposition to proposals for large scale geo-engineering,
Paragraph 90.
98Resolution LC-LP.2 (2010) On the Assessment Framework for Scientific Research Involving Ocean Fertilization. See the discussion of the Framework at notes 7076 above.
99House of Commons Science and Technology Committee, The Regulation of Geoengineering (Fifth Report of Session 200910) (HC 221), paragraph 86.
100Principle 15 of the 1992 Rio Declaration reads: In order to protect the environment,
the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
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used but there is no substantive difference between the two in respect of the
nature or the extent of the obligation imposed.101 Although the content of
the precautionary approach is defined by the context of its application, the
approach is now so widely applied in situations where there is a risk of serious
harm to the environment that it can be considered part of international environmental law.102 This has been recently, albeit indirectly, confirmed by the ICJ
in the Pulp Mills on the River Uruguay Case, where the Court accepted that the
precautionary approach may be relevant in the interpretation and application of
the provisions of the Statute in dispute between Uruguay and Argentina.103 The
Courts implicit reference to Article 31(3)(c) of the Vienna Convention on the Law of
Treaties104 implies that it regards the precautionary approach as a relevant rule
of international law applicable to both Uruguay and Argentina. This interpretation of the ICJs conclusion was confirmed in early 2011 by the Seabed Disputes
Chamber of the International Tribunal for the Law of the Sea (ITLOS) in Advisory
Opinion No. 17.105 In that case, the Chamber went on to observe that:
the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of
Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a
trend towards making this approach part of customary international law.106
As discussed above, the Risk Assessment Framework developed to manage ocean
fertilisation for legitimate scientific purposes constitutes a robust implementation of the precautionary approach. However, the more general obligations to
prevent pollution under both the London Convention/London Protocol and the
101The precautionary approach is the term commonly employed in international treaties whereas European treaties and EU law more regularly refer to the precautionary
principle. See, Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law
and the Environment, 3rd edition (Oxford: Oxford University Press, 2009), 155. See also,
Arie Trouwborst, Precautionary Rights and Duties of States (Leiden: Martinus Nijhoff
Publishers, 2006), 11 and Simon Marr, The Precautionary Principle in the Law of the
Sea: Modern Decision Making in International Law (Leiden, Martinus Nijhoff Publishers, 2003), 1721.
102Birnie, Boyle and Redgwell, International Law and the Environment, 162 suggest that
the precautionary approach is binding by virtue of its status as a general principle
of law. Other commentators, including Trouwborst, Precautionary Rights and Duties of
States, 295, conclude that it is a principle of customary international law.
103Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), paragraph
164.
104Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, entered
into force on 27 January 1980, 1155 UNTS 331.
105Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area, paragraph 135. See further, David Freestone, Responsibilities and
Obligations of States Sponsoring Persons and Entities with Respect to Activities in the
Area, American Journal of International Law, 105 (2011): 755760.
106Freestone, Responsibilities and Obligations.
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LOSC must also be interpreted to incorporate the precautionary approach,
relying on the principles of treaty interpretation as set out in Articles 31(3)(b)107
and 31(3)(c)108 of the Vienna Convention on the Law of Treaties. The nature, and
indeed the extent, of the environmental risks associated with ocean fertilisation
would potentially justify a moratorium on its deployment as a climate change
mitigation measure. However, as noted above, ocean fertilisation constitutes a
response to, and an attempt to mitigate, a serious risk of environmental harm:
climate change. A moratorium on ocean fertilisation activities would be likely
to stifle research and innovation and, in the context of climate change, might
itself be regarded as contrary to Article 3(3) of the United Nations Framework
Convention on Climate Change.109 Decision-makers therefore need to consider the
environmental risks associated with climate change as well as the risks associated
with geoengineering. Turning the question on its head, the relationship between
ocean fertilisation (and other forms of geoengineering) and the precautionary
approach, in fact provides an important test-case for the implementation of the
precautionary approach in international law. How States choose to interpret and
apply the precautionary approach independently of, or perhaps across multiple
environmental regimes, will contribute to the further development of the precautionary approach as a principle of international environmental law.
Governance and Ocean Fertilisation
The second governance challenge is a much broader one; what is the appropriate
regulatory response to ocean fertilisation for climate change mitigation purposes?
It is notable that the experience to date under the dumping regime demonstrates
that the development of the Risk Assessment Framework proved an easier task
than determining the regulatory context.
In part, the reluctance of States to decide on a regulatory mechanism for ocean
fertilisation stems from a residual uncertainty as to whether the dumping regime
represents the most appropriate forum within which to develop regulation, given
107The precautionary approach to marine environmental protection has been endorsed
in numerous declarations and documents including Chapter 17 of Agenda 21.
108Relying on the recognition by the ICJ and the Seabed Disputes Chamber of ITLOS that
the precautionary approach constitutes a relevant rule of international law applicable
in the relations between the parties.
109United Nations Framework Convention on Climate Change, opened for signature 9 May
1992, entered into force 21 March 1994, 1771 UNTS 107 (UNFCCC). Article 3(3) of the
UNFCCC requires parties to take precautionary measures to anticipate, prevent or
minimise the causes of climate change and mitigate its adverse effects. Where there
are threats of serious or irreversible damage, lack of full scientific certainty should not
be used as a reason for postponing such measures, taking into account that policies
and measures to deal with climate change should be cost-effective so as to ensure
global benefits at the lowest possible cost.
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the emphasis of the regime to date on disposal rather than placement. This
question is exacerbated when other forms of marine geoengineering such as
weathering or the manipulation of down-welling currents are considered. Treaties are not immutable and, as living instruments, they may be amended and
adapted to apply to new activities or situations. Nevertheless, whilst there is no
principled objection to designating the dumping regime as the forum within
which the regulation of ocean fertilisation and indeed, geoengineering more generally, should take place, there may be practical challenges if not all States are in
agreement with the proposed expansion of coverage.
However, objections to formal regulation of ocean fertilisation also stem from
broader reservations associated with the development of a mandatory regime of
application to ocean fertilisation and other forms of geoengineering. The United
States unequivocally favours monitoring and learning from the Risk Assessment
Framework without adopting mandatory controls on ocean fertilisation,110 and,
more generally, self-regulation of geoengineering whether through an active collaborative research programme111 or through the convening of a scientific conference designed to develop suitable principles of governance112 has received
significant support from some commentators and organisations.113 Nevertheless,
given the potential for global environmental change resulting from ocean fertilisation (and other geoengineering strategies), a non-regulatory response is unattractive. An alternative option comprises a soft regulatory approachat least
in the first instancecomprising the deliberate fostering of institutional collaboration between existing regimes and international bodies in respect of ocean
110See the discussion at note 74, above.
111Precedents for such a research program include the European Organization for Nuclear
Research (CERN), the Human Genome Project and the InterRidge, a non-profit organisation established to promote the study, use and protection of mid-ocean ridges. This
(non)regulatory framework is advocated by Victor, On the regulation of geoengineering,
325 and Scott Barrett, The Incredible Economics of Geoengineering, Environmental and
Resource Economics, 39 (2008): 4554, 51. It should be noted that the Solar Radiation
Management Governance Initiative (SRMGI) was launched by the Royal Society, the
Academy of Sciences for the Developing World and the Environmental Defense Fund
was established following the issue of the Royal Society report on geoengineering in
2009. The goal of SPRI is to produce a clear set of recommendations for the governance of
SRM research. See SPRI, Solar radiation management: the governance of research (2011),
http://www.srmgi.org/files/2012/01/DES2391_SRMGI-report_web_11112.pdf.
112The Asilomar International Conference on Climate Intervention Technologies was
convened in California in 2009 with the purpose of developing principles relevant to
geoengineering governance. See Margaret Leinen, The Asilomar International Conference on Climate Intervention Technologies: Background and Overview, Stanford
Journal of Law, Science and Policy, 4 (2011): 15.
113For example, the Royal Society in its 2009 Report recommends a self-regulation
approach involving international scientific partners. Royal Society, Geoengineering the
Climate, 61.
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fertilisation, with a view to independent but mutually supportive regulation.114 At
the other end of the spectrum, it might be argued that ocean fertilisation would
benefit from a designated forum and regime in the form of a new free-standing
instrument, or an Agreement negotiated under the LOSC or a Protocol to the
UNFCCC.115 Whilst the mode of regulation has yet to be determined, it is beyond
doubt that how ocean fertilisation is ultimately governed will have direct and
tangible implications for its development (or otherwise) as a climate change mitigation measure.
Integrated Governance of Ocean Fertilisation and Geoengineering
The final challenge identified for the purpose of this chapter focuses on the
question of integrated governance; in relation to ocean fertilisation activities
and, more broadly, with respect to the relationship between ocean fertilisation and
other geoengineering strategies. Integrated management is an increasingly
familiar concept in the context of oceans governance but ocean fertilisation
and geoengineering more generally presents regulators with some particularly
complex integration challenges. In the absence of a designated regime for geoengineering, States have naturally utilised existing international organisations on
an ad hoc basis with a view to developing a regulatory regime. In the case of
ocean fertilisation that institution is the IMO, through the particular forum
of the dumping regime. However, as the short history of ocean fertilisation demonstrates, other institutions, such as the CBD and UNFCCC conferences of parties,
also have an interest in the regulation of fertilisation, and, may diverge in their
preferred approach to regulation. Moreover, how ocean fertilisation is governed
by the IMO may impact upon the extent and nature of governance within other
international organisations and regimes.
Perhaps one of the most surprising developments in the ocean fertilisation
debateor more accurately, non developmentis that the parties to the Antarctic Treaty116 have taken almost no interest in Southern Ocean fertilisation to
date. This is despite the fact that these activities are taking place within or in
close proximity to the Antarctic Treaty area, and that the evolving regulatory
114The present author has explored the option of informal and formal institutional and
regime collaboration with respect to geoengineering elsewhere. See, Karen N. Scott,
Transboundary Environmental Governance and Emerging Transboundary Threats:
Geoengineering in the Marine Environment, in Simon Marsden and Robin Warner
(eds.), Transboundary Environmental Governance of Inland Coastal and Marine Areas
(Farnham: Ashgate, 2012) 223245.
115Albert C. Lin, Geoengineering Governance, Issues in Legal Scholarship, 8 (2009): Article 2, suggests the adoption of a Protocol to the UNFCCC to regulate geoengineering,
including ocean fertilisation.
116Antarctic Treaty, opened for signature 1 December 1959, entered into force 23 June
1961, 402 UNTS 71.
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regime within the IMO has significant implications for not only the regulation of
ocean fertilisation within the Antarctic region but also for how scientific research
is defined in terms of activities taking place within Antarctica. The control of
Antarctic scientific research has traditionally been regarded as an issue exclusive
to the regulatory mandate of the Antarctic Treaty system.117 At the very least,
international organisations and regimes should begin to explore mechanisms for
closer cooperation in the management of ocean fertilisation in order to develop
a governance regime that is supported by all and not undermined by divergent
approaches to regulation.118
More fundamentally however, ocean fertilisation raises very significant questions about how we respond to the threat of climate change and where ocean
fertilisation and geoengineering more generally fits within the tool box of
mitigation and adaptation strategies. The IMO through the dumping regime is
not an appropriate forum within which these broader questions can be properly addressed. Although institutional cooperation between interested regimes
may serve to facilitate a broader discussion about geoengineering, the creation
of a designated forumthrough a stand-alone instrument or associated with
an existing regime such as the UNFCCCis arguably best suited to host these
debates and also provides the most appropriate mechanism to develop integrated
governance of ocean fertilisation, geoengineering and climate change mitigation
and adaptation.
Concluding Remarks
Ocean fertilisation is just one geoengineering strategy that exploits the characterisation of oceans as saviour in the context of climate change. As such, it presents
a rather more complex set of challenges to oceans governance than most other
marine-based activities. As a strategy designed to mitigate the impacts of climate
change, the risks associated with ocean fertilisation must be considered and
evaluated within the broader context of the risks posed by climate change itself.
This makes the application of the precautionary approach to ocean fertilisation
especially challenging, but also provides a test-case for the development of the
precautionary approach beyond and across individual environmental regimes.
As an activity that does not have an obvious regulatory forum, ocean fertilisation requires a level of integrated management involving a range of international
and regional institutions. Enhanced levels of institutional cooperation among
117See, Karen N. Scott, Scientific Rhetoric and Antarctic Security, in Donald R. Rothwell,
Alan D. Hemmings and Karen N. Scott (eds.), Antarctic Security in the 21st Century: Legal
and Policy Perspectives (Oxford: Oxford University Press, 2012) 284306, 279299.
118See, Scott, Transboundary Environmental Governance and Emerging Transboundary
Threats: Geoengineering in the Marine Environment.
exploiting the oceans for climate change mitigation
677
environmental regimes are fast becoming an important feature of environmental
governance more generally,119 and cooperation between interested regimes and
institutions is likely to prove vital for the long-term governance of such a controversial activity. However, even with precautionary and integrated governance of
ocean fertilisation, a fundamental question needs to be addressed: should ocean
fertilisation and other strategies designed to manipulate natural systems be developed for the purpose of mitigating climate change? This question goes beyond
the area of oceans governance and arguably, can only be addressed within the
climate change regime itself.
119See, Karen N. Scott, International Environmental Governance: Managing Fragmentation through Institutional Connection, Melbourne Journal of International Law, 12
(2011): 177216.
chapter Thirty
Through the Back Door: The Limits of the UN Law
of the Sea Conventions Usefulness as a Tool
to Combat Climate Change
Jenny Grote Stoutenburg*
Introduction
Vulnerable countries consider occupying Durban talks.1 Although developing
States did not end up boycotting the climate summit held in South Africa in
2011, this headline from the newspaper The Guardian aptly sums up the current
state of the multilateral climate change negotiations. Since the failure of the
2009 Copenhagen Conference to produce mandatory greenhouse gas emission
reduction obligations going beyond the first commitment period of the Protocol
to the United Nations Framework Convention on Climate Change (Kyoto Protocol),2
international negotiations have reached a stalemate. In Durban, the States
merely decided to launch a process to develop an agreed outcome with legal
*Jenny Grote Stoutenburg is a Ph.D. candidate at the University of Hamburg, Germany.
She holds an LL.M. from the University of Cologne, Germany, and a Matrise en Droit
from the Universit Paris I (Panthon-Sorbonne), France. She was a Visiting Scholar at
the University of California, Berkeley School of Law and has worked at the Max Planck
Institute for Comparative Public Law and International Law, the Federal Foreign Office
of Germany, and the German Institute for Human Rights.
1 John Vidal, The Guardian, 24 November 2011, http://www.guardian.co.uk/
environment/2011/nov/24/climate-change-occupy-durban-talks. In 2009, a group of
African countries boycotted the Barcelona climate talks to protest against industrialized
countries delaying tactics in negotiating new mandatory emission reduction obligations.
See Arthur Max, African Countries Boycott UN Climate Talks, U.S. News Science, 3
November 2009, http://www.usnews.com/science/articles/2009/11/03/in-serious-set
back-african-countries-boycott-un-climate-talk. At Durban however, the only occupation
was staged by youth delegates. See Amy Goodman, Frustrated by Inaction, Youth
Delegates Occupy COP 17 Plenary in Durban, Democracy Now!, 9 December 2011, http://
www.democracynow.org/2011/12/9/frustrated_by_inaction_youth_delegates_occupy.
2Protocol to the United Nations Framework Convention on Climate Change, opened for
signature 11 December 1997, entered into force 16 February 2005, 37 (1998) ILM 22
(Kyoto Protocol).
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force applicable to all parties by 2015, destined to come into effect in and be
implemented from 2020.3 Disappointed with the lack of urgency displayed by the
large emitters, vulnerable developing countries are exploring alternative means
to spur action on climate change. While Tuvalu never acted on its threat to sue
the United States and Australia over their greenhouse gas emissions,4 the island
nation of Palau has announced its intention to seek an advisory opinion from the
International Court of Justice (ICJ) on whether States have a legal responsibility
to ensure that any activities on their territory that emit greenhouse gases do
not harm other States.5 Another legal strategy that is being considered is to use
the United Nations Convention on the Law of the Sea (LOSC)6 to compel States
to reduce emissions, in line with their obligation to prevent marine pollution.7
The obvious advantage of this approach lies in the LOSCs compulsory dispute
settlement mechanism, which allows every State party to initiate binding
dispute settlement proceedings against another party to the Convention. Using the
LOSC to adjudicate climate change would be climate action that comes in through
the back door, by circumventing the unproductive climate negotiations.
This chapter provides a critical review of the LOSCs usefulness as a tool to
combat climate change. It argues that while a dynamic interpretation of the LOSC
might allow for the subsumption of greenhouse gas emissions under the Conventions marine pollution provisions, procedural as well as substantive obstacles prevent the LOSC from providing a panacea to States unwillingness to deal
with the problem of anthropogenic climate change. After a brief overview of the
impacts that climate change has on the oceans, the chapter analyses the legal
basis for treating climate change as an issue under the LOSC. It then discusses
the procedural and substantive problems that are caused by the coexistence
of the LOSC and the climate regime, and by the attempt to apply the law of State
responsibility to climate change. The chapter concludes with some reflections on
the potential outcome and benefits of a successful lawsuit.
3See, Decision adopted by COP 17, Establishment of an Ad Hoc Working Group on the
Durban Platform for Enhanced Action, http://unfccc.int/2860.php.
4For a discussion see Rebecca Elizabeth Jacobs, Treading Deep Waters: Substantive Law
Issues in Tuvalus Threat to Sue the United States in the International Court of Justice,
Pacific Rim Law & Policy Journal, 14 (2005): 103128.
5See, Palau seeks UN World Court opinion on damage caused by greenhouse gases,
UN News Center, 22 September 2011, http://www.un.org/apps/news/story.asp?NewsID=
39710&Cr=pacific+ island &Cr1=.
6United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
7William C. G. Burns, Potential Causes of Action for Climate Change Damages in
International Fora: The Law of the Sea Convention, McGill International Journal of
Sustainable Development Law & Policy, 2 (2006): 2751, 36, states that the LOSC may
prove to be one of the primary battlegrounds for climate change issues in the future.
through the back door
681
The Impacts of Climate Change on the Oceans
Climate change has a range of impacts on the worlds oceans. Higher overall
temperatures also cause the oceans to heat up and expand, which endangers
coastal ecosystems through sea level rise and harms corals and fish populations.8
In addition to these detrimental changes brought about by the greenhouse
effect, the increased atmospheric concentration of carbon dioxide (CO2) in itself
constitutes a threat to the marine environment. The oceans are the worlds largest
carbon sink, and as such have absorbed more than one third of the CO2 human
activities have added to the atmosphere.9 The more CO2 is in the atmosphere,
the more gets absorbed by the oceans, although this process is counterbalanced,
to a certain extent, by the fact that the solubility of CO2 decreases with rising
water temperatures.10 While the uptake of CO2 by the oceans is beneficial from
the viewpoint of mitigating climate change, it is detrimental for the marine
environment.11 As CO2 dissolves in the water, it changes the oceans chemistry
by lowering its pH, thus making it more acidic. Today, the pre-industrial marine
pH level of around 8.1 has already dropped by 0.1 units, representing an increase
in acidity of almost 30 per cent. The further intensification of this process in
the next few decades, predicted to occur at an unprecedented rate, could render
ocean waters corrosive for many marine calcifying organisms, such as corals,
plankton, shellfish, and molluscs, which depend on stable carbonate levels to
build their protective shells. The adverse impacts on calcifying organisms in turn
could disrupt entire food webs and marine ecosystems.
8The global ocean has taken up over 80 per cent of the heat added to the climate system
as a result of the anthropogenic greenhouse effect. This has increased its average
temperature to depths of at least 3,000 m. Increases in sea level are consistent with
this warming. See, Intergovernmental Panel on Climate Change, Climate Change 2007:
Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change (Geneva: IPCC, 2008), 30. On
the impacts of climate change on the oceans see also Duncan E. J. Currie and Kateryna
Wowk, Climate Change and CO2 in the Oceans and Global Oceans Governance,
Carbon & Climate Law Review, 4 (2009): 387404.
9See for a detailed discussion, Rachel Baird, Meredith Simons and Tim Stephens, Ocean
Acidification: A Litmus Test for International Law, Carbon & Climate Law Review, 4
(2009): 459471, 460; Michael Bothe, Measures to Fight Climate ChangeA Role for
the Law of the Sea? in Holger Hestermeyer, Nele Matz-Lck, Anja Seibert-Fohr, and
Silja Vneky (eds.), Law of the Sea in Dialogue (Heidelberg: Springer, 2011), 3145, 33.
10Baird et al., Ocean Acidification, 460; Bothe, Measures to Fight Climate Change, 33.
11 Bothe, Measures to Fight Climate Change, 39 et seq., points out a potential regulatory
tension between the United Nations Framework Convention on Climate Change, which
calls for the enhancement of greenhouse gas sinks, including marine sinks, and thus
seems to promote increased CO2 uptake by the oceans, and the duty to protect
biological diversity codified in the Convention on Biological Diversity.
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Ocean acidification in particular has been singled out by climate activists
as a potential cause of action under the LOSC, because it constitutes a direct
chemical consequence of increased CO2 concentrations in the atmosphere.12
Since ocean acidification is independent from the greenhouse effect, it is easier to
establish a causal link between this phenomenon and anthropogenic emissions
of greenhouse gases than it is with regard to climate change impacts such as
extreme weather events.13 But whether concerning climate change impacts
proper or ocean acidification, the question arises whether these effects fall under
the definition of marine pollution as regulated by the LOSC.
CO2 as a Marine Pollutant Regulated by the LOSC
Several marine pollution provisions provide a legal basis for treating climate
change and increased CO2 concentrations as an issue under the LOSC. According
to the inclusive definition given by LOSC Article 1(4), marine pollution 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.
The introduction of pollutants, that is, substances or energy, can therefore
be indirect, and it must only be likely to result in deleterious effects. Although
climate change was of (almost) no concern at the time the LOSC was negotiated,
a progressive and effects-based interpretation of LOSC Article 1(4) warrants
its application to the ocean-related impacts of global warming and increased
atmospheric CO2 concentrations.
Depending on whether one focuses on the radiative forcing effect or the
direct polluting effect of atmospheric CO2,14 its impacts can be qualified as
the introduction of either energy or substances into the marine environment.
If the focus is on the radiative forcing caused by the greenhouse effect, the
absorption by the oceans of the heat added to the climate system constitutes an
indirect introduction of energy. The inclusion of energy in the LOSCs definition
12See, Dean Bialek and Judah Ariel, Ocean Acidification: International Legal Avenues
under the UN Convention on the Law of the Sea, in Michael B. Gerrard and Gregory
E. Wannier (eds.), Threatened Island Nations. Legal Implications of Rising Seas and a
Changing Climate (Cambridge: Cambridge University Press, 2013), 473529.
13The same arguably holds true with regard to sea level rise, which involves changes in
basic geographic characteristics. See, Dan Farber, Basic Compensation for Victims of
Climate Change, University of Pennsylvania Law Review, 155 (2007): 16051656, 1606.
14On this distinction see, Currie and Wowk, Climate Change and CO2 in the Oceans and
Global Oceans Governance, 387.
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of marine pollution was meant to cover thermal energy; however, what the
drafters of the Convention had in mind were instances of more localised warming
of seawater, for example through the release of heated water from power plants
or other industrial facilities.15 Yet this does not mean that the reading of LOSC
Article 1(4) would need to remain confined to this static historic interpretation.
The LOSC, the constitution for the oceans16 which lays down a comprehensive
legal framework for all possible uses of the worlds seas and oceans, would quickly
become outdated if its interpretation did not take into account the scientific,
technological and societal changes that have occurred since its adoption. A
dynamic interpretation is also consistent with the general thrust of LOSC Article
1(4), which was formulated broadly so as to cover all possible sources of pollution.
Accordingly, commentators argue for the inclusion in the definition of novel
forms of pollution through energy, for instance with regard to acoustic pollution
generated by sonar sound waves.17 The same reasoning leads to the conclusion
that the warming of the oceans caused by the anthropogenic greenhouse effect
constitutes a form of energy pollution under LOSC Article 1(4).18
If the focus on the other hand is on ocean acidification, which occurs
independently from the greenhouse effect, the absorption of CO2 by the oceans is
a form of pollution through the indirect introduction of substances. CO2 is a gas,
and as such a substance covered by LOSC Article 1(4). However, its qualification
as a pollutant could be disputed because it occurs naturally and is generally
benign. The qualification of CO2 as an air pollutant is a question the United
States Supreme Court was faced with in the well-known decision Massachusetts
vs. EPA.19 The petitioners (twelve US states, plus several local governments and
15See, Meinhard Doelle, Climate Change and the Use of the Dispute Settlement Regime
of the Law of the Sea Convention, Ocean Development & International Law, 37 (2006):
319337, 322.
16This phrase was coined by Tommy T. B. Koh of Singapore, President of the Third United
Nations Conference on the Law of the Sea.
17Jon M. Van Dyke, Giving Teeth to the Environmental Obligations in the LOS Convention,
in Alex G. Oude Elferink and Donald R. Rothwell (eds.), Oceans Management in the 21st
Century: Institutional Frameworks and Responses (Leiden: Martinus Nijhoff Publishers,
2004), 167186, 185; Jeremy Firestone and Christina Jarvis, Response and Responsibility:
Regulating Noise Pollution in the Marine Environment, Journal of International Wildlife
Law and Policy, 10 (2007): 109152, 124127; see also, Gerhard Hafner, Meeresumwelt,
Meeresforschung und Technologietransfer [Marine Environment, Marine Research and
Transfer of Technology], in Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts
[Handbook of the Law of the Sea] (Munich: Beck Juristischer Verlag, 2006), 347460,
363.
18In this sense also Christian Tomuschat, Global Warming and State Responsibility, in
Holger Hestermeyer et al. (eds.), Law of the Sea in Dialogue (Heidelberg: Springer, 2011),
329, 17; Doelle, Climate Change and the Use of the Dispute Settlement Regime of the
Law of the Sea Convention, 322.
19Massachusetts et al. v. Environmental Protection Agency et al., 549 U.S. 497 (2007).
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environmental NGOs) had argued that the toxicity of CO2 resulted from its
high atmospheric concentrations.20 Deciding in their favour, the United States
Supreme Court held that greenhouse gases are unquestionably agent[s] of air
pollution.21
Although Massachusetts vs. EPA concerned a statutory interpretation of the
United States Clean Air Act,22 the criterion of concentration of a substance is not
unknown to marine protection regimes. Article 4 of Annex IV to the Protocol on
Environmental Protection to the Antarctic Treaty23 (Madrid Protocol) for instance
prohibits [t]he discharge into the sea of any [...] chemical or other substances,
in quantities or concentrations that are harmful to the marine environment.24 It
is therefore not far-fetched to conclude that a similar characterisation of CO2 as
a pollutant, based on its high atmospheric concentrations, should prevail under
the LOSC.
LOSC Part XII on the Protection and Preservation of the Marine Environment
lays down a comprehensive catalogue of the duties States have with regard to
the prevention, reduction and control of marine pollution. LOSC Article 192
establishes the general obligation of States to protect and preserve the marine
environment, tempered, according to LOSC Article 193, by States sovereign right
to exploit their natural resources, which however must be exercised pursuant to
their environmental policies and in accordance with their duty to protect and
preserve the marine environment.25 These general norms are reinforced by
LOSC Article 194, whose second paragraph codifies and specifies the customary
no harm rule for the marine context by obliging States to take all necessary
measures to ensure that activities under their jurisdiction or control do not cause
pollution damage to other States or the marine global commons.26 Besides the
customary no harm rule, this provision was relied upon by the President of Palau
20Here too, the alleged injury was ocean-related, pertaining to concerns of future land
loss due to sea level rise.
21 Massachusetts et al. v. Environmental Protection Agency et al., 549 U.S. 497 (2007), 26.
But see the dissenting opinion by Justices Scalia et al., 813.
22Clean Air Act, 42 USC 7401.
23Protocol on Environmental Protection to the Antarctic Treaty, opened for signature
4 October 1991, entered into force 14 January 1998, 30 (1991) ILM 1461 (Madrid
Protocol).
24Ibid. (emphasis added).
25The formulation is therefore stricter than in Principle 2 of the 1992 Rio Declaration,
which grants States the sovereign right to exploit their own resources pursuant to their
own environmental and developmental policies.
26According to LOSC Article 194(3), this includes measures designed to minimize to
the fullest possible extent [...] the release of toxic, harmful or noxious substances,
especially [...] from or through the atmosphere.
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to support its call for an advisory opinion by the ICJ on State responsibility for
climate change.27
Complementing the general provisions laid down in Section 1, Section 5 of Part
XII deals with specific sources of pollution. Of particular interest in the climate
change context is LOSC Article 212, which is concerned with preventing marine
pollution from or through the atmosphere emanating from the air space under
the sovereignty of the States parties. Read in the overall context of Part XII, LOSC
Articles 194 (2) and 212 seem to provide a powerful case for climate action under
the Law of the Sea Convention.
Litigation Tactics: Whom to Sue and What to Claim
Further increasing the allure of this approach, the expansive marine pollution
provisions contained in the LOSC are combined with a powerful system of
judicial review. If a dispute concerning the interpretation or application of the
LOSC cannot be settled through negotiation or conciliation, either party can
submit it to compulsory settlement by the International Tribunal for the Law of
the Sea (ITLOS), the ICJ, or an arbitral tribunal, depending on the prior choice
of the parties, with arbitration as the default mechanism.28
The applicant State would have to consider several issues when initiating
proceedings over the ocean-related impacts of climate change under the LOSC.
The first basic question would be the choice of a respondent. The United States
appears as a natural candidate, given that it is the largest historic contributor to
the accumulation of greenhouse gases in the atmosphere, has one of the highest
per capita emission rates, ranks second in current overall emission levels, and has
refused to ratify the Kyoto Protocol. However, the United States is not a party to
the LOSC. The United States is a party to the Agreement for the Implementation
of the Provisions of the United Nations Convention on the Law of the Sea of 10
December 1982 Relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement)29 though, an
implementation agreement to the LOSC that incorporates its dispute resolution
27See, Palau seeks UN World Court opinion on damage caused by greenhouse gases.
28See, LOSC Part XV (Articles 279299). The dispute settlement system under the LOSC
is three-tiered, dealing with voluntary procedures in its first section and compulsory
procedures entailing a binding decision in its second section. The third section
establishes limitations and optional exceptions to the applicability of the compulsory
procedures.
29The Agreement for the Implementation of the Provisions of the United Nations Convention
on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 August
1995, entered into force 11 December 2001, 2167 UNTS 3 (UN Fish Stocks Agreement).
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provisions.30 If the action was based on the detrimental impact of climate change
on fisheries, it could perhaps be directed against the United States.31 But the UN
Fish Stocks Agreement was designed to stop overfishing, and it is questionable
whether its scope could be stretched to apply to climate change.32
Another possible contender is Canada, which has incurred the wrath of climate
activists with its decision to formally withdraw from the Kyoto Protocol to avoid
being fined for failing to meet its emission targets.33 Yet no matter which country is
chosen as the respondent, the applicant State would encounter difficult problems
of proving causality on the merits, because climate change is not caused by any
one State alone. To increase the chances of success, the applicant State would
therefore have to sue a whole range of States, at least the major emitters. This
general logistical obstacle to adjudicating climate change is aggravated under the
LOSC, where the additional problem arises that the respondent States might not
have chosen the same forum for dispute settlement. The maritime delimitation
dispute between Bangladesh and Myanmar and India respectively, which was
brought before ITLOS and an Annex VII arbitral tribunal, provides a case in
point. A situation like this would entail the risk of the different fora delivering
conflicting verdicts.34
30Article 30(1) of the UN Fish Stocks Agreement stipulates that [t]he provisions relating
to the settlement of disputes set out in Part XV of the Convention apply mutatis
mutandis to any dispute between States Parties to this Agreement concerning the
interpretation or application of this Agreement, whether or not they are also Parties
to the Convention.
31 This avenue is explored by William C. G. Burns, A Voice for the Fish? Climate Change
Litigation and Potential Causes of Action for Impacts under the United Nations Fish
Stocks Agreement, Santa Clara Law Review, 48 (2008): 605647. See also, William C. G.
Burns, Potential Causes of Action for Impacts under the United Nations Fish Stocks
Agreement, Sustainable Development Law and Policy, 7 (2007): 3438.
32But see, Firestone and Jarvis, Response and Responsibility, 136, who argue that the UN
Fish Stocks Agreement could be used to protect mammals against noise pollution.
33See, Canada to Withdraw from Kyoto Protocol, BBC News, 13 December 2011, http://
www. bbc.co.uk/news/world-us-canada-16151310.
34Rdiger Wolfrum notes that because of LOSC Article 293, which establishes a normative
hierarchy with the LOSC at the top, in theory even judgments by the ICJ might diverge,
depending on whether the ICJ decides in its function as a LOSC court or not. See,
Rdiger Wolfrum, Das Streitbeilegungssystem des VN-Seerechtsbereinkommens
[The Dispute Settlement System of the UN Law of the Sea Convention], in Wolfgang
Graf Vitzthum (ed.), Handbuch des Seerechts [Handbook of the Law of the Sea],
461489, 475; Rdiger Wolfrum, Konkurrierende Zustndigkeiten internationaler
Streitentscheidungsinstanzen: Notwendigkeit fr Lsungsmglichkeiten und deren
Grenzen [Competing Jurisdictions of International Dispute Settlement Bodies:
Necessity for Solutions and their Limits], in Nisuke Ando, Edward McWhinney and
Rdiger Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda, Volume I (The Hague: Brill,
2002), 651664, 657.
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Although marine pollution represents a compensable damage independent
of anthropocentric considerations,35 the applicant States legal standing might
moreover be challenged if the State claimed redress for damage done to the
marine global commons, since the notion of actio popularis has not yet been
generally accepted in international jurisprudence. However, the applicant State
could rely on the recent advisory opinion by ITLOS Seabed Disputes Chamber.36
In a notable passage, the Chamber held that:
[e]ach State Party may [...] be entitled to claim compensation [for damage caused
to the marine environment] in light of the erga omnes character of the obligations
relating to preservation of the environment of the high seas and in the Area.37
To support this finding, the Chamber cited Article 48 of the International
Law Commissions Draft Articles on State Responsibility,38 which provides for
the invocation of State responsibility by a State other than the injured State
if the obligation breached is owed to a group of States including that State, and
is established for the protection of a collective interest of the group, or if the
obligation breached is owed to the international community as a whole. Following
this line of reasoning, it could be argued that since LOSC Article 192 imposes
an obligation on all States to protect and preserve the marine environment, it
establishes an obligation erga omnes partes, or even erga omnes,39 which all
States (parties) can enforce. Of course, the applicant State could always avoid
this question by asserting damage caused in its own maritime zones. In view of
the pervasive harm that climate change and ocean acidification are expected to
inflict inter alia on coasts, commercially relevant ecosystems, and fish stocks, this
should pose no difficulties.
Forum Non Competens?
Another question is whether a LOSC court or tribunal would agree to hear the
case in the first place, given that climate change is mainly being dealt with under
the international climate regime. Here the fragmentation of international law
35Hafner, Meeresumwelt, Meeresforschung und Technologietransfer, 364.
36Seabed Disputes Chamber of the International Tribunal for the Law of the Sea,
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Case No. 17, www
.itlos.org (Seabed Disputes Chamber Advisory Opinion).
37Ibid., paragraph 180.
38Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
Commentaries, in Report of the International Law Commission on the Work of its Fiftythird Session (23 April1 June and 2 July10 August 2001), UN Doc. A/56/10 (2001), 31.
39LOSC Article 192 declares that States, not only States parties, have the obligation to
protect and preserve the marine environment.
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becomes relevant at the procedural level, in that a court could declare itself to
be without jurisdiction.
The LOSC contains two conflict clauses which constitute procedural
prerequisites to the operation of its binding dispute resolution provisions,
Articles 281 and 282. LOSC Article 282, which played a role in the MOX Plant
Case,40 stipulates that dispute resolution procedures under other agreements
shall take precedence if they entail a binding decision.41 The international climate
regime would therefore only bar judicial review under the LOSC according to this
provision if it contained a compulsory dispute settlement mechanism. However,
the United Nations Framework Convention on Climate Change (UNFCCC)42 merely
provides for a nonbinding conciliation procedure should the parties be unable to
agree on binding dispute settlement. According to UNFCCC Article 14, the parties
can choose to accept the compulsory jurisdiction of the ICJ or of arbitration, the
procedures for which remain to be established by the Conference of the Parties
(COP), with regard to any dispute concerning the interpretation or application
of the Convention. In the absence of such a declaration, the dispute must be
submitted to a conciliation commission if the parties have not been able to settle
it through negotiation or any other peaceful means of their choice within twelve
months. The conciliation commission renders a recommendatory award which
the parties shall consider in good faith. As of today, additional procedures relating
to conciliation, as called for by the UNFCCC, have not yet been adopted by the
COP. The Kyoto Protocol on the other hand contains a compliance mechanism,
but otherwise refers to the dispute resolution mechanism under the UNFCCC.43
The climate regime therefore does not constitute a general agreement entailing
a binding decision in the sense of LOSC Article 282. Moreover, in the MOX Plant
Case, ITLOS clarified that other agreements only apply in lieu of LOSC Part
XV if they provide for the settlement of disputes concerning the LOSC itself.44
40The MOX Plant Case (Ireland v United Kingdom), Provisional Measures, Order of 3
December 2001, ITLOS Case No. 10, www.itlos.org (ITLOS MOX Plant Order).
41 LOSC Article 282 reads: If the States Parties which are parties to a dispute concerning
the interpretation or application of this Convention have agreed, through a general,
regional or bilateral agreement or otherwise, that such dispute shall, at the request of
any party to the dispute, be submitted to a procedure that entails a binding decision,
that procedure shall apply in lieu of the procedures provided for in this Part, unless the
parties to the dispute otherwise agree.
42United Nations Framework Convention on Climate Change, opened for signature 9 May
1992, entered into force 21 March 1994, 1771 UNTS 107 (UNFCCC).
43See Articles 18 and 19 of the Kyoto Protocol.
44ITLOS MOX Plant Order, paragraphs 4853. Note however that the Annex VII Arbitral
Tribunal constituted to decide the case on the merits decided to suspend the proceedings
in view of a possible seizure of the European Court of Justice, citing dictates of mutual
respect and comity that should exist between judicial institutions deciding on rights
and obligations as between States, and entrusted with the function of assisting States in
the peaceful settlement of disputes between them. See, Annex VII Tribunal, The MOX
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This is clearly not the case with regard to the climate regime, which is solely
concerned with the settlement of disputes arising under the UNFCCC and the
Kyoto Protocol.
LOSC Article 282 therefore does not constitute an obstacle to the adjudication
of climate change under the LOSC. LOSC Article 281 on the other hand, which has
been subject to controversial interpretation in the Southern Bluefin Tuna cases
and which gives precedence to other means of dispute settlement agreed on by
the parties, might be harder to overcome.45 The ruling of the Arbitral Tribunal
in the Southern Bluefin Tuna dispute46 sheds some doubt on the question whether
States parties can invoke the LOSCs dispute settlement clauses when another
multilateral convention that is pertinent to the issue foresees a nonbinding
dispute resolution process. Faced with a non-compulsory mechanism under the
Convention for the Conservation of Southern Bluefin Tuna (CSBT Convention),47 a
regional implementation agreement, the Arbitral Tribunal decided that it had no
jurisdiction to hear the case under the LOSC. The Arbitral Tribunals interpretation
of LOSC Article 281 has been widely criticised as being too broad.48 However,
even taking the Tribunals view as a basis, a climate change case under the LOSC
Plant Case (Ireland v. United Kingdom), PCA Presidents Statement of 13 June 2003,
paragraph 11, http://www.pca-cpa.org/showpage.asp?pag_id=1148.
45LOSC Article 281(1) reads as follows: If the States Parties which are parties to a dispute
concerning the interpretation or application of this Convention have agreed to seek
settlement of the dispute by a peaceful means of their own choice, the procedures
provided for in this Part apply only where no settlement has been reached by recourse
to such means and the agreement between the parties does not exclude any further
procedure.
46Arbitral Tribunal Constituted under Annex VII United Nations Convention on the Law
of the Sea, Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Award on
Jurisdiction and Admissibility, Decision of 4 August 2000, (2000) 39 ILM 1359 (SBT
Arbitral Award).
47Convention for the Conservation of Southern Bluefin Tuna, opened for signature 10 May
1993, entered into force 30 May 1994, 1819 UNTS 360 (CSBT Convention).
48Cf. only Alan Boyle, Southern Bluefin Tuna Cases, in Rdiger Wolfrum (ed.), The Max
Planck Encyclopedia of Public International Law, Oxford, online edition, www.mpepil
.com, paragraphs 1419; Wolfrum, Streitbeilegungssystem, 469; Donald R. Rothwell
and Tim Stephens, Dispute Resolution and the Law of the Sea: Reconciling the
Interaction Between the LOS Convention and Other Environmental Instruments, in
Alex G. Oude Elferink and Donald R. Rothwell (eds.), Oceans Management in the 21st
Century: Institutional Frameworks and Responses (Leiden: Martinus Nijhoff Publishers,
2004), 209230, 221; David A. Colson and Peggy Hoyle, Satisfying the Procedural
Requirements to the Compulsory Dispute Settlement Mechanism of the 1982 Law
of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right? Ocean
Development & International Law, 34 (2003): 5982. But see Barbara Kwiatkowska,
The Southern Bluefin Tuna Arbitral Tribunal Did Get It Right: A Commentary and
Reply to the Article by David A. Colson and Dr. Peggy Hoyle, Ocean Development &
International Law, 34 (2003): 369395.
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could potentially be framed so as to lead to a different outcome. This is because
an essential element in the reasoning of the Tribunal was that the dispute under
the regional implementation agreement and under the LOSC constituted the
same dispute. In the words of the Tribunal, the parties were grappling not with
two separate disputes but with what in fact is a single dispute arising under
both Conventions.49 The climate regime, however, is not an implementation
agreement to the LOSC, and the dispute would not necessarily revolve around
the same obligations. The goal of legal action under the climate regime would
be to make the respondent comply with its obligations under the UNFCCC and
the Kyoto Protocol. But it is obvious that the obligations these treaties establish
are insufficient to effectively protect the climate. A dispute under the LOSC
seeking to save the marine environment from climate change damage would
therefore exceed the scope of the climate regime. It would not only be aimed
at enforcing the climate regime, but at imposing farther-reaching obligations to
reduce greenhouse gas emissions. The question, which will be addressed in the
next section, is whether the LOSC actually provides a legal basis for making such
a far-reaching claim.
Another condition for the applicability of Part XV set by LOSC Article 281 is that
the agreement between the parties to settle the dispute by a peaceful means of their
own choice does not exclude any further procedure. The Arbitral Tribunal in the
Southern Bluefin Tuna case held that this exclusion can also be implicit, relying on
the consensual nature of any reference of a dispute to judicial settlement under the
compromissory clause of the CSBT Convention.50 Following its reasoning, it
could be argued that the UNFCCC too implicitly excludes the LOSCs compulsory
dispute settlement procedure, given that it makes compulsory settlement of
a dispute arising under the Convention dependent on a prior declaration by the
parties and otherwise foresees a merely recommendatory award by a conciliation
commission as the definite endpoint of the dispute settlement process. The
Tribunals point of view is however not undisputed. Justice Sir Kenneth Keith,
in his separate opinion to the award, argued that given the presumption of the
parallel and overlapping existence of procedures for the peaceful settlement
of disputes appearing in international judicial practice and the general law of
treaties, an agreement excluding any further dispute settlement procedure
under the LOSC would need to contain strong and particular wording to this
effect.51 Similarly, in his separate opinion to the MOX Plant order, Judge Rdiger
Wolfrum expressed his belief that [a]n intention to entrust the settlement of
disputes concerning the interpretation and application of the Convention to
49SBT Arbitral Award, paragraph 54.
50Ibid., paragraphs 5659 and 63.
51Ibid., Separate Opinion of Justice Sir Kenneth Keith, paragraph 18.
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other institutions must be expressed explicitly in respective agreements.52 Since
such explicit wording is not to be found in the UNFCCC, it would not fall under
LOSC Article 281 according to this point of view.
Lastly, LOSC Article 281 requires the parties to attempt to reach a settlement
by recourse to the chosen means of dispute settlement before turning to the
compulsory procedure under the LOSC. Even if this provision was deemed not
to apply to climate change disputes, LOSC Article 283(1) contains a similar
procedural prerequisite by obliging the parties to proceed to an exchange of views
when a dispute arises between them. In the Southern Bluefin Tuna as well as in
the MOX Plant order, ITLOS held that a State party was not obliged to continue
with such an exchange of views when it concluded that the possibilities of
reaching an agreement had been exhausted.53 Given the current stalemate in the
international climate negotiations, such a conclusion seems obvious. However, in
both the Southern Bluefin Tuna and the MOX Plant cases, the tribunals also made
clear that prior negotiations had to be conducted under the LOSC, not only under
the other convention at issue.54 Before initiating the compulsory procedures of
Part XV, the applicant State would therefore have to notify the respondent of the
dispute under the LOSC and attempt to resolve it through amicable means.
In conclusion it can be said that the procedural obstacles to climate change
action under the LOSC posed by the first section of Part XV could perhaps be
overcome, although the outcome might depend on the forum that has been
chosen, as ITLOS for instance seems to be more willing to assert its competence
than arbitral tribunals.
Concretization of the LOSC through the Climate Regime?
Apart from the procedural level, the coexistence of the LOSC and the multilateral
climate regime also causes problems on the substantive side, as it raises the question whether the LOSCs provisions have been concretized or even supplanted by
the UNFCCC, the Kyoto Protocol, and perhaps even by subsequently developed
non-binding climate standards. Many of the LOSCs marine pollution provisions
refer to internationally agreed rules, standards and recommended practices and
procedures, suggesting that the force of their prescriptions is influenced and perhaps even conditioned by developments outside of the law of the sea regime.
52ITLOS MOX Plant Order, Separate Opinion of Judge Rdiger Wolfrum.
53The Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional
Measures, Order of 27 August 1999, ITLOS Cases No. 3 & 4, www.itlos.org (ITLOS SBT
Order), paragraph 60; ITLOS MOX Plant Order, paragraph 60.
54ITLOS SBT Order, paragraph 57; SBT Arbitral Award, paragraphs 27 and 55; ITLOS MOX
Plant Order, paragraph 58.
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LOSC Article 212 dealing with pollution from or through the atmosphere is
such a framework provision which relies on sources outside the LOSC to give
it substance. Since marine pollution is mostly caused by private actors, the
provision, like the others contained in Section 5 of Part XII, does not impose
direct restrictions on States, but instead obliges them to adopt laws, regulations,
and other measures to prevent, reduce and control pollution. These legislative and
administrative measures must tak[e] into account internationally agreed
rules, standards and recommended practices and procedures.55 At the same
time, States are required to endeavour to establish such global and regional
rules, standards and recommended practices and procedures, acting especially
through competent international organizations or diplomatic conference. In the
context of climate change, these global rules and standards have been established
by the multilateral climate regime. Through the reference in Article 212, they
are incorporated in the LOSC.56 While it is disputed whether the standards set
by multilateral environmental agreements are only binding on all States parties
to the LOSC if they represent customary international law, or whether, through
the incorporation in the LOSC, their standards also apply to States that have not
ratified them even if they have not attained customary status,57 this question is
not very relevant in the present context, because almost all States participate in
the international climate regime.58
Since the normative content of LOSC Article 212 is therefore influenced by the
climate regime, it is doubtful whether it has any farther-reaching prescriptive
force. In other words, it can be argued that LOSC Article 212 does not oblige
States to adopt measures that are more stringent than those agreed upon in
the international climate negotiations. On the other hand, by incorporating its
standards, LOSC Article 212 could provide a legal avenue for States to challenge the
non-implementation of the climate regime by other States. In terms of concrete
emission targets, this arguably refers not only to the emission reduction obligations
55LOSC Article 212(1).
56See, Hafner, Meeresumwelt, Meeresforschung und Technologietransfer, 391; Burns,
Potential Causes of Action for Climate Change Damages in International Fora: The
Law of the Sea Convention, 47. See also generally, Natalie Klein, Dispute Settlement
in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press,
2005), 159.
57See Klein, Dispute Settlement, 150 and 160; Firestone and Jarvis, Response and
Responsibility, 130; Rosemary Rayfuse, Mark G. Lawrence, and Kristina M Gjerde,
Ocean Fertilization and Climate Change: The Need to Regulate Emerging High Seas
Uses, The International Journal of Marine and Coastal Law, 23 (2008): 297326, 311
and 317.
58Even the United States, which refused to ratify the Kyoto Protocol, has assumed targets
under the voluntary bottom-up approach of the Copenhagen Accord. Of course,
since the United States is not a party to the LOSC either, this is unlikely to become
relevant.
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set by the Kyoto Protocol, but also to the non-binding targets assumed by States
under the Copenhagen Accord, because LOSC Article 212 explicitly differentiates
between internationally agreed rules and standards, thus acknowledging that
the latter need not be legally binding.59 This in itself would be a remarkable
outcome, as climate action through the back door of the LOSC would endow
the Copenhagen pledges with a legal force they were not originally intended to
have, and moreover subject their implementation to judicial review.60
However, it is not certain that LOSC Article 212 could be used to challenge
domestic inaction to implement the negotiated climate targets, given that it only
requires States to take into account internationally agreed rules and standards
when formulating their national policy. This weaker formulation is used in the
provisions dealing with forms of land-based pollution,61 where considerations of
national sovereignty weigh heavier than with regard to pollution from seabed
activities, by dumping, or from vessels, where national measures must be no less
effective than international rules and standards.62 The different wording suggests
that States have a certain leeway in implementing international obligations
relating to pollution from or through the atmosphere. Then again, LOSC Article
222 dealing with enforcement requires States to adopt laws and regulations to
implement applicable international rules and standards once these have been
elaborated by competent international organizations or diplomatic conference,
as called for in LOSC Article 212(3). If the climate regime, which was concluded
after the LOSC, is seen as answering this call for the establishment of global
standards, its enforcement would demand the adoption of national legislation
mirroring its commitments.
Another problem however is that if legal action under the LOSC were indeed
used to enforce the obligations contained in the climate regime, instead of duties
that go beyond it as contemplated in the previous section, the question would
arise again whether a dispute under the climate regime and the LOSC did not
in reality constitute the same dispute. This would not only make it harder to
overcome the procedural hurdle of LOSC Article 281, but resort to the LOSC might
then be considered an abuse of process.63
59Cf. Klein, Dispute Settlement, 160.
60Klein, Dispute Settlement, 161, argues that by incorporating standards from extraneous
sources and rendering them justiciable, the potential role for the mandatory procedures
in the Convention for the protection and preservation of the marine environment is
quite pervasiveperhaps more so than the drafters fully anticipated.
61LOSC Articles 207(1) and 212(1).
62Cf. LOSC Articles 208(3), 209 (2), 210(6), and 211(2).
63Cf. Klein, Dispute Settlement, 163. Note however that the Arbitral Tribunal in the
Southern Bluefin Tuna case did not find the proceedings brought before ITLOS and
before the tribunal itself to be an abuse of process, because, as it explained, they had
been productive. See, SBT Arbitral Award, paragraph 46.
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It could be argued that this normative concretization has not taken place with
regard to LOSC Article 194(2), which codifies the general no harm rule. However,
it must be kept in mind that with the UNFCCC and the Kyoto Protocol, as well as
the Copenhagen Accord, States have negotiated a multilateral regime designed
specifically to address the problem of global climate change. The concrete obli
gations set forth in this regime could be regarded as lex specialis to the general
obligation not to cause transboundary pollution damage. This would probably
be difficult to defend with regard to the UNFCCC, which contains no concrete
targets or timetables.64 Although the Convention can be interpreted as imposing
an obligation on States to reverse their long-term emission trends, because it is
clearly against its objective if States continually increase their emission levels, the
UNFCCCs standards are likely too vague to supersede the no harm rule. The same
cannot be said of the Kyoto Protocols quantified emission limitation and reduction
commitments for industrialised countries. There would be no incentive for
States to adopt these quantified targets if they could still be held responsible
for failure to implement stricter emission cuts under the no harm rule. The Kyoto
Protocol targets can then be seen as having a legitimising function, to the effect
that States that comply with them are protected from farther-reaching claims
under the no harm rule. It is doubtful whether the Copenhagen Pledges have the
same legitimising effect, given their voluntary nature. However, the no harm rule
itself only sets an amorphous standard, which requires the balancing of States
sovereign right to use their territory and its resources with their duty to protect
other States environment and sovereign integrity. It is not clear whether this
balancing act has guided States decisions in making their pledges under the
Copenhagen Accord, but it would likely be hard to prove that it did not.
For this reason, and because they are the result of an inclusive negotiation
process, it seems doubtful whether a court or tribunal would hold a State that
actually complied with its Kyoto Protocol targets or even its Copenhagen pledges
responsible for violating the no harm rule. This is especially true for developing
countries, which are exempt from mandatory obligations under the climate regime
in accordance with the principle of common but differentiated responsibilities. It
seems unlikely that this value judgment could be undermined by holding them
responsible for failing to curb emissions under the no harm rule, in particular
because the LOSC itself contains numerous provisions that foresee a preferential
treatment of developing countries.
64Its aim of returning the greenhouse gas emission of Annex I countries to 1990 levels
by the year 2000 is generally not seen as an enforceable legal commitment.
through the back door
695
The Problem of Establishing State Responsibility for Climate
Change
Even if the applicant could rely on an unfettered no harm rule as codified in LOSC
Article 194(2), this would not overcome the problem of establishing State responsibility for climate change. While the causality between increased greenhouse
gas levels in the atmosphere and ocean acidification can perhaps convincingly
be proven, the claimant State would need to show that the respondents failure
to reduce their emissions in line with their legal obligations caused the damage to
the marine environment.
The no harm rule is not a strict liability standard, but a general obligation of
due diligence. This was confirmed in the Advisory Opinion rendered by ITLOS
Seabed Disputes Chamber, which cited LOSC Article 194(2) as an example of
an obligation of conduct requiring States to exercise due diligence.65 As a due
diligence obligation, the no harm rule is conditioned by the requirements of
proportionality and foreseeability. Most commentators agree that 1990, the year
of the first Assessment Report by the Intergovernmental Panel on Climate Change,
should be adopted as the date from which on the dangers of climate change were
clearly foreseeable for States. This means that in order to comply with the no
harm rule, States should have undertaken proportionate measures since 1990 to
protect other States and the global commons against the consequences of climate
change. Moreover, assuming that the climate regimes targets are incorporated in
LOSC Article 212, industrialised States could be held responsible for that part of
their emissions since 1994 which exceeds their obligation to reverse their longterm emission trends, if it were agreed that the UNFCCC establishes such a legally
binding obligation. Industrialised parties to the Kyoto Protocol could in addition
be held responsible for those emissions that exceed the Kyoto Protocol targets
between 2008 and 2012. And in 2020, States could be challenged for their nonimplementation of the Copenhagen pledges. But although it is therefore possible
to establish breaches by States of their conventional and customary duties to
regulate greenhouse gas emissions, due to the laxity of the current climate regime
and the malleability of the customary no harm rule, only a small fraction of all
greenhouse gases released worldwide has been and is being emitted in violation
of legal standards. Given the weight of historic emissions and the large bulk of
present-day emission that are still being emitted legally, it is questionable
whether the applicant could show that the failure by the respondent States, even
if those were the major emitters, to comply with their obligations caused the
detrimental impacts on the oceans. The LOSC court or tribunal would therefore
have to apply a modified concept of cumulative causation which relies on the
65Seabed Disputes Chamber Advisory Opinion, paragraph 113.
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relative contributions by States.66 This approach finds support in the fact that
LOSC Article 194(1) obliges States not only to prevent and control, but also to
reduce pollution. However, it is questionable whether the relief ordered on this
basis would be as far-reaching as aimed for by the applicant.
The Possible Outcome of Successful Proceedings
This leads to some final reflections on the possible outcome of successful
proceedings under the LOSCs compulsory dispute settlement mechanism. It
is important to note that the goal of the applicant would be not so much to
receive compensation for damage already inflicted, but to influence the future
conduct of the major emitters. According to the Intergovernmental Panel on
Climate Change, a realistic chance to achieve the 2 degree Celsius goal set in
Copenhagen would necessitate global emission cuts of 50 to 85 per cent from
2000 levels by 2050.67 Cuts of this magnitude would require a comprehensive
economic transformation away from fossil fuels. It is doubtful that a court could
or would order this. In the United States, courts in this situation often refer to
the political question doctrine.68 International courts might not be as deferent
to national politics, but they also could not solve the underlying problem, which
is that States are unwilling to adequately address the problem of climate change
in the absence of a global solution. No court order can fundamentally change this,
and it is likely that a court would be aware of this. Instead of imposing a definite
obligation to reduce emissions by a certain amount, which would in any case
only apply to the respondents before it, a court or tribunal would therefore likely
request the parties to cooperate and negotiate in good faith to find a commonly
accepted solution.69 In the end, this was essentially the outcome of the Southern
66Such a standard of contributory causality has been endorsed by the United States
Supreme Court in Massachusetts vs. EPA, 20.
67See, Intergovernmental Panel on Climate Change, Summary for Policymakers, in
Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: IPCC,
2007), 15.
68See, Marilyn Averill, Case Note: Getting Into Court: Standing, Political Questions and
Climate Tort Claims, Review of European Community & International Environmental
Law, 19 (2010): 122126.
69In the MOX Plant case, ITLOS found that the duty to cooperate is a fundamental
principle in the prevention of pollution of the marine environment under Part XII
of the Convention and general international law and that rights arise therefrom
which the Tribunal may consider appropriate to preserve [...]. ITLOS MOX Plant
Order, paragraph 82. See also, the Separate Opinion by Judge Rdiger Wolfrum, who
called the obligation to cooperate a Grundnorm of Part XII of the Convention, as of
customary international law for the protection of the environment and the overriding
principle of international environmental law.
through the back door
697
Bluefin Tuna cases, where the aim also was to return a stalled treaty system back
to functionality.
In fact, it can be argued that this is the only possible outcome of judicial
proceedings when negotiations are ongoing simultaneously in an international
forum which is the only one capable of effectively addressing the problem as a
common concern of humankind. In this case, adversarial proceedings not only
have little actual effect, because they only apply between the parties, but they
might even be counterproductive, since they automatically put the respondent
States in a defensive position.70 In light of this, the path chosen by Palau to initiate
a request for an advisory opinion from the ICJ seems like the better strategy.71
However, instead of asking whether the emission of greenhouse gases violates the
no harm rule, a question that is hard to answer in the abstract, it might be more
useful to ask whether the international climate negotiations are being conducted
in good faith, in view of the scientific urgency of climate change.72 The advisory
opinion would then determine whether States live up to their obligation to enter
into negotiations with a view to arriving at an agreement, and not merely to go
through a formal process of negotiation and to conduct themselves that the
negotiations are meaningful, which will not be the case when either of them
insists upon its own position without contemplating any modification of it.73
In conclusion, it can be said that there are likely no judicial shortcut solutions
to climate change. As one commentator remarked in 2009, Copenhagen cannot
70For this reason, it is doubtful whether the frequently expressed hope that adversarial
proceedings, even if unsuccessful, might induce States to increase their efforts to
combat climate change, is justified.
71 Of course, a State could also decide to request an advisory opinion from ITLOS.
Article 138(1) of the Rules of the Tribunal provides that ITLOS may give an advisory
opinion on a legal question if an international agreement related to the purposes of
the Convention specifically provides for the submission to the Tribunal of a request
for such an opinion. One possibility might be for the State to conclude an agreement
with a likeminded State that foresees the submission of such a request. The author
would like to thank David Freestone for drawing her attention to this point. See also
the address delivered by ITLOS President Rdiger Wolfrum on 28 November 2005, UN
Doc. A/60/PV.55 (2005), 27, who noted that advisory proceedings before ITLOS could
be of particular assistance to parties to a dispute in the process of reaching a solution
by negotiation.
72This has also been suggested by Alexander Gillespie, Small Island States in the Face of
Climatic Change: The End of the Line in International Environmental Responsibility,
UCLA Journal of Environmental Law & Policy, 22 (2003/2004): 107129, 129. Framed in
this way, the question would be difficult to relate to the purposes of the LOSC, so that
the ICJ would appear as its natural addressee.
73North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. Netherlands), Judgment of 20 February 1969, (1969) ICJ Reports
3, 48. See also Cameron Hutchison, The Duty to Negotiate International Environmental
Disputes in Good Faith, McGill International Journal of Sustainable Development Law &
Policy, 2 (2006): 117153.
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jenny grote stoutenburg
be avoided.74 Unfortunately, the same arguably holds true for the arduous climate
summits that are yet to come. As long as the political will is missing, adversarial
proceedings are unlikely to produce any farther-reaching results. On the other
hand, an advisory opinion from an international court or tribunal could perhaps
promote this political will, by establishing whether the parties are negotiating in
good faith.
74Tomuschat, Global Warming and State Responsibility, 29.
chapter Thirty-One
Principles and Normative Trends in EU Ocean Governance
Ronn Long*
Introduction
The regulation of maritime activities is undergoing fundamental change in the
European Union (EU). Much of this change is orchestrated under the rubric of
the so-called EUs Integrated Maritime Policy (IMP) and is aimed at promoting a more harmonious and efficient approach to ocean governance by the EU
and the Member States. In parallel with this development, the EU is supporting
several academic research projects that are exploring different ways to improve
marine resources management in the EU. Among these projects, the ODEMM
project1 is reviewing management options that will improve the implementation
of the ecosystems approach in the European marine environment in line with the
obligations set down in a new generation of EU Directives including the Marine
Strategy Framework Directive (MSFD) and its more complex sister the Water
*Jean Monnet Chair European Law, School of Law, National University of Ireland Galway,
Ireland and Managing Director, Marine Law and Ocean Policy Research Services Ltd.
1This acronym refers to Options to Deliver Ecosystem-Based Marine Management. This
project is supported by the European Commissions 7th Framework Research Programme, Theme ENV.2009.2.2.1.1, Project No. 244273. Further information: http://www
.liv.ac.uk/odemm/. The author wishes to acknowledge the comments and proof reading
skills of Margaret Armstrong MSc and Erin McVeigh in preparing this chapter, which
remains the sole and original work of the author.
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Framework Directive (WFD),2 as well as the Habitats and Birds Directives,3 to
name but a few.
One common feature in these instruments is that they codify a number of
fundamental principles that are applicable to the task of maritime regulation and
ocean governance in the EU. This is not a unique development, stemming from
the sui generis nature of the European legal order, as many similar principles
permeate a growing range of multilateral and regional agreements that set down
legally binding obligation for the EU and the Member States in relation to the
protection and preservation of the marine environment and the resources that it
supports. Unsurprisingly, these normative influences are also at the heart of the
ten principles identified by the International Union for Conservation of Nature
(IUCN) that are applicable to modern ocean governance.4 They are clearly germane to managing the jurisdictional overlaps and conflicts arising between the
various maritime sectors that come within the scope of EU law and policy. Their
application is necessary because in the words of the European Commission all
matters relating to Europes seas and oceans are interlinked and maritime sector
policies need to be coherent and integrated.5 They are thus a vital mechanism for
mitigating the environmental effects of maritime activities, a key objective of the
IMP and its so-called environmental pillar the MSFD.
With this in mind, the overall focus of this chapter is to describe a number
of key ocean governance principles that are applicable to the nascent IMP and
to present a brief assessment of their status and effectiveness within the European legal order. In order to tackle this subject, this chapter describes briefly the
objectives and legal basis of the IMP and goes on to outline four of the principles
that are beginning to shape various aspects of the EUs approach to maritime
2Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008
establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) OJ L 164/19, 25 June 2008. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000
establishing a framework for Community action in the field of water policy, OJ L 327/1,
22.12.2000. For commentary on the MSFD see, Ronn Long, The EU Marine Strategy
Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services, Journal of Energy
and Natural Resources Law, 29 (1) (2011): 145.
3Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats
and of wild fauna and flora OJ L 2067, 22.7.1992; Council Directive 2009/147/EC of the
European Parliament and of the Council of 30 November 2009 on the conservation of
wild birds OJ L 20/7, 26.1.2010.
4See, David Freestone, Principles Applicable to Modern Oceans Governance, International Journal of Coastal and Marine Law, 23(3) (2008): 385391; David Freestone, The
Modern Principles of High Seas Governance. The Legal Underpinnings, International
Environmental Policy and Law, 39(1) (2009): 4449.
5European Commission, An Integrated Maritime Policy for the European Union, COM
(2007) 575.
principles and normative trends in eu ocean governance
701
policy and regulation in general. As will be seen below, some of these principles
have a clear legal basis in the EU Treaties such as the principle of sustainable
development, the requirement to integrate environmental considerations into
EU policies, and the precautionary principle.6 Others are relatively new and are
shepherded onto the EU legal landscape by secondary legislative instruments
such as the MSFD. The latter, for example, provides a sophisticated scheme for
the application of the ecosystem approach to the task of ocean management on
a regional basis in the absence of definitive scientific knowledge regarding the
functioning of marine ecosystems and the resources that they support.7
Apart from the principles that are canvassed in this paper, there are of course
many other normative influences that are shaping the implementation of EU legislative instruments such as the MSFD. Indeed, as far back as 1998, the authoritative journal Science published a thought provoking article based on a scientific
workshop conducted in Lisbon which called for the implementation of six core
principles to guide governance regarding the use of ocean resources and to promote sustainability, namely: responsibility, scale-matching, precaution, adaptive management, full cost allocation, and participation.8 As will be seen below,
within the decade, the European approach to ocean governance embodies similar
principles to those advocated in the Science article. Before pressing ahead and
delving further into these matters, it is pertinent to our discussion to highlights
the significance and place of these principles within the European legal order as
it applies to the marine environment.
How Important are the Normative Principles?
In order to understand why EU maritime governance and regulation are changing it is essential to understand some of the principles that inform and shape
its development. In addition, the codification by the EU of certain core principles applicable to the task of ocean governance is noteworthy for several
6Articles 11 and 191 of the Treaty on the Functioning of the European Union (TFEU). The
Treaty on European Union (TEU) and TFEU came into force on 1 December 2009 as a
result of the ratification of the Lisbon Treaty by the 27 Member States. A copy of the
Consolidated Treaties is published in the Official Journal of the European Union at OJ C
306/50, 17.12.2007.
7Ronn Long, Legal Aspects of Ecosystem-Based Marine Management in Europe, in
Aldo Chircop,Moira L. McConnell, Scott Coffen-Smout (eds.), Ocean Yearbook, Volume
26 (Boston/Leiden: Brill Academic Publishers, 2012), 417484.
8Robert Costanza Francisco Andrade, Paula Antunes et al., Principles for Sustainable
Governance of the Oceans (1998) 281 (5374) Science, 198199. Also see, Lisbon principles of sustainable governance in Cutler Cleveland (eds.), Encyclopaedia of Earth
(Washington, D.C.: Environmental Information Coalition, National Council for Science
and the Environment).
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well-documented reasons. Firstly, some of these principles are mentioned
expressly in the European Treaties, albeit in an environmental law context, and
therefore they constitute primary sources of EU marine environmental law.9 As
such, they can be used by the Court of Justice of the EU to interpret or supplement
other sources of EU law such as regulations, directives and decisions.10 Secondly,
they provide us with the raison dtre of instruments such as the MSFD and WFD.
Indeed, the European institutions have clearly stated that measures adopted by
Member States to give effect to the obligations that arise under the MSFD should
be based the ecosystem-based approach and the various environmental principles set down in the Treaties, in particular the precautionary principle.11 Thirdly,
as is well known, many European maritime activities have a worldwide footprint
and the EU has actively sought to promote its position as an international leader
in maritime affairs at a global level.12 In this context it should not be forgotten
that the EU has legal personality and is party to many international agreements
including the United Nations Convention on the Law of the Sea13 (LOSC) and its
related agreements, which in the words of the Court of Justice form an integral
part of the EU legal order.14 As noted by Professor Freestone and the IUCN, these
agreements codify many similar principles and therefore set down the normative
parameters for ocean governance both within and beyond the EU.15 Fourthly and
following on from the previous point, the EU is an important source of marine
environmental law in its own right and therefore it is crucial that the international community keeps pace with best practice in the EU regarding the regulation and management of offshore activities.16 Such an exercise is all the more
pertinent in view of the fact that the Court of Justice has long since identified
environmental protection as one of the EUs essential objectives.17
9Article 191(2) of the TFEU.
10See for instance the approach of the Court to the application of the precautionary principle in EU law, discussed infra.
11 Recital 44 of the MSFD.
12See, Communication from the Commission of 15 October 2009Developing the international dimension of the Integrated Maritime Policy of the European Union, COM
(2009) 536 final. Not published in the Official Journal.
13United Nations Convention on the Law of the Sea, opened for signature 10 December
1982, entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
14 Council Decision of 8 June 1998 on the ratification by the European Community of the
Agreement for the implementing of the provisions of the United Nations Convention
on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory fish stocks. OJ L 189, 3.07.1998, 14.
Entered into force 18.01.2004. Case 13/00 Commission v Ireland [2002] ECR I-2943 paragraph 14. Also note, Article 216(2) of the TFEU.
15 Freestone, Principles Applicable to Modern Oceans Governance,
16 Ronn Long, The EU and the Law of the Sea Convention at the age of 30, The International Journal Marine and Coastal Law, 27(4), 2012: 711721.
17 Case 240/83 Procureur de la Rpublique v ADBHU [1985] ECR 531.
principles and normative trends in eu ocean governance
703
When considering the importance of these principles it must be kept in mind
that several international organisations and European research projects, including the ODEMM project, have revealed that the EU is facing major challenges in
relation to the conservation and management of offshore resources stemming
from unsustainable fisheries, biodiversity loss, eutrophication, pollution, and
climate change.18 These problems have multiple causes and demand a much
broader regulatory response than the traditional light touch sector-orientated
legislation favoured heretofore by the Member States and offshore industries.
This is particularly evident when one takes into account the preliminary findings
of the ODEMM project which suggests that several of the high-level operational
objectives (described as descriptors) set down under the MSFD relating to nonindigenous species, commercial fish and shellfish, food webs, seafloor integrity
and marine litter have a high risk of failure in achieving the prescribed threshold of good environmental status by 2020 in line with the scheme set down by
the Directive.19
In light of these findings, the EU regulatory response needs to be flexible
and underpinned by a normative approach that provides for sustainable ocean
use, the adoption of precautionary measures, and the management of the various sector activities and policies in an integrated manner. Indeed, the principles reviewed in this paper, if applied properly, ought to facilitate the transition
from the current fragmented regulatory regime that applies to offshore activities
in the wider European environment to a system of integrated management which
balances the short-term economic objectives with long-term ecosystem sustainability objectives set down by instruments such as the MSFD, the Habitats Directive, the European Commissions Blue Book, and the Guidelines for the Integrated
Approach to Maritime Policy. This is one of key tasks of the ODEMM project,
which is developing a set of fully-costed ecosystem management options for this
purpose.
Turning now to the term ocean governance, which is an obvious starting
point for the rest of our discussion.
Ocean Governance
Governance as a term-of-art is open to many definitions and often appears as an
umbrella or catch-all term in the specialist literature to describe any strategy,
18See, for example, OSPAR Quality Status Report 2010 (London, OSPAR Commission,
2010); Temel Oguz et al., Current state of overfishing and its regional differences in
the Black Sea 58 (2012) Ocean and Coastal Management 4756.
19Anthony Knights et al., Sustainable use of European regional seas and the role of the
Marine Strategy Framework Directive in Options for Delivering Ecosystem-based Marine
Management (Liverpool: University of Liverpool, 2011), 1165 at XIII.
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tactic, process, procedure, or programme for controlling, regulating shaping, mastering or exercising authority over others in a nation, organization or locality.20
Similarly, the term ocean governance remains undefined in EU law and it may
therefore be appropriate to draw upon a frequently cited political science perspective in the United States, which describes it as:
those formal and informal rules, arrangements, institutions and concepts which
structure the ways in which sea space is used, how ocean problems are monitored
and assessed, what activities are permitted or prohibited, and how sanctions are
other responses are applied.21
Although there is a maturing body of specialist academic commentary on the
subject matter, some of it undertaken within the framework of the ODEMM
project,22 the concept of ocean governance remains very much an open-ended
hypothesis from a legal perspective.
In the context of European maritime affairs it appears, prima facie, to embrace
a complex array of legal actors (both public and private), instruments and sector policies that operate at international, regional and national levels within the
Member States. Further complexity in relation to the EU is added by constraints
such as: the unique institutional architecture of the European institutions; the
divergence of Member States interests in relation to the various activities in
the maritime domain; the cumbersome division of legal competence between the
EU and the Member States regarding the regulation of maritime sectors such as
fisheries and transport; as well as the differences that exist between the juridical and administrative systems that are in operation in the twenty-three coastal
Member States.
Undoubtedly, all of these factors are influencing the attainment of the objectives of the IMP.
What are the Objectives of the IMP?
Surprisingly enough, there is no definitive or easy answer to this question as the
objectives of the IMP are very much the outcome of the policy process and thus
subject to the cut and thrust of political imperatives within the EU institutions.
20See, Nicholas Rose, Powers of Freedom: Reframing Political Thought (Cambridge: CUP,
1999), 15. Also David Levi-Faur, Oxford Handbook of Governance (Oxford: OUP, 2012).
21See, Lawrence Juda and Timothy Hennessy, Governance Profiles and the Management
of the Uses of Large Marine Ecosystems, Ocean Development and International Law,
32/1 (2001): 61, 74, cited in Donald Rothwell and Tim Stephens, The International
Law of the Sea (Oxford and Portland: Hart Publishing, 2001), 462.
22See, inter alia, Judith Van Leeuwen, Luc Van Hoof, Jan van Tatenhove, Institutional
Ambiguity in implementing the European Union Marine Strategy Framework Directive, Marine Policy, 36(3) (2012): 636643.
principles and normative trends in eu ocean governance
705
This is evident if one examines the complex labyrinth of publications emanating from the EU institutions on the subject matter of the IMP.23 These reveal
that much of the original vision for the policy was largely hortatory in nature
and aimed at cajoling various parties into establishing coherent structures and
procedures for maritime policy decision-making in the Member States. Conspicuously, since the initial launch of the policy, European institutions appear to have
taken slightly different perspectives on the core objectives of the IMP. In 2007,
for example, the European Commission stated that an integrated policy:
will enhance Europes capacity to face the challenges of globalisation and competitiveness, climate change, degradation of the marine environment, maritime safety
and security, and energy security and sustainability.24
At that particular time, the primary goal of the policy was to develop and implement integrated, coordinated, coherent, transparent and sustainable decisionmaking in relation to the oceans, seas, coastal, insular and outermost regions and
in the maritime sectors.25 The same year, similar strategic thinking on the topic
of ocean governance is also evident in the conclusions of the December European
Council meeting, which fully endorsed the principal thrust of the policy and suggested the following objectives:
The future IMP should ensure synergies and coherence between sectoral policies,
bring added value and fully respect the principle of subsidiarity. Furthermore, it
should be developed as a tool to address the challenges facing Europes sustainable
development and competitiveness. It should take particular account of the different
specificities of Member States and specific maritime regions which should call for
increased cooperation, including islands, archipelagos and outermost regions as well
as of the international dimension.26
Again in 2009 and partly in response to the European Commissions progress
report on the implementation of the IMP, the General Affairs Council of the EU
(made-up of the Ministers from the Member States) reaffirmed the importance
of a whole Pandoras Box of objectives for the IMP.27 In particular, the Council called for the implementation of a suite of management measures including:
23Communication published by the European Commission COM (2005) 504 and COM
(2005) 505; the 2006 Green Paper on the subject COM 2006275. The subsequent
proposal from the Commission (commonly referred to as the Blue Book) accompanied
by an Action Plan in 2007, COM (2007) 575 and SEC 20071278. Also see, Report on
the Consultation processCOM(2007) 574.
24COM (2007) 575 at 23.
25Ibid.
26Doc. 16616/1/07, REV 1, Presidency Conclusions of European Council Meeting, Brussels,
14.02.2008, paragraph 58, http://www.consilium.europa.eu/ueDocs/cms_Data/docs/
pressData/en/ec/97669.pdf
27SEC (2009) 1343. General Affairs Council, 16.11.2009. Press Release 15913/09. http://
www.consilium. europa.eu/uedocs/cms_data/docs/pressdata/en/gena/111231.pdf.
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cross-cutting policy tools, maritime spatial planning, integrated maritime surveillance, sea-basin strategies, enhanced regional cooperation; further linkages
between the IMP and the climate change policy; an Action Plan for European
Maritime Transport; and the strengthening of global maritime governance on
matters such as piracy, IUU fishing, and the protection of sensitive ecosystems.28
A brief perusal of soft law publications reveals that the relationship between
economic development and marine environmental protection has peppered EU
institutional statements on the IMP since its inception. Most notably, the Commission has concentred on the economic theme in recent years and emphasised
that the,
aim of the IMP is to promote the sustainable growth of both the maritime economy
in particular, and the coastal regions more generally, by improving coordination
between the different sectoral policies and by developing crosscutting tools.29
The preponderance of economic considerations is also very evident in the position taken by the European Parliament which has expressed the view that the
primary objective of the IMP,
is to maximise the sustainable development, economic growth and social cohesion of
coastal, island and outermost regions through coherent and coordinated maritimerelated policies and relevant international cooperation.30
Apart from the rather nebulous objective of enhancing the visibility of maritime
Europe, the Parliament has identified three immediate objectives for the IMP
under the current programme for the period 20112013.31 Briefly paraphrased,
these include: supporting the development and implementation of sea-basin strategies for the various regional seas such as the Baltic Sea, the Mediterranean Sea,
the Black Sea and the Atlantic Ocean;32 promoting the protection of the marine
environment, in particular its biodiversity under a range of EU legal instruments
such as the Habitats and Birds Directives; and supporting sustainable economic
and regional growth in maritime sectors with an emphasis on the development
of new technologies and industrial innovation.33
When viewed from a distance, one can easily see that the central thrust of
the IMP is on economic uses of the marine environment, which is conditioned
occasionally by oblique references to the requirement of sustainable use or in
28Ibid.
29COM (2009) 536 final, Brussels, 15.10.2009.
30European Parliament Report on the proposal for a regulation of the European Parliament and of the Council establishing a Programme to support the further development
of an Integrated Maritime Policy, COM(2010)0494C70292/20102010/0257(COD),
30.05.2011.
31 Ibid.
32Ibid.
33Ibid.
principles and normative trends in eu ocean governance
707
some instances balanced by reference to the need for responsible stewardship
of the marine environment. When discussing this aspect of the IMP, however,
we should keep firmly in mind that the EU Treaties set down a broad range of
economic, social, political and environmental objectives for the EU.34 In this
context, it needs to be emphasised that the policy has to satisfy certain legal
requirements (emphasis added) under the Treaties, including inter alia: a high
level of protection and improvement in the quality of the environment, a prudent
use of natural resources, the promotion of scientific and technological advancement, and the strict observance and development of international law.35 The latter extends to the promotion of measures at an international level to deal with
regional or worldwide environmental problems including measures to combat
climate change.36 As is evident in the ODEMM project, EU secondary legislation
as well as many regional agreements spell-out in far greater detail operational
objectives and milestones for achieving good environmental status in the European regional seas.37
Quite clearly, achieving the correct balance between the divergent and numerous objectives of the IMP is one of the most difficult challenges facing the EU
and the Member States regarding maritime regulation and ocean governance in
general. This task is frequently compounded by the absence of definitive science
regarding the status of the marine environment.38 In striking this balance, however, it is impermissible for the European institutions to ignore the legal obligations that arise in relation to protection and preservation of the environment
under the Treaties when discharging their key functions in the law-making and
law enforcement processes.
This leads directly to the main argument presented in this chapter, namely:
that environmental legal principles and approaches will continue to play a crucial role in shaping the substance and direction of EU policy and law on maritime
matters, irrespective of the contemporary emphasis on economic considerations
and the implementation of fiscal austerity programmes in several Member States.
Furthermore, it should not be forgotten that all of the principles are supplemented by the legal requirements to undertake strategic and project environmental assessment, as well as to ensure public participation in the decision-making
processes concerning environmental matters. All of these requirements, which
exist as independent legal obligations under various EU Directives,39 can make a
34Article 3 of the TEU
35Article 3(3) and Article 191 of the TFEU.
36Article 191(1) of the TFEU.
37Patricia Breen et al., A review of operational objectives in European Regional Seas
(Liverpool, University of Liverpool, 2011).
38See footnote 18.
39Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the
assessment of the effects of certain public and private projects on the environment OJ
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vital contribution towards the overall attainment of the objectives of sustainable
development, economic growth, social cohesion and environmental protection
in the Member States.
Absence of a Specific Legal Basis in the Treaties
The IMP lacks an express legal basis in EU Treaties.40 At first sight, this appears to
be a significant lacuna as one of the core principles of EU law is that the EU can
only act within the limits of the powers conferred upon it by the Member States
pursuant to the Treaties.41 Furthermore, specific treaty provisions determine the
law-making and voting procedures that must be followed in the EU institutions in
relation to the preparation and subsequent adoption of draft legislation. Indeed,
the use by the EU institutions of an incorrect legal basis in the Treaties in bringing forward draft legislation may lead to annulment proceedings subsequently in
the Court of Justice of the EU.42
This lacuna, on the other hand, should not be overstated as it does not impede
the European institutions from taking appropriate legislative action in the field of
maritime affairs under the treaty provisions applicable to various policies such as
fisheries, environment, transport, energy, budgetary and fiscal matters, research,
tourism and the regions. Generally, it is well settled in the case law that the
choice of legal basis for a regulatory measure must rest on objective factors that
are amenable to judicial review and that if there is more than one legal basis in
the Treaty then the measure must be based on the legal basis that addresses the
predominant purpose of the instrument.43 In exceptional circumstances, if a legislative proposal pursues a number of objectives such as is the case with the IMP,
then the measure can be rooted in more than one legal basis in the Treaties.44
This broad brush method of law-making remains controversial and is sometimes disputed by the Member States and the various EU institutions involved
in the law-making process.45 When considering the IMP, however, one can see
L 073/5, 14.03.1997 (the EIA Directive); Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain
plans and programmes on the environment OJ L 197, 21.7.2001; Directive 2003/4/EC
of the European Parliament and of the Council of 28 January 2003 on public access to
environmental information and repealing Council Directive 90/313/EEC OJ L 041/26,
14.02.2003.
40See footnote 5.
41Article 5(2) of the TEU.
42Article 263 of the TFEU.
43Case 176/03 Commission v Council [2005] ECR I-7879; Case C-91/05 Commission v.
Council [2008] ECR I-3651
44Case C-338/01 Commission v. Council [2004] ECR I-4829.
45See, Alina Kaczorowska, European Union Law, 2nd edition (London: Routledge-Cavendish,
2011), 219221.
principles and normative trends in eu ocean governance
709
considerable merit in this regulatory technique as it provides a large degree of
flexibility for the EU legislature when bringing forward legislative proposals that
reflect the diversity and plurality of the activities that take place in the marine
environment. This can be seen in a recent Parliament and Council Regulation
establishing a programme of measures under the IMP for the period 20112013 in
the areas of policy, governance, sustainability and surveillance.46 This Regulation
has regard to nine different legal provisions in the Treaty on the Functioning of
the European Union (TFEU)47 ranging from the provisions in the Treaty on the
common fisheries policy (CFP), the environment and transport policies, the competitiveness of the EUs industry, as well as many other sector policies.48 Indeed,
one of the main objectives of this particular Regulation is to promote economic
growth, innovation and employment in the Member States, as well as the use of
marine and coastal resources in a sustainable manner.
In practice, the absence of an express legal basis for the IMP in the Treaties means that the EU law-making process is slow and requires a considerable
amount of administrative coordination internally within the European institutions. The absence of a Treaty basis also strongly suggests that the policy will
continue to evolve in a manner that is purposive in character and where a special
place is given to the marine environmental law principles such as those that are
the subject of this chapter.49 Of course, this technique has a number of drawbacks and means that it is exceedingly difficult to know the precise normative
weight the EU institutions give to a particular principle or concept in the lawmaking or policy implementation process. Furthermore, the boundaries between
policy, principles and substantive legal obligations are often blurred in EU legislative measures. This in turn has the potential to create problems regarding the
clarity and precise meaning of specific provisions in secondary legal instruments
that apply to the marine environment.50
46Regulation (EU) No 1255/2011 of the European Parliament and of the Council of 30
November 2011 establishing a Programme to support the further development of an
Integrated Maritime Policy, OJ L 321/1, 05.12.2011.
47Treaty on the Functioning of the European Union, opened for signature 13 December
2007, entered into force 1 December 2009, OJ C83/47, 30.3.2010.
48Articles 43(2), 91(1) and 100(2), 173(3), 175, 188, 192(1), 194(2) and 195(2) of the TFEU
are cited in this Regulation. In this context, it ought to be mentioned that the TFEU also
provides a general legal base (Article 352(1) of the TFEU) for EU legislative action if this
is necessary to attain one of the objectives set out in the Treaties. The Court has limited the scope of application of this catch-all-provision, which can only be relied upon
for the improvement of the conditions for the functioning of the internal market Case
C-491/01 [2002] ECR I-11453. In reality, few if any IMP objectives genuinely aim to
achieve this market integration goal and therefore it is highly unlikely that the more
goal focused IMP measures will be based solely on this provision in the Treaties.
49See discussion on trends in EU ocean governance infra.
50See, for example, the wide interpretation given by the Court to EU environmental directives in the following cases: Case C-337/89 Commission v UK [1992] ECR I-6103; Case
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Normative Influences on the IMP
As a general rule, the EU institutions use environmental principles and approaches
as a guide to law-making and regulatory action in the field of maritime affairs.
They are frequently used to supplement the substantive detail of regulatory measures adopted under various sector policies that are applicable to the conservation and management of marine resources and ecological systems, such as the
conservation targets that are set down under the CFP or the emission limits in
relation to vessel source pollution under the transport policy. They are intrinsic
to giving practical meaning to the MSFD and many other marine environmental legislative instruments. Importantly, as explained above, they ensure that the
IMP is not viewed solely through the cold prism of economic objectives but also
reflects more flexible environmental and social considerations. These principles
and approaches provide the policy backdrop for the IMP and establish a useful
paradigm for resolving competing values.
Despite the utility of a principle led approach in the policy process, it should
nonetheless be emphasised that they do not set down rigid and binding obligations with strict legal meaning in a given maritime context. This can be seen in
Re Peralta, which concerned the discharge of caustic soda into the Mediterranean
Sea by a vessel flying the Italian flag contrary to the Italian criminal code.51 In this
case, the Court of Justice held that the environmental principles set down in the
Treaty such as the preventative principle defined general objectives of the EU in
matters concerning the environment.52 As such, they did not preclude a Member
State from adopting stricter measures like the contested measure in Italian law,
which was upheld by the Court in that it prohibited all vessels, regardless of the
flag which they fly, from discharging harmful chemical substances into its territorial waters and its internal waters, or from imposing the same prohibition on
the high seas only on vessels flying the national flag, or, finally, in the event of
infringement, from penalizing masters of vessels who are nationals of that State
by suspending their professional qualification.53
From a maritime legal perspective, it should also be noted that much of the
jurisprudence of the Court of Justice on the precise meaning and applicability of
these principles in substantive areas of EU law has evolved in the context of cases
concerning the terrestrial environment.54 Furthermore, like many other normative standards, they are open to a number of interpretations under international,
C-56/90 Commission v United Kingdom [1993] ECR I-4109; Case C-494/01 Commission v
Ireland [2005] ECR I-3331; Case C-287/98 Luxemburg v Linster [2000] ECR 1-6917.
51Case C-379/92 Re Peralta [1994] ECR I-3453, para. 57.
52Ibid.
53Ibid., paras 58 and 59.
54Elizabeth Fisher, Bettina Lange, Eloise Scotford, Environmental Law: Text, Cases and
Material (Oxford: OUP, 2013) 415432.
principles and normative trends in eu ocean governance
711
EU, and national law in the Member States. Their importance and relevance to
the future development of the IMP should therefore not be underestimated and
demands comprehensive analysis that goes well beyond the limited scope of
this chapter, which is focused mainly on the principle of sustainable development, the requirement to integrate environmental considerations into EU policies,
and the precautionary principle. Very little is said about the ecosystem approach
as this is the subject matter of a number of separate publications associated with
the ODEMM Project.55
The Principle of Sustainable Development
There is some discussion in both international and EU law as to whether the
notion of sustainable development is a legal principle or a policy concept to be
applied in environmental and in natural resource management.56 Within the EU,
sustainable development is a EU Treaty objective and is specifically mentioned
in the Charter of Fundamental Rights of the EU.57 There are many references to
the principle in the TFEU, which clearly states that the EU must work as a global actor to achieve peace, security and sustainable development of the Earth.58
The TFEU expressly requires that environmental considerations are integrated
into EU policies with a view to promoting sustainable development.59 Nonetheless, within the European legal order, the precise normative value of this principle
is often disputed, with one authoritative commentator taking a very jaundiced
view and going as far as to say that the principle in the context of EU environmental law is devoid of legal meaning and is nothing more than a political concept for political actors.60
The precise normative value of the principle is further clouded by the Charter
of Fundamental Rights, which provides that,
a high level of environmental protection and the improvement of the quality of
the environment must be integrated into the policies of the Union and ensured in
accordance with the principle of sustainable development.61
55See, inter alia, Ronn Long, The EU Marine Strategy Framework Directive; and, Ronn
Long, Legal Aspects of Ecosystem-Based Marine Management in Europe, in Chircop,
McConnell and Coffen-Smout (eds.), Ocean Yearbook Volume 26, 417484.
56See, Phillippe Sands, Jacqueline Peel, Principles of International Environmental Law, 3
Ed., (Cambridge: CUP, 2012), 206209.
57Recital 9, and Articles 3(3) and (5) of the TEU, Article 11 of the TFEU. For a policy
update see, http://ec.europa.eu/environment/eussd/
58Article 3(5) of the TEU.
59Article 11 of the TFEU.
60See, inter alia, Ludwig Kramer, EU Environmental Law, 7th edition (London: Sweet and
Maxwell, 2011), 911, and especially 365.
61Article 51(1) of the Charter of Fundamental Rights.
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Although the Charter has the status of a primary source of EU law, it does not
create any new rights or indeed modify any of the powers and tasks that are set
out in the Treaties.62 The Charter does, however, underscore the importance of
the very general right to a clean environment.63
The Court of Justice of the EU has not amplified directly the precise meaning
of sustainable development in its jurisprudence but it has held that environmental considerations take precedence over economic imperatives in the designation and management of protected areas and species in the marine environment
under the Habitats and Birds Directives.64
The EU policy approach and objectives for achieving sustainable development
are set out in the EU Strategy for Sustainable Development and in several environmental action programmes that will run to 2020. Similarly, there is frequent
reference to sustainable development in a whole raft of IMP soft law publications
concerning the marine environment. Again, few of these attempt to define what
precisely this principle means in practice in relation to the conduct of maritime
activities.65 Take, for instance, the so-called Blue Book, which provides that the
IMP will provide a coherent policy framework that will allow for the optimal
development of all sea-related activities in a sustainable manner.66 Similarly,
maritime spatial planning is identified as a key planning tool for sustainable
decision-making.67 Indeed, the Blue Book goes as far as to say that the first objective of the IMP is to create optimal conditions for the sustainable use of the
oceans and seas with a view to facilitating growth in maritime sectors.68 How
this is to be achieved is not fleshed out in any great detail apart from the relatively solid commitment to manage fish stocks at maximum sustainable yield by
2015 in line with the World Summit on Sustainable Development (WSSD) targets.
On a similar note, marine scientific research is identified as being crucial for the
sustainable development of sea-based activities. As a follow-up, a range of solid
targets to harmonise European scientific endeavours were set down by the Commission in 2007 including the establishment of a European Marine Observation
and Data Network.69
62Article 51(2) of the Charter of Fundamental Rights, Article 6(1) of the TEU.
63The Charter does not however create new rights and this is specifically spelt-out in
Protocol 30 in relation to the United Kingdom, Poland, and the Czech Republic.
64For example, Secretary of State for the Environment, Transport and the Regions, ex parte
First Corporate Shipping [2001] ECR I-9235.
65Preamble and Article 3 of the TEU and Article 11 of the TFEU.
66COM(2007) 575 final, 4.
67Ibid., 5.
68Ibid., 7.
69See, Ronn Long, Regulating Marine Scientific Research in the European Union: It
Takes More Than Two Member States to Tango, in Myron Nordquist, J. Norton Moore,
Alfred Soons, and Hak-So Kim (eds.), The Law of the Sea Convention: U.S. Accession and
Globalisation (Leiden/Boston: Brill Academic Publishers, 2012).
principles and normative trends in eu ocean governance
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The thematic strategy for the protection of the marine environment under the
Sixth Environmental Action Programme 20022012 is couched in similar sustainable development language in so far as it aims to promote sustainable uses
of the seas and the conservation of marine ecosystems.70 Moreover, what constitutes sustainable development is not defined in any greater detail in secondary legislation such as the MSFD, which applies an ecosystem-based approach to
the management of human activities in the marine environment to ensure the
sustainable use of marine goods and services.71 Indeed, this Directive is partly
intended to give effect to the position taken by the EU regarding the conservation
and sustainable use of marine biodiversity under the Convention on Biological
Diversity and related international instruments.72
Gauging how well the EU and the Member States are implementing the principle of sustainable development in relation to maritime activities presents a major
challenge. Some guidance can be derived from the 2006 Council Declaration on
Sustainable Development which identified ten leading principles as well as seven
challenges in implementing the concept in practice.73 A progress report by Eurostat published in 2011 describes the results in achieving sustainable development
in the EU as mixed and concludes that the EU is not on a pathway to sustainable development.74 Somewhat ominously for the IMP, the over-exploitation of
fish stocks is singled out in the report as one of the contributor factors with nearly
a quarter of the total fish catches in 2009 outside safe biological limits. Moreover,
the report notes that the establishment by the EU of a network of marine protected areas has been tardy, with the number of sites designated under EU nature
conservation instruments accounting for approximately 6 per cent of species and
10 per cent of habitats to date.75 The EU therefore falls well short in contributing
to the WSSD call for the establishment of a comprehensive global network of
marine protected areas by 2012.76
In addition to these disappointing results, it should also be pointed out that
there are relatively few marine indicators in the list of 200 indicators that are
used by Eurostat in compiling their report. As a consequence, there appears to
70COM(2005)504.
71 Recital 8 of the MSFD.
72Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993,.1760 UNTS 79; 31 ILM 818, which was approved by Council Decision
93/626/EEC OJ L 309, 13.12.1993, 1.
73Renewed EU Sustainable Development Strategy as adopted by the European Council on
15/16 June 2006, http://register.consilium.europa.eu/pdf/en/06/st10/st10917.en06.pdf
74Eurostat Statistics in Focus 58/201, Is the EU on a Sustainable Development Path?
Highlights of the 2011 Monitoring Report of the EU Sustainable Development Strategy,
(November 2011).
75COM(2011) 531 final, Brussels, 31.8.2011, p. 5.
76Johannesburg Plan of Implementation, paragraph 32(d). Available at: www.un.org/esa/
sustdev/documents/ WSSD_POI_PD/English/WSSD_PlanImpl.pdf.
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be little empirical data available that allows us to draw firm conclusions regarding the sustainability of the various maritime activities, apart from fisheries, that
are addressed by the IMP. That said, on the broader landscape of EU policy, it
is generally acknowledged by both the EU institutions and the Member States,
that good governance mechanisms are crucial to the achievement of sustainable
development. In accordance with the EUs Strategy on Sustainable Development
these mechanisms include: the integration of the economic, social and environmental dimensions of policy-making in a coherent manner; enhancing the
participation of civil society in the decision-making process; and strengthening
the educational and informational initiatives for sustainable development at all
political levels. Somewhat disappointingly, the 2011 and 2013 Eurostat Reports
again describes progress towards the attainment of these objectives as mixed
and that the target of a higher share of environmental taxes in total tax revenues in the Member States remains unrealised.77 Furthermore, there are moderately unfavourable changes for the indicators on the sustainability of fish stocks.
This trend is now compounded by the ongoing fiscal crisis, which is clearly influencing the attainment of sustainable development in many economic sectors
including the maritime sector.
The Eurostat reports accords with the findings of several international organisations including the World Bank and the FAO, which have reported that marine
resources are not exploited sustainably both within and beyond the EU.78 Many
of these reports highlight that policies such as the CFP are not attaining specific
targets to ensure sustainability of fish stocks both nationally and internationally.
In the absence of improvements in fisheries management, it is therefore difficult
to see how the EU and the Member States can realise the broader objectives set
down by the WSSD in relation to protection and preservation of the marine environment. Moreover, the Court of Justice has yet to flesh out what the principle
of sustainability means for the practical aspects of fisheries management under
the CFP.
Importantly, good environmental status under the MSFD means the environmental status of marine waters where these provide ecologically diverse and
dynamic oceans and seas which are clean, healthy and productive within their
intrinsic conditions and the use of the marine environment is at a level that is
sustainable.79 The MSFD brings considerable precision to the question of sustainability by identifying eleven aspects of the marine environment that are to
be monitored and managed by Member States on a regional basis with a view
to achieving good environmental status by 2020. Instructively, these aspects are
77Eurostat Statistics in Focus 58/201, 13.
78See, for example, The Sunken Billions: The Economic Case for Fishery Reform (Washington and Rome: World Bank and FAO, 2009).
79Article 3 of the MSFD.
principles and normative trends in eu ocean governance
715
described in the Directive and the associated Commission Decision by reference
to a combination of ecological characteristics of the environment, and/or pressures and impacts associated with human activities on the marine environment.
Under the Directive, Member States are required to adopt marine strategies and
apply an ecosystems-based approach to the management of human activities to
ensure that the collective pressure of such activities is kept to sustainable levels.
How this scheme will work in practice will depend very much on what baseline is selected for ensuring the long-term sustainable use or indeed sustainable
development of offshore activities in the marine environment. The complexity
of this exercise can gauged from the ODEMM project, which by applying a pressure assessment approach in four European regional seas (the Atlantic, Baltic
Sea, Mediterranean Sea, and North Sea) was able to identify 106 activities from
19 sectors which contributed 25 specific pressures and threats to the sustainable functioning of marine ecosystems.80 As noted by the ODEMM project team,
pressures may be physical, chemical or biological and the same pressure may be
caused by several maritime activities.81 Significantly, the project identified threats
from four sectors, namely agriculture, coastal infrastructure, fishing and shipping,
as common to all the European regional seas.82 As pointed out previously, five
of the eleven descriptors set down by the MSFD for the attainment of good environmental status under the MSFD were classified by ODEMM as currently being
at high risk of failure in all regional seas.83 The project concluded ominously that
there was also a high likelihood of failure to reach favourable conservation status
in relation to habitats and species protected under the Habitats Directive in the
Baltic Sea, Mediterranean Sea and NE Atlantic. Furthermore, as pointed out by
one of the technical reports completed under the ODEMM project, the attainment of good environmental status under the MSFD differs considerably from the
achievement of favourable conservation status under the Habitats Directive since
the latter instrument aspires towards the establishment of pristine conditions
whereas the MSFD is aimed at achieving sustainable uses of the marine environment.84 The ODEMM project will identify the various legal and governance
factors that can help improve the implementation of the ecosystem approach in
order to achieve the desired environmental status in Europes regional seas
in line with both instruments.
In all likelihood, the findings of the ODEMM project is only a precursor to
the outcome of the more formal exercise that is currently being undertaken by
80See, Anthony Knights, et al., Sustainable use of European regional seas and the role of
the Marine Strategy Framework Directive, note 19 supra.
81 Ibid. p. XI.
82Ibid.
83Ibid.
84See, Patricia Breen et al., A review of operational objectives in European Regional Seas
(Liverpool, University of Liverpool, 2011), at 73.
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the Member States under the MSFD. Ultimately, the true normative effectiveness
of the principle of sustainable development will depend on how well the programme of measures adopted by the Member States and the European institutions
under the MSFD responds to the range of threats that impede the attainment of
prescribed environmental status under the Directive. In this context, it is important to keep in mind that the programmes and measures adopted by Member
States must take into account other European directives on urban waste-water
treatment,85 bathing water quality,86 river basin management including estuaries
and coastal management, and the many international and regional agreements
that are aimed at protecting and preserving the marine environment that have
been ratified by the Member States. Accordingly, it will be a considerable period
of time before the entire regulatory framework is given effect in practice. In the
interim, the true normative effectiveness of this principle for taking decisions concerning marine resources management both within and beyond the EU remains
uncertain as is evident from the debate at the United Nations Conference on
Sustainable Development (Rio+20) in 2012. That said, sustainable development
as both a concept and principle is likely to remain at the forefront of all EU policy
and legal initiatives to advance the IMP and to implement the MSFD.
The Legal Requirement to Integrate Environmental Considerations into the IMP
Without doubt, the most important normative principle in EU marine environmental law stems from the provision in the TFEU which states that environmental
considerations must be integrated into the definition and implementation of EU
policies and activities, in particular with a view to promoting sustainable development.87 The principle of environmental integration is an important mandatory requirement under the Treaty and ensures that individual policies that make
up the IMP can no longer be viewed in isolation as stand-alone policies but must
also reflect an environmental dimension. As a consequence, this principle forms
an important nexus between the concept of sustainable development discussed
above and environmental protection. The European Commission has published
a Communication on how environmental considerations are implemented under
the CFP and there has been considerable effort to implement the principle
under the various EU environmental action programmes and strategies.88 The
overall success of these initiatives is difficult to assess and for reasons of space
only a few rudimentary comments can be made here.
85OJ L 135, 30.5.1991
86OJ L 64, 4.03.2006.
87Article 11 of the TFEU.
88COM (2001)143final. See, Robin R. Churchill and Daniel Owen, The EU Common Fisheries Policy (Oxford: Oxford University Press, 2010), 258266.
principles and normative trends in eu ocean governance
717
At first sight, the laudable objective of integration is undermined by the
absence of specific guidance in the Treaties on what weight is to be given to
environmental considerations in the policy formulation and implementation
process. As a minimum, however, the requirement of integration in the context of the IMP would certainly appear to include the attainment of the broader
EU law environmental objectives mentioned elsewhere in the Treaties such as
prudent and rational utilisation of natural resources, and the implementation
of the precautionary principle, the principle that preventative action should be
taken, the rectification of environmental damage at source, and the polluter pays
principle.89
The adoption of concrete measures by the EU to give teeth to the principle
has a major bearing on its utility and effectiveness as a principle of EU marine
environmental law. The MSFD and the Habitats and Birds Directives are core
legal measures adopted by the EU that protect and preserve biodiversity and the
broader marine environment. Indeed, as seen previously, the ODEMM project
is focused on identifying the ecosystem-based management options to achieve
good environmental status of the European marine environment by 2020 in line
with the scheme set down by the MSFD. Similarly, the Habitats Directive and
Birds Directives aim to achieve favourable conservation status for an extensive
list of marine and terrestrial habitats and species through the establishment of a
network of protected areas. These instruments set down sophisticated schemes
for the assessment, monitoring and reporting of the status of the marine environment and therefore add legal substance to the principle of integration. In this
regard, the process of Regulatory Impact Assessment within the EU institutions
of draft legislation is an important procedural step in law-making that is aimed
at ensuring that the economic, social and environmental impact of proposed
measures are taken into consideration at an appropriate stage in the law-making
process.
The requirement of integration is reflected in many of the secondary legislative instruments that are applicable to the marine environment including the
MSFD.90 As a matter of practice, however, the precise level of integration is a
political question to be decided by the European Council and the European Parliament in the law-making process within the EU institutions. This often leads to
controversy regarding the adoption of specific measures in policies such as the
CFP.91 Thus, for example, one commentator has argued that the failure of the EU
to take into account the environmental impact of the activities of EU fishing vessels on the sensitive ecosystem around the Azores under Regulation 1954/2003
89Article 191(1) of the TFEU.
90See, Ronn Long, The EU Marine Strategy Framework Directive, 12.
91 For a comprehensive discussion of the law applicable to the CFP see, Churchill and
Owen, The EU Common Fisheries Policy.
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contravened the requirement of environmental integration under the Treaty
and should have lead to the annulment of that particular instrument.92
Overall, the principle that environmental considerations are reflected in EU
policies is taken seriously by the Court of Justice, which has been very proactive
and strengthened the environmental dimension of EU policies generally.93 The
rigorous approach of the Court can be seen in their case law on the use of criminal sanctions for the purpose of EU environmental law enforcement.94 Although
the type and level of sanctions is a matter for each Member State,95 the EU institutions have given considerable guidance on this matter by adopting a Directive
on the protection of the environment through the use of criminal law.96 Infringements of instruments that give effect to environmental dimension of the IMP
(such as the MSFD, the WFD and the Habitats and Birds Directives) come within
the scope of this Directive. Furthermore, the Court has held that national penalties or sanctions adopted by the Member States must be effective, proportionate
and dissuasive.97 This requirement also applies to sanctions that are aimed at
giving effect to regulatory measures that apply to maritime activities.
Another area where the Court of Justice has underlined the importance of the
environmental dimension of EU policies is in enforcement proceedings concerning the failure of Member States to uphold their obligations under the EU Treaties. The Court, for example, penalised France with a lump sum of 20 million
and 56 million for every six months it remained non-compliant with EU fisheries conservation measures under the CFP.98 This case arose out of a failure by
92See, inter alia, Kramer, EU Environmental Law, 22. This issue was raised in Case T-37/04,
Azores v Council [2008] ECR II-103. An application for such an annulment was deemed
inadmissible by the General Court on grounds that the contested measure was not
of individual concern which is a prerequisite for judicial review. See, Case C-444/08P
Azores v Council 26 November 2011.
93See, Rory Brady, The European Community and Environmental Protection in Myron
Nordquist, Ronan Long, Tomas Heidar and J. Norton Moore (eds.), Law, Science and
Ocean Management (Boston/Leiden: Martinus Nijhoff Publishers, 2007), 99129. Indeed
the Court of Justice has been active in a number of areas where there is no reference to
environmental protection such as the Treaty provisions on the free movement of goods
within the internal market. See Case 125/88 Criminal Proceedings against Nijman [1989]
ECR 3533 to ban the use of pesticides; Case C-473/98 Toolex Alpha [2000] ECR I-5681
to prohibit the use of trichloroethylene for industrial purposes; and in Case C-67/97
Danish Bees Case [1998] ECR I-8033 to protect brown bees on the Danish Island of
Laes.
94Case C-176/03 Commission v Council [2005] ECR I-7879.
95Case C-440/05 Commission v European Parliament and Council (ship source pollution)
[2007] ECR I-9097.
96Directive 2008/99 of the European Parliament and the Council of 19 November 2008
on the protection of the environment through criminal law L 328/28, 6.12.2000.
97Case 68/88 Commission v. Greece [1989] ECR 2965.
98Case C-121/07 Commission v France [2008] ECR I-9159.
principles and normative trends in eu ocean governance
719
France to comply with a previous judgement of the Court. In similar enforcement
proceedings, Spain was fined 625,000 per year for each percent of inland waters
that did not comply with the requirements of the EU Directives on bathing
water quality.99
If one examines the many regulatory measures that now apply to the marine
environment, it is clearly evident that the overall approach of the EU institutions
has been very proactive and focused on ensuring that the both the substantive
and procedural law of the EU reflect environmental considerations. Accordingly,
we can expect to see that the principle of integration will continue to shape the
European regulatory environment for many decades to come and will undoubtedly influence the shape of the management measures that are adopted by the
Member States and the European institutions in the programme of measures
to ensure that the standard of good environmental status of European marine
waters is achieved by 2020 under the MSFD.
The Precautionary Principle
The precautionary principle is well established in EU law and reflects the
normative necessity of taking appropriate and timely action in the face of scientific uncertainty.100 In some instances, it entails a reversal of the burden of
scientific proof so that the potential impacts of a particular course of action must
be taken into account at the planning stage and as a precursor to the implementation of a project or a particular activity that poses a risk to the protection and
preservation of the marine environment and the resources it supports.
The precautionary approach is codified in Principle 15 of the 1992 Rio Declaration on Environment and Development and there is extensive academic commentary about its precise normative status in international law.101 In the context
of seabed mining activities, its normative standing has been clarified to a degree
by the International Tribunal for the Law of the Sea in its Advisory Opinion with
respect to Activities in the Area, where it held that:
the precautionary approach is also an integral part of the general obligation of due
diligence of sponsoring States, which is applicable even outside the scope of the
Regulations. The due diligence obligation of the sponsoring States which requires
them to take all appropriate measures to prevent damage that might result from the
99Case C-278/01 Commission V Spain [2003] ECR I-14141.
100See, Sep. Op. of Judge Wolfrum in MOX Plant Case (Ireland v United Kingdom) (Provisional Measures, 3 December 2001 Sep ITLOS Reports 2001.
101For commentaries see, Simon Marr, The Precautionary Approach and Conservation
and Management of Fish Resources, European Journal of International Law, 11 (2000):
815; David Freestone and Ellen Hey (eds.), The Precautionary Principle and International Law: The Challenge of Implementation (The Hague: Kluwer Law International,
1996); Nicholas de Sadeleer, The Precautionary Principle in EC Health and Environmental Law, European Law Journal, 12)(2) (2006): 139172.
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activities of contractors that they sponsor. This obligation applies in situations where
scientific evidence concerning the scope and potential negative impact of the activity
in question is insufficient but where there are plausible indications of potential risks.
A sponsoring State would not meet its obligation of due diligence if it disregarded
those risks. Such disregard would amount to a failure to comply with the precautionary approach.102
The precautionary principle has figured on the landscape of European regional
law since the early 1980s and its importance was highlighted as far back as 1984
in the Ministerial Declaration of the International Conference on the Protection
of the North Sea.103 One of the most frequently cited definitions of the principle
is set down in the 1992 OSPAR Convention and this has since been replicated to a
greater or lesser degree in many other European regional agreements that apply
to the marine environment such as the 1992 Baltic Sea Convention.104 The former
provides that:
Contracting Parties shall apply the precautionary principle, by virtue of which preventive measures are to be taken when there are reasonable grounds for concern
that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living resources and marine
ecosystems, damage amenities or interfere with other legitimate uses of the sea, even
when there is no conclusive evidence of a causal relationship between the inputs
and the effects.105
Essentially, preventive measures include the use of best available techniques,
best environmental practice, and clean technology. At a pan-European level, the
OSPAR Commission work with several regional and international organisations
to achieve its mandate regarding the design and implementation of preventative
measures including ICES, the Regional Fisheries Management Organisations, the
regional seas commissions, the IMO and the European Commission. As will be
seen below, both the MSFD and the WFD provide a mechanism to implement the
precautionary principle through the medium of EU law in line with the obligations that arise under regional and multilateral agreements.
In relation to the European approach to ocean governance under the IMP, it
is important to keep in mind that the precautionary principle is an autonomous
102ITLOS Case No. 17, Advisory Opinion on Responsibility and Liability for International
Seabed Mining, paragraphs 125135.
103Recital VII, Ministerial Declaration Second International Conference on the Protection
of the North Sea, London, 2425 November 24 1987.
104Convention for the Protection of the Marine Environment of the North-East Atlantic,
opened for signature 22 September 1992, entered into force 25 March 1998, 32 (1993)
ILM 1069 (OSPAR Convention); Article 3(2) of the Convention on the Protection of the
Marine Environment of the Baltic Sea Area, opened for signature 9 April 1992, entered
into force 17 January 2000, BNA 35: 0401.
105Article 2(2)(a) of the OSPAR Convention.
principles and normative trends in eu ocean governance
721
legal principle in EU law and stemming from its solid legal basis in the TFEU.106
In addition, there has been considerable guidance from the European institutions
regarding the practical application of the principle in the energy, fisheries, and
many other maritime sectors. In 2000, the European Commission published a
Communication which provides that:
the precautionary principle may be invoked when the potentially dangerous effects
of a phenomenon or process have been identified by scientific and objective evaluation, and this evaluation does not allow the risk to be determined with sufficient
certainty.107
The Communication goes on to state that:
where action is deemed necessary, measures based on the precautionary principle
should be, inter alia: proportionate to the chosen level of protection; non-discriminatory in their application; consistent with similar measures already taken; based on an
examination of the potential benefits and costs of action or lack of action (including,
where appropriate and feasible, an economic cost/benefit analysis); subject to review
in the light of new scientific data; and capable of assigning responsibility for producing the scientific evidence necessary for a more comprehensive risk assessment.108
This interpretation of the precautionary principle is fully consistent with the
decisions of the Court of Justice, which has a substantial body of case-law concerning the application of precaution in the field of human health, consumer and
environment protection, as well as under the environmental integration clause
discussed above in the TFEU. The Court of First Instance has held that where
there is uncertainty as to the existence or extent of risks to human health, then
the European institutions may take protective measures without having to wait
until the reality and seriousness of those risks become fully apparent.109 Indeed,
under EU law, the precautionary principle applies where a risk exists even though
the precise level of risk cannot be demonstrated completely.110 Furthermore, the
principle requires,
106Article 191 (2) of the TFEU and Case T-13/99 Pfizer v European Commission [2002]
E.C.R. II-3305.
107COM(2000) 1, 02.02.2000.
108Ibid.
109Case C-157/96 The Queen v Ministry of Agriculture, Fisheries and Food, Commissioners of
Customs & Excise, Ex p. National Farmers Union, David Burnett and Sons Ltd, R. S. and
E. Wright Ltd, Anglo Beef Processors Ltd, United Kingdom Genetics, Wyjac Calves Ltd,
International Traders Ferry Ltd, MFP International Ltd, Interstate Truck Rental Ltd and
Vian Exports Ltd.[1998] E.C.R. I-02211; Case C-180/96 United Kingdom of Great Britain
and Northern Ireland v Commission of the European Communities [1998] E.C.R. I-0226.
110Case T-13/99 Pfizer v European Commission [2002] E.C.R. II-3305.
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the competent authorities to take appropriate measures to prevent specific risks to
public health, safety and the environment, by giving precedence to the protection of
those interests over economic interests.111
The importance of the latter requirement cannot be overstated and means that in
certain instances that the economic objectives of the IMP may well have to yield
to environmental considerations on the basis of precaution.
Accepting that the latter statement is true and in view of the preliminary findings of the ODEMM project which used a pressure assessment to evaluate various
human activities that have an effect on the marine ecosystem and subsequently
developed a risk assessment approach to determine the likelihood of failure to
achieve good environmental status under the MSFD, it may be appropriate to ask
what evidence is required to trigger the application of the precautionary principle in relation to regulatory measures that advance IMP ocean governance policy
objectives.112 In recent decisions, the Court of Justice has shed some light on the
issue of risk assessment in so far as the Court has held that risk assessment must
not be based on purely hypothetical considerations but on the most reliable scientific data and most recent results of international research.113 Further clarity
was added subsequently when the Court set down a two-step process for risk
assessment. The first step being that the obligation placed on Member States to
identify all the negative effects of a phenomenon, product or process and then
make a comprehensive assessment of the risk they represent based on the most
reliable scientific data available and the most recent results of international
research.114 Following on from this and where it proves,
impossible to determine with certainty the existence or extent of the alleged risk
because of the insufficiency, inconclusiveness or imprecision of the results of studies
conducted, but the likelihood of real harm to public health persists should the risk
materialise, the precautionary principle justifies the adoption of restrictive measures,
provided that they are non-discriminatory and objective.115
Despite the general thrust of these decisions, it needs to be emphasised that neither the Court nor the Commission consider it necessary for a risk assessment
to be undertaken in all cases where there is a potential risk to human health,116
and thereby by implication where there is a potential risk to the protection of
the environment. Accordingly, undertaking risk assessment is not a prerequisite
for the adoption of regulatory measures under the IMP. In fact, as Kramer points
111Joined Cases T-74/00 and T-76/00 Artegodan a.o v Commission [2002] ECR II-4945.
112See Stuart Bell, Donald McGillvray and Ole W. Pedersen, Environmental Law, 8th edition (Oxford: OUP, 2013), 6876.
113Case C-236/01 Monsanto Agricoltura Italia [2003] ECR I-8105.
114Case C-333/08 Commission v France 28.1.2010.
115Ibid.
116Case C-343/09 Afton Chemical, 8.07.2010.
principles and normative trends in eu ocean governance
723
out, the Treaties make no reference to such a requirement.117 This is an important consideration as risk assessment in relation to a proposed development that
impinges upon the quality of the marine environment may entail several years of
expensive scientific work, which ultimately produces inconclusive results.
Several substantive secondary legal instruments that apply to the marine
environment and are central to the implementation of the IMP make reference
to the precautionary principle including the WFD, the Environmental Impact
Directive, and the Strategic Environmental Impact Directive. Similarly, the basic
fishery management regulation governing the CFP requires the EU to apply the
precautionary approach in taking measures designed to protect and conserve living aquatic resources, to provide for their sustainable exploitation and to minimise the impact of fishing activities on marine eco-systems.118 In this context, the
precautionary approach to fisheries management means:
that the absence of adequate scientific information should not be used as a reason
for postponing or failing to take management measures to conserve target species,
associated or dependent species and non-target species and their environment.119
For inexplicable reasons, the precautionary principle is only mentioned in the
Preamble of the MSFD and not in its substantive provisions.120 Although this
instrument is silent on what specific management measures ought to be introduced to attain the requisite environmental quality standard in the European
marine environment, the Preamble nonetheless provides that those,
measures should be devised on the basis of the precautionary principle and the principles that preventive action should be taken, that environmental damage should, as
a priority, be rectified at source and that the polluter should pay.
Significantly, the focus in this important Directive and many of its substantive
provisions is on the practical application of the principle and not on its abstract
nature as a legal concept.121 Similarly, we can see the precautionary approach in
operation under the procedures that apply under the Habitats Directive which
protect marine habitats and species once these have been designated by Member
Sates and placed on the draft list of sites.
117Professor Kramer has suggested that such a requirement could only arise under secondary legislation, see. Kramer, EU Environmental Law, 23.
118Article 2 of Council Regulation (EC) No. 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries
Policy, OJ L 358, 31.12.2002, p. 59.
119Article 3(i) of Council Regulation 2371/2002.
120Recital 44 of Directive 2008/56/EC.
121 Recital 27 of the Preamble, MSFD.
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The Ecosystem Approach
As noted above, ecosystem-based management of the marine environment is
the subject of a number of separate publications and is sufficient to note in this
chapter that it is one of the most pragmatic developments in EU marine environmental law since the establishment of the IMP.122 This is particularly important as the ecosystem approach is not specifically mentioned in the EU Treaties.
Accordingly, much of the impetus for its implementation is derived by means of
secondary legislation including the WFD, the Habitats and Birds Directives, the
Environmental Impact Assessment and Sustainability Impact Assessment Directives. In this context, the MSFD is the principal legal instrument and this requires
all Member States to achieve good environmental status (GES) of marine waters
by 2020. The methodology and criteria on how this is to be achieved is further fleshed out in a Commission Decision.123 As noted in the Preamble of the Directive,
applying an ecosystem-based approach to the management of human activities
entails giving priority to achieving or maintaining GES in the European marine
environment.124 The substantive parts of the Directive set down a sophisticated
scheme of procedural and administrative steps for achieving GES and this entails
utilising the various mechanisms for the adoption of management measures
under the regional seas agreements that apply to the Atlantic, Baltic, Mediterranean and Black Sea. Measures to protect the environment and biodiversity will
thus apply across the various jurisdictional zones established by the Member
States. Ecosystem-based management under the MSFD is clearly predicated on a
view that marine environmental protection is a pre-requisite for the EU to realise
the full economic potential of maritime resources and offshore activities.125
What are the Normative Trends in EU Ocean Governance?
The IMP is a blueprint for responsible ocean governance by the EU. The absence
of a specific legal basis in the EU Treaties means that the policy is characterised
by numerous and sometimes conflicting objectives. At the time of writing, these
objectives must be viewed through the prism of the fiscal austerity programmes
that are being implemented in several Member States with significant maritime
sectors (most notably by Spain, Portugal, Italy, Greece and Ireland), as well as
the spectre of economic recession and the threats to global prosperity. Similar
to all EU sector policies, the IMP is supplemented recently by five ambitious EU
122See notes 3 and 7 above.
123Commission Decision of 1 September 2010 on criteria and methodological standards
on GES of marine waters, OJ L 232/14, 2.09.2010.
124Recital 8 of the MSFD.
125See, Note from the European Council, Brussels, 4 June 2010, http://register.consilium
.europa.eu/pdf/en/10/ st10/st10545.en10.pdf.
principles and normative trends in eu ocean governance
725
economic targets to be achieved by 2020 in the areas of employment, innovation,
education, social inclusion, energy and climate change.126 These targets suggest
that the regulatory and policy actions of the EU and the Member States over
the coming decade will remain firmly focused on economic development and on
improving competiveness in the various maritime sector policies that make-up
the IMP.
Following on from this, one could argue that economic considerations ought
to shape the scope and substance of all future EU regulatory measures that are
applicable to offshore activities. In this context, considerable care should be taken
with the contextual and ephemeral nature of the EUs economic objectives when
discussing the IMP, as these will ultimately have be reconciled the normative
principles and approaches set down in European Treaties and secondary legislation, in particular the principle of sustainable development, the principle of integration, the precautionary principle, and ecosystem-based marine management.
Forecasting the future orientation of EU law and policy governing maritime
activities is a risky business. In the immediate future, nonetheless, we can expect
to see that the focus of the IMP will continue to evolve along an axis of soft-law
instruments such as the various regional seas strategies. Moreover, it is highly
unlikely that the European institutions will seek to adopt a framework Directive
in the area of ocean governance.127 In March 2013, there was a major legislative initiative, however, when the European Commission tabled a draft directive
to create a common framework for maritime spatial planning and integrated
coastal management.128 This instrument if adopted by the Council and Parliament has the potential to be a game-changer and to have a profound impact on
the practical aspects of coastal and marine management with a view to achieving economic, environmental and social objectives of the IMP. Aside from this
initiative, the legal framework for the IMP remains somewhat fragmented and
directed at establishing practical programmes aimed at facilitating matters such
as: the establishment of integrated decision-making structures and procedures
in the Member States for maritime policy formulation and implementation; the
promotion of a cross-sectoral approach to maritime governance, and; the fostering of synergies between the various policies which impinge upon the maritime
environment such as the energy, transport, fisheries and regional policies.129 The
majority of these initiatives will continue to be informed to a greater or lesser
degree by the various marine environmental law principles that are highlighted
in this chapter. The scope for applying these principles will increase as soon
as the results of EU framework projects such as the ODEMM project become
126See: http://ec.europa.eu/europe2020/index_en.htm.
127See footnote 1.
128COM(2013) 133 final, Brussels, 12.03.2013.
129COM(2007) 575 final, Brussels, 10.10.2007, 2.
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more widely available. In particular, the establishment of comprehensive scientific monitoring programmes, as well as the development of a sophisticated risk
assessment framework and predicative management tools, will help close the
current knowledge deficit concerning how best to respond to the anthropogenic
factors that are influencing the status of the marine environment in general and
the on-going loss of biodiversity in particular. Research results will also help the
EU balance the short-term economic objectives with long-term ecosystem sustainability objectives set down by a broad range of hard and soft law instruments
that govern maritime activities.
With the benefit of hindsight, this allows us to conclude that after an initial surge in EU policy formulation, the IMP now appears to be moving steadily towards the application of new normative approaches to ocean governance
where shared responsibility for the management of maritime space and ocean
resources is the preferred paradigm in the EU. This is particularly evident when
one examines the substantive detail of instruments such as the MSFD, which
provide a legal basis for the establishment of marine regions/sub-regions on the
basis of geographical and environmental criteria and not necessarily on the basis
of the political boundaries established by Member States in accordance with general international rules on maritime delineation and delimitation.130 The need
to implement the various principles highlighted in this paper at a regional seas
level is all the more pressing in light of the findings of the EU framework research
such as the ODEMM project. Implementation and a principle led approach is of
course fully in line with a central strand running through the LOSC, which is that
the problems associated with the use of ocean space are closely interrelated and
therefore need to be considered as a whole.131 Accordingly, it is easy to conclude
that EU approach to ocean governance under the IMP will continue to evolve
in manner that is fully consistent with the objectives and principles set down in
the LOSC.
130Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008
establishing a framework for community action in the field of marine environmental
policy (Marine Strategy Framework Directive) OJ L 164/19, 25 June 2008. See Ronan
Long, The EU Marine Strategy Framework Directive; Arie Trouwborst, Harm M. Dotinga, Comparing European Instruments for Marine Nature Conservation: The OSPAR
Convention, the Bern Convention, the Birds and Habitats Directives, and the Added
Value of the Marine Strategy Framework Directive, European Energy and Environmental Law Review, 20(4) (2011): 129149.
131 Paraphrased from Recital 3, Preamble of the LOSC. As an aside it should also be noted
that this also accords with Philip Allots propitious prediction that this would become
the rule rather than the exception in the progressive development of the international law of the sea. See Philip Allott Mare Nostrum: A New International Law of the
Sea, in Jon M. Van Dyke, Durwood Zaelke and Grant Hewison (eds.), Freedom For
The Seas in the 21st Century: Ocean Governance And Environmental Harmony (Washington DC: Island Press, 1993), 52.
PART Eight
BEYOND THE LIMITSEXPLORING AND MANAGING NEW FRONTIERS
chapter Thirty-Two
Governing the Blue: Governance of Areas beyond National
Jurisdiction in the Twenty-First Century
David Freestone*
Introduction
December 2012 marked the thirtieth anniversary of the conclusion of the historic
United Nations Convention on the Law of the Sea (LOSC).1 The nine years of discussions required to conclude the text was the longest negotiation in the history
of the United Nations and the important compromises and trades-off that were
made by all sides in that negotiation in order to achieve consensus over the package deal are with us still, in the text of the Convention. Despite the importance
we now ascribe to the text, this enormous Convention with its 320 articles and 9
annexes did not enter into force immediately. Because of issues with the seabed
mining provisions of Part XI it stalled for 12 years before the further negotiation of
a truly innovative agreementthe 1994 Agreement relating to the Implementation
of Part XI of the United Nations Convention on the Law of the Sea of December 10,
1982allowed it to reach the 60 parties that Article 308 required to bring it into
force.2 The following yearas a result of a decision taken in Rio de Janeiro at the
*Executive Director of the Sargasso Sea Alliance; Professor and Visiting Fellow, George
Washington University Law School, USA; Editor in Chief, International Journal of Marine
and Coastal Law. This paper draws heavily on a paper previously published as Problems
of High Seas Governance in Davor Vidas and Peter Johan Schei (eds.), The World Ocean
in Globalisation: Challenges and Responses, (Leiden: Martinus Nijhoff, 2011), 99130. The
author is most grateful to the editors and the publisher for permission to use and update
some of that text.
1United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC). See also David Freestone
(ed.) The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas,
(Leiden Martinus Nijhoff, 2013).
2Adopted on July 28, 1994. (1994) 33 International Legal Materials 1309. See the famous
statement by HE Satya Nandan in introducing the Agreement to the UN General
Assembly on 27 July 1994, Official Records of the General Assembly, Forty-eighth session,
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david freestone
1992 UN Conference on Environment and Development, a further implementing
agreement was concluded after five negotiating sessions.3
The UN Fish Stocks Agreement represented a major effort to address one of the
unfinished agendas of the 1982 textthe regime of straddling and highly migratory fish stocks.4 The UN Fish Stocks Agreement not only sought to introduce new
governance requirements for the conservation and management of these stocks,
but it also introduced new concepts that had been introduced into fisheries management since the LOSC was negotiated at the Third United Nations Conference
on the Law of the Sea (UNCLOS III)notably the precautionary approach in
Article 6 and the ecosystem approach in Article 5. This was followed by the finalisation of the FAO Code of Conduct for Responsible Fisheries. Alan Boyle and the
present author have elsewhere characterised this as a revolution in international
fisheries law.5
We are at such a turning point again. In the 30 years since the finalisation
of the Convention our understanding of the significance and importance of
areas beyond national jurisdiction has increased vastly, but so too have our own
human impacts on it, which are reviewed below. It has also become clear that, in
the light of some of these major and largely unforeseen developments, the LOSC
regime has not lived up to expectations in terms of delivering the instruments of
international cooperation and governance that the UNCLOS III drafters may have
intended. In that sense governance of the high seas, does now represent another
unfinished agenda.6
agenda item 36 Doc A/48/PV.99 (reproduced in The Law of the Sea: Compendium of
Basic Documents, ISA, Jamaica, 2001, lxxiilxxix). On the issue of implementation and/
or modification of the Convention see David Freestone and Alex. G. Oude Elferink,
Flexibility and Innovation in the Law of the Sea: Will the LOS Convention Amendment
Procedures Ever be Used? in Alex G. Oude Elferink (ed.), Stability and Change in the Law
of the Sea: The Role of the LOS Convention (Leiden: Martinus Nijhoff Publishers, 2005),
169221, 18490.
3The first session was in New York in July 1993. Sessions followed in March 1994, August
1994, MarchApril 1995 and a final session in 24 July4 August 1995. See further David
Freestone and Zen Makuch, The New International Environmental Law of Fisheries:
The 1995 Straddling Stocks Agreement, Yearbook of International Environmental Law,
7 (1997): 349.
4Agreement for the Implementation of the Provisions of the United Nations Conventions on
the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 December,
1995, entered into force 11 December, 2001, 2167 UNTS 88 (UN Fish Stocks Agreement)
(adopted by the negotiating parties without a vote on August 4, 1995). See further,
Freestone and Makuch, The New International Environmental Law of Fisheries.
5Alan Boyle and David Freestone, Introduction in Alan Boyle and David Freestone
(eds.), International Law and Sustainable Development (Oxford: Oxford University Press,
1999), 121, 8.
6As discussed below the governance of the seabed beyond national jurisdictiontermed
the Area by the LOSC Article 1(1) is regulated by the LOSC through the International
Seabed Authority, see LOSC Part XI.
governing the blue
731
New and Emerging Threats to Areas beyond National Jurisdiction
The high seas cover nearly 50 per cent of the planets surface.7 The past thirty years
have seen unparalleled expansion of human activities and impacts on the oceans,
on the high seas in particular. Scientists have discovered valuable new resources
in high-seas areas: ocean hydrothermal vents with temperatures of 300 to 600C
containing gold and other valuable minerals, with accompanying hyperthermophile and extremophile life-formscrabs, bivalves, tube worms and shrimp-like
creatures as well as microbesthat process hydrogen sulphide instead of light
and that function in very deep ecosystems where the ambient water temperature
is over 100C. These are already proving to have important bio-technology and
pharmaceutical value. Deep cold-water coralsmuch slower-growing than their
shallow tropical water counterparts but equally colourful and very diverseare
proving far more common than initially thought, and are highly vulnerable to
ocean-floor fishing equipment. Also, cold seeps and huge frozen methane deposits have been discovered, with potential for exploitation, albeit with risks of major
damage to the global atmosphere.
Sustained demand for fish has accelerated fishing pressures and pushed fishing
efforts into more extreme environments, such as the Southern Ocean, as well as
into deeper waters. Heavy exploitation of valuable deep-sea species such as orange
roughy and Patagonian toothfish (often sold as Chilean sea-bass) has meant
that some stocks are on the verge of extinction before scientists have discovered
much about them. Slow-growing orange roughy, for example, are thought to live
to over 150 years and not reach sexual maturity until their thirtiesspawning
infrequently. Bottom-trawling for stocks that spawn on seamount ecosystems can
eliminate whole year groups as well as destroy the very sea-bed ecosystems that
attract them.
At the same time there is evidence of the impacts of the rising intensity of
existing human activities; marine pollution due to increases in maritime transportation, particularly from land-based sources. High-seas fish stocks are a valuable source of protein for human consumptionbut there is evidence of serious
depletion in the larger pelagic species, such as tunas and billfishes, resulting in
fishing for smaller species, lower down the trophic levels.8 This gives rise to serious questions about the impact of such fishing on the whole marine ecosystem
and its long-term sustainability. Economists, as well as biologists, have begun to
7C. Corrigan and F. Kershaw, Working Toward High Seas Marine Protected Areas: An
Assessment of Progress Made and Recommendations for Collaboration. 2008, UNEPWCMC, Cambridge, UK, p. 4.
8Daniel Pauly, Villy Christensen, Johanne Dalsgaard, Rainer Froese and Francisco Torres
Jr., Fishing Down Marine Food Webs, Science, 279, (1998): 86063, 86263.
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david freestone
voice concerns for sustainability, in light of the huge amounts of money spent
each year to support fisheries.9
The international science community has also, albeit somewhat late in the day,
become more vocal about the role of the oceans in relation to climate change.
While it is well known that the oceans are the most important global sink for
CO2, recent research from inter alia the Census of Marine Life indicates that the
processes that absorb carbon depend heavily on ocean speciesincluding
the tiniest life-forms. Before we have even discovered the existence of many
of these microorganisms, human activities, and particularly the resultant pollution, may have reduced their biomass by perhaps up to 30 per cent.10
Warming of the oceans and rises in sea level prompted by the resulting increases
in volume and fed by melting glaciers and ice-caps have already attracted public
attention. In addition, the increased atmospheric carbon loadnow estimated at
about 380 parts per million (ppm) in the atmosphereis already beginning to
affect ocean acidity levels. Recent research suggests that, at 450 ppm, corals and
shellfish, and perhaps even plankton, may have problems in creating and maintaining their carbonate structures.11 These issues, which affect waters both inside
and outside national jurisdiction, pose governance issues far beyond the remit of
the LOSC. The relevant international framework provided by the UN Framework
Convention on Climate Change (UNFCCC)12 and its science advisory bodythe
Intergovernmental Panel on Climate Changehave barely started to focus on
these issues, even though some entrepreneurs have already seen opportunities
for generating lucrative carbon offsets by using as yet unproven ocean fertilisation techniques in an attempt to generate algal blooms that might fix more
carbon in the ocean.13
9See, study by the World Bank and FAO, The Sunken Billions: The Economic Justification
for Fisheries Reform (Washington, DC: The World Bank, 2009), that estimates that USD
1.05 is spent for every US$1 of fish produced.
10R. Danovaro, C. Gambi, A. DellAnno, C. Corinaldesi, S. Fraschetti, A. Vanreusel,
M. Vincx, A. J. Gooday, Exponential Decline of Deep-Sea Ecosystem Functioning
Linked to Benthic Biodiversity Loss, Current Biology, 18(1) (2008): 18.
11O. Hoegh-Guldberg, P. J. Mumby, A. J. Hooten, R. S. Steneck, P. Greenfield, E. Gomez,
C. D. Harvell, P. F. Sale, A. J. Edwards, K. Caldeira, N. Knowlton, C. M. Eakin, R. IglesiasPrieto, N. Muthiga, R. H. Bradbury, A. Dubi1, M. E. Hatziolos, Coral Reefs under Rapid
Climate Change and Ocean Acidification, Science, 318 (2007): 17371742.
12United Nations Framework Convention on Climate Change, opened for signature 9 May,
1992, entered into force 21 March, 1994, 1771 UNTS 107 (UNFCCC).
13See, David Freestone and Rosemary Rayfuse, Ocean Iron Fertilization and International
Law, Marine Ecology Progress Series, 364(2008): 227233 (in Theme section:
Implications of Large-scale Iron Fertilization of the Oceans, www.int-res.com/articles/
theme/m364ThemeSection.pdf); Rosemary Rayfuse, Mark Lawrence and Kristina
Gjerde, Ocean Fertilisation and Climate Change: the Need to Regulate Emerging High
Seas Uses, International Journal of Marine and Coastal Law, 23 (2008): 297326.
governing the blue
733
The 1982 Law of the Sea Convention Regime
The basic principles that are in place in the LOSC regime are sound. The LOSC
provides for prior impact assessment of activities that might cause substantial
pollution of or significant and harmful changes to the marine environment.14 It
also prescribes monitoring of the risks or effects of pollution, including what
could be taken to be a precautionary provision that:
[I]n particular, States shall keep under surveillance the effects of any activities which
they permit or in which they are engaged in order to determine whether these activities are likely to pollute the marine environment.15
States must also publish reports of this monitoring and make them available to
the relevant international organizations which should then make them available to all States.16 These are unequivocal and important obligations but it is
also clear that they do still require a great deal of fleshing out. They require coordination and much more systematic and rigorous implementation. There is no
one institution charged with receiving such reports, assessing their quality, or of
monitoring whether these obligations are even complied with. Just as the effectiveness of flag State jurisdiction over other activitiessuch as fishing activities
on the high seashas a mixed record; the same is true of flag State supervision
of other less common activities.
In relation to cooperation in relation to protection of the marine environment,
Article 197 provides that:
States shall co-operate on a global basis, and as appropriate, on a regional basis,
directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures
consistent with this Convention, for the protection and preservation of the marine
environment, taking into account characteristic regional features.
It is impossible therefore to argue that the LOSC does not provide for international and regional cooperation between States in relation to the marine environment. However as a more holistic view of the problems of marine environmental
protection, particularly protection of marine biodiversity, emerges there are very
obvious divergences in the approaches of international organisations to what
should be regarded as similar issues. International organisations are the creatures
of States, so the obligations of Article 197 are obviously transferred to include
cooperation between international organisations and between sectoral organisations that operate globally or regionally. This is where there has been particularly
poor implementation of this vision.
14LOSC, Article 206.
15Ibid., Article 204(2).
16Ibid., Article 205.
734
david freestone
As the case study of the Sargasso Sea below will show, international organisations with responsibility for sectoral activities in the same physical areas do not
have established mechanisms for cooperation or even for regular consultation
on issues which should be of mutual concern or interest. They have different
national constituents,17 different epistemic communities and the criteria that
they use for assessing the value of, or risks to, the marine environment are different, often widely so.
These issues have been reviewed in some detail since 2006 in the discussions
of the Working Group established by the UN General Assembly; the Ad-Hoc
Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national
jurisdiction (BBNJ). Although its mandate is to study biodiversity issues in ABNJ,
the whole question of the extent to which the international community has sufficient legal powers to exercise proper governance of activities in ABNJ has been
widely discussed.
A review of existing organisations with jurisdiction over activities in ABNJ
shows that there are serious gaps in coverage.18 In relation to sectoral activities
there are both functional and geographic gaps. This is not necessarily a defect in
the LOSC itselfit is a defect in implementation.
The other issues that have been highlighted in the discussions have included
the absence of a global instrument regulating the establishment and monitoring
of Marine Protected Areas (MPAs) on the High Seas even though MPAs have
proven to be extremely effective in maintaining biodiversity in coastal contexts,
the absence of comprehensive EIA for new activities in ABNJ, as well as the lack
of coordination between those international organisations that are charged with
regulating specific sectoral activities. As discussed further below it has also been
suggested that the international community should reaffirm some of the basic
principles that have been agreed in a wide range of existing instruments, including the 1982 Convention, in relation to national activities in ABNJ.19
17For example, representative at an IMO meeting will usually be from a different National
Ministry than representatives from the same country at a fisheries organisation or the
International Seabed Authority.
18Kristina Gjerde, Harm Dotinga, Sharelle Hart, Eric J. Molenaar, Rosemary Rayfuse, Robin
Warner, Regulatory and Governance Gaps in the International Regime for the Conservation
and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (Gland:
IUCN, (2008), http://cmsdata.iucn.org/ downloads/ iucn_marine_paper_1_2.pdf). See
also, Kristina Gjerde, High Seas Fisheries Governance: Prospects and Challenges in the
21st Century, in Vidas and Schei (eds.) The World Ocean in Globalisation, 221232. For
an excellent discussion of the legal regime see Robin Warner, Protecting the Oceans
beyond National Jurisdiction: Strengthening the International Law Framework (Leiden:
Martinus Nijhoff Publishers, 2009).
19See, p. 745 below.
governing the blue
735
The Wider Regulatory Environment in ABNJ
Under the LOSC, coastal States have jurisdiction over living and non-living
resources in their exclusive economic zones (EEZs) out to 200 nautical miles
from their baselines and over continental shelf resources out to the legal limit of
their continental shelf.20 Beyond that point, the LOSC envisages the International
Seabed Authority having jurisdiction, but only over the non-living resources of
the seabedwhat it terms solid, liquid or gaseous mineral resources.21 Hence,
there is a lacuna in the LOSC regime relating to management and conservation of
deep-sea or seabed living resources and for exploration and exploitation activities
unrelated to seabed mining.22
Various sectoral activities in the high seas are governed by a wide number
of existing treaty regimes. The International Maritime Organisation (IMO), for
example, regulates global maritime transport activities and there is also a network (albeit by no means a comprehensive network) of species-related and
regional fisheries treaties and arrangements.23 There are also thirteen Regional
Seas programmes established under the auspices of UNEP regional seas programme, involving some 140 countries,24 as well as a number of other similar
conventions outside the UNEP auspices. Despite this plethora of international
bodies, however, coverage is by no means universal. As indicated above, scholars
have worked systematically through the various regional and sectoral regimes to
highlight regulatory and governance gaps.25
Space precludes a comprehensive assessment of all these treaty regimes,26
but is worth highlighting a few governance issues. The International Maritime
Organisation has sponsored a wide range of treaties on shipping safety, security
and pollution. It also hosts the 1972 London Convention and its 1996 Protocol on
ocean dumping. The IMO Conventions which regulate construction, safety and
20On the outer limit of the continental shelf, see Part V, Continental Shelf beyond
200 Nautical Miles, in Davor Vidas (ed.), Law, Technology and Science for Oceans in
Globalisation (Leiden: Martinus Nijhoff, 2010), 423589.
21 LOSC, Article 133(a).
22Although the LOSC does impose unequivocal obligations to protect and preserve the
marine environment and to protect and preserve rare or fragile species and ecosystems
in all parts of the marine environment, as well as the habitat of depleted, threatened or
endangered species and other forms of marine life. See LOSC Articles 192 and 194(5).
23See generally, David Freestone, International Fisheries Commissions and Organizations,
in Rdiger Wolfrum (ed.), Max Planck Encyclopaedia of Public International Law (Oxford:
Oxford University Press, 2010).
24See, http://www.unep.org/regionalseas/about/default.asp.
25See, sources identified at footnote 15.
26For a more comprehensive but by no means definitive treatment see David Freestone
Problems of High Seas Governance, in Vidas and Schei (eds.), The World Ocean in
Globalisation: Challenges and Responses, 99130.
736
david freestone
operation of vessels as well as various forms of marine environment pollution
through the 1973/78 MARPOL Convention with its six Annexes is supported by a
complex system of regional MOUs on port State control, under which port States
agree to regular inspections of vessels entering their ports. Not all maritime
States however are parties to all the conventions.
The same is true of the Fisheries Commissions which have always had problems with fishing vessels from States which are non-parties (often termed free
riders). There are ten regional fisheries management organisations (RFMOs), five
primarily responsible for the conservation and management of high-seas straddling stocks27 and five responsible for tuna species.28 However, these organisations do not provide comprehensive coverage of all exploitable high-seas fish
stocks, exposing those stocks not so regulated to an even greater risk of what the
international community now calls IUU fishing activities (illegal, unreported and
unregulated fishing).
For example, in November 2009, after lengthy negotiations, the treaty establishing the South Pacific Regional Fisheries Management Organisation (SPRFMO)
was concluded; it entered into force on 24 August 2012.29 The provisions for it to
enter into force are complex:
Article 38(1) provides that the Convention shall enter into force 30 days after the date
of the receipt by the Depositary of the eighth instrument of ratification, accession,
acceptance or approval...by:
(a)At least three coastal States adjacent to the Convention Area, which must
include representation from both the sides of the Convention Area that is
27The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR),
General Fisheries Commission for the Mediterranean (GFCM); North Atlantic Fisheries
Organisation (NAFO); North-East Atlantic Fisheries Commission (NEAFC); the SouthEast Atlantic Fisheries Organisation (SEAFO). Not yet in force is the 2009 Convention
establishing the South Pacific Regional Fisheries Management Organisation (SPRFMO);
see further footnote 16 and the accompanying text. Also relevant are the Central Bering
Sea Fisheries Commission, the North Pacific Anadromous Fisheries Commission
(NPAFC), and the North Atlantic Salmon Conservation Organisation (NASCO),
although salmon is an anadromous species, migrating from salt water to spawn in fresh
water. See David Freestone, Fisheries Commissions and Organisations, Max Planck
Encyclopaedia of Public International Law (Oxford: Oxford University Press, 2011);
also Michael W. Lodge, Developing a Model for Improved Governance by Regional
Fisheries Management Organisations, in Vidas (ed.), Law, Technology and Science for
Oceans in Globalisation, 157174.
28Inter-American Tropical Tuna Commission (IATTC), International Commission for
the Conservation of Atlantic Tunas (ICCAT), Indian Ocean Tuna Commission
(IOTC), Commission for the Conservation of Southern Bluefin Tuna (CCSBT) and the
Commission for the Conservation and Management of Highly Migratory Fish Stocks in
the Western and Central Pacific Ocean (WCPFC).
29For text see www.southpacificrfmo.org/ and Final Act at www.southpacificrfmo.org/
assets/Convention-and-Final-Act/2272942v1SPRFMOSignedFinalAct.pdf.
governing the blue
737
east of Meridian 120 West and the side of the Convention Area that is west
of Meridian 120 West; and
(b)At least three States that are not coastal States adjacent to the Convention
Area and whose fishing vessels are fishing in the Convention Area or have
fished in the Convention Area.30
At time of writing, there are ten parties: Australia, Belize, Republic of Chile, Cook
Islands, Republic of Cuba, European Union, Kingdom of Denmark in respect of
the Faroe Islands, Republic of Korea, New Zealand, and the Russian Federation.
Chinese Taipei has deposited an Instrument of Participation as a fishing entity.31
Negotiations are also ongoing for a North Pacific RFMO, leaving fishing in this
huge area still unregulated. The agreement on deep sea fisheries in the Southern
Indian Ocean (SIOFA), negotiated in 2006, is another example.32 It seems that
there are as yet no plans for a South Atlantic Commission covering those areas
not within the remit of the Convention for the Conservation of Antarctic Marine
Living Resources (CAMLR Convention),33 nor are there likely to be any in the near
future unless the political disputes between the UK and Argentina regarding the
status of the Falklands/Malvinas are resolved.
The most recently established of these RFMOsnotably the Commissions
set up by the 2000 Convention for the Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC),34 the
30Article 38(2) also provides that if within three years of its adoption, this Convention
has not entered into force in accordance with paragraph 1, it shall enter into force six
months after the deposit of the tenth instrument of ratification, accession, acceptance
or approval, or in accordance with paragraph 1, whichever is the earlier.
Article 38 paragraph 5 provides that for the purposes of this article, fishing includes
only the activities described in Article 1 paragraph 1 (g) (i) and (ii).
31 See, http://www.southpacificrfmo.org/status-of-the-convention/.
32The Agreement provides that it will come into force on receipt by the Depositary of
the fourth instrument of ratification, acceptance or approval, at least two of which have
been deposited by coastal States bordering the Area. It has recently been ratified by
two such coastal States.
33Convention on the Conservation of Antarctic Marine Living Resources, opened for signature,
20 May 1980, entered into force 7 April 1982, 1329 UNTS 48 (CAMLR Convention). As
to the CCAMLR and IUU fishing, see Denzil G.M. Miller, Natasha Slicer and Eugene N.
Sabourenkov, IUU Fishing in Antarctic Waters: CCAMLR Actions and Regulations, in
Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, 175196.
34Convention on the Conservation and Management of the Highly Migratory Fish Stocks of
the Western and Central Pacific Ocean, opened for signature, 5 September 2000, entered
into force 19 June 2004, text reprinted in ILM 40 (2001): 277ff. See also Transform
Aqorau, Tuna Fisheries Management in the Western and Central Pacific Ocean:
A Critical Analysis of the Convention for the Conservation and Management of the
Highly Migratory Fish Stocks of the Western and Central Pacific Ocean, International
Journal of Marine and Coastal Law, 16 (2001): 379431.
738
david freestone
2001 South-East Atlantic Fisheries Organisation (SEAFO)35 and the 2009 South
Pacific Regional Fisheries Management Organisation were concluded after the
1992 UN Conference on Environment and Development (UNCED) and the finalisation of the 1995 UN Fish Stocks Agreement. As fisheries management bodies
they are expressly mandated by the LOS Convention itself to incorporate environmental concerns into their marine conservation and management regimes,
but in addition they are to address the new concerns regarding ecosystem maintenance and conservation of biological diversity introduced by the UNCED, notably through the UN Fish Stocks Agreement and the large number of non-binding
instruments which have followed it. In a ground-breaking decision, the parties
to NEAFC incorporated these concerns retrospectively. At the 24th meeting of
the NEAFC parties in 2005 they approved a Declaration on the Interpretation
and Implementation of the Convention on the Future Multilateral Cooperation
in North-East Atlantic Fisheries, agreeing to incorporate the post UNCED global
agreements and instruments into their own regime.36
In recent years, in addition to developments in relation to deep-sea bottom
fisheries on the high seas which is discussed further below,37 steps have been
taken to address the pernicious problem of IUU fishing, through more thorough
investigation of flag-State and RFMO performance at both the global and regional
levels.38 The LOSC recognises that all States have the right for their nationals to
engage in fishing on the high seas.39 However, it specifically subjects that right
to three factors: 1) existing treaty obligations; 2) the rights and duties, as well as
interests, of coastal States;40 and 3) the other provisions of the Convention
including the duty to take necessary measures for the conservation of the living
resources of the high seas and to cooperate in the conservation and management
of high-seas living resources (through RFMOs).41
35Convention on the Conservation and Management of the Fisheries Resources in the SouthEast Atlantic Ocean, opened for signature, 20 April 2001, entered into force 13 April
2003, text reprinted in ILM, 41 (2002): 257ff. See also Andrew Jackson, The Convention
on the Conservation and Management of Fishery Resources in the South East Atlantic
Ocean, 2001: An Introduction, International Journal of Marine and Coastal Law, 17
(2002): 3378.
36In 2006 NEAFC was also the first RFMO to undertake a performance review as
recommended by FAO COFI for all RFMOs, see further below. Note also that in 2007
NAFO approved an amendment to its Convention incorporating these same concerns;
see, www.nafo.int/about/ frames/about.html.
37P. 741 ff., below.
38For further in-depth discussion, see Terje Lobach, Combating IUU Fishing: Interaction
of Global and Regional Initiatives, in Vidas (ed.), Law, Technology and Science for
Oceans in Globalisation, 109129.
39LOSC, Article 116.
40Ibid., inter alia, Articles 63(2) and 6467.
41 Ibid., Part VII, Section 2. Note especially that Article 119(1)(a) of LOSC requires the
taking of measures to maintain or restore populations of harvested species at levels
governing the blue
739
However, the specific provisions relating to cooperative action are largely
hortatoryimposing an obligation simply to negotiate in good faith.42 The
unfinished agenda of these provisions was highlighted by Agenda 21 of the 1992
UN Conference on Environment and Development. As a result, it was supplemented by the 1993 FAO Compliance Agreement43 and, after several negotiating
sessions, by the 1995 UN Fish Stocks Agreement that introduced a large number of
modern fisheries management provisions into the international regime for straddling fish stocks and highly migratory fish stocks.44 The UN Fish Stocks Agreement commits its parties to the sustainable use of such stocks; it endorses an
ecosystem approach45 and a precautionary approach to the conservation of these
stocks.46 These and other provisions of the UN Fish Stocks Agreement are reflected
in the Code of Conduct for Responsible Fisheries concluded by FAO in 1995 immediately after the finalisation of the UN Fish Stocks Agreement text.
Appreciating that overfishing and destructive fishing practices have been identified as the main causes of loss of ocean biodiversity, FAO has sought to address
other important threats to sustainable fisheries by a series of non-binding instruments called International Plans of Action (IPOAs).47 Three IPOAs were adopted
in 1999 by COFI: the IPOA for Reducing Incidental Catch of Seabirds in Longline
Fisheries; the IPOA for the Conservation and Management of Sharks; and the IPOA
for the Management of Fishing Capacity. In June 2001 the FAO Council endorsed
the IPOA to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated
Fishing (IPOA-IUU). It contains an extensive toolkit of actions that States can
which can produce the maximum sustainable yield, and these measures must be
based on the best scientific evidence available and must accommodate relevant
environmental as well as economic factors including the special requirements of
developing States, and taking into account fishing patterns, the interdependence
of stocks and any generally recommended international minimum standards, whether
subregional, regional or global.
42LOSC, Articles 6364.
43Agreement to Promote Compliance with International Conservation and Management
Measures by Fishing Vessels on the High Seas, 2221 UNTS 91; text reprinted in ILM,
33(1994): 968. The FAO Compliance Agreement was approved on 24 November 1993 by
Resolution 15/93 of the Twenty-Seventh Session of the FAO Conference and entered in
force on 24 April 2003.
44See further, Freestone and Makuch, The New International Environmental Law of
Fisheries, 349.
45UN Fish Stocks Agreement, Article 5.
46Ibid., Article 6, with a clear methodology for its application to capture fisheries set out
in Annex II.
47For further in-depth discussion, see David Doulman, FAO Action to Combat IUU
Fishing: Scope of initiatives and Constraints on Implementation, in Vidas (ed.), Law,
Technology and Science for Oceans in Globalisation, 131155.
740
david freestone
take against such vessels.48 The 2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem included a commitment to work to include ecosystem considerations in fisheries management activities.49 However, little progress
appears to have been made with respect to guidelines for marine protected areas
(MPAs) for fisheries management purposes that the UNGA requested the FAO to
develop in 2006 also as part of its Resolution 61/105 (paragraph 92).
Although many RFMOs have overlapping parties, there has until recently
been very little formal coordination of conservation and management activities.50 Indeed, the ability of RFMOs to take effective management and conservation decisions is hampered by their own decision-making processes which have
extensive opt-out procedures and are not necessarily obliged to reflect the best
available scientific advice. In addition, comes the question of the willingness of
member States to police rigorously the activities of their own vessels and the
activities of non-parties.
Many of the tuna RFMOs are still operating under the old rules, however.
Attempts to update their charters are not progressing rapidly,51 although such
changes may result from the series of performance reviews undertaken by the
majority of these bodies and the consultation process that they have commenced
between themselves, called the Kobe Process after the first meeting in Japan in
2007.52 A third meeting was held in La Jolla, California in July 2011.
Coastal States in a number of regions have also established regional environmental conventional regimes. More than 140 countries participate in thirteen
Regional Seas programmes established under the auspices of UNEP regional seas
programme covering the Black Sea, Wider Caribbean, East Asian Seas, Eastern
Africa, South Asian Seas, ROPME Sea Area, Mediterranean, North-East Pacific,
North-West Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and
Western Africa. Six of these programmes are directly administered by UNEP.53 All
Regional Seas programmes have developed Action Plans; most of them have also
48For a full discussion see Mary Ann Palma, Martin Tsamenyi and William Edeson,
Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat
Illegal, Unreported and Unregulated Fishing (Leiden: Martinus Nijhoff, 2010).
49The 2002 Plan of Implementation of the World Summit on Sustainable Development
called for, inter alia, the application of the Reykjavik Declaration by 2010 as one of the
steps essential for ensuring the sustainable development of the oceans.
50Although see the discussion of the Kobe Process among the tuna RFMOs below.
51 See, for example, regarding IOTC, Willam R. Edeson, An International Legal
Extravaganza in the Indian Ocean: Placing the Indian Ocean Tuna Commission outside
the Framework of FAO, International Journal of Marine and Coastal Law, 22 (2007):
485516.
52See below and for the reports of the performance review and consultative meetings see,
http://74.125.153.132/search?q=cache:JN0W--cveHwJ:www.tuna-org.org/+tuna+RFMOs&
cd=1&hl=en&ct= clnk&gl=au.
53See, www.unep.org/regionalseas/about/default.asp.
governing the blue
741
developed specific legal frameworks with conventions and protocols. No conventions have yet been developed for the East Asian Seas, South Asian Seas, NorthWest Pacific, North-East Pacific, or for the Arctic.
In addition there are several partner programmes of regional seas treaties
which are not under the UNEP umbrella. These regional treaty regimes include
those for the Antarctic,54 the Baltic,55 the Caspian,56 and the North-East Atlantic.57
It is important to note that these conventions are primarily groupings of coastal
States, and their jurisdiction is generally restricted to their national zones of
maritime jurisdiction out to 200nm. The exceptions are the following: the OSPAR
Convention area, which has high-seas areas within its remit; the Mediterranean,
where most coastal States have for various reasons not yet claimed EEZs; the
South Pacific, which includes within its mandate the donut holes between
the EEZs of its members; and the Antarctic Treaty System, consisting of both the
Antarctic Treaty58 and its Protocol on Environmental Protection59 as well as
the CAMLR Convention, which is a genuinely ecosystem-based regime that regulates the Antarctic marine living resources of the area south of 60 South latitude
and the Antarctic marine living resources of the area between that latitude and
the Antarctic Convergence which form part of the Antarctic marine ecosystem.60
The Activities of the UN General Assembly
International concern has been growing at the lack of an adequate comprehensive framework for governance of the high seas. As we have seen, neither the
regional seas organisations nor the regional fisheries management organisations
cover all ocean regions or activities, or even all ocean activities. Recent activities
54CAMLR Convention.
55Convention on the Protection of the Marine Environment of the Baltic Sea Area, opened
for signature 9 April 1992, entered into force 7 January 2000 (Helsinki Convention)
www.helcom.fi/stc/files/Convention/Conv 1108.pdf.
56Framework Convention for the Protection of the Marine Environment of the Caspian
Sea, opened for signature 4 November 2003, entered into force 12 August 2006 www
.caspianenvironment.org/newsite/ Convention-Framework ConventionText.htm.
57The Convention for the Protection of the Marine Environment of the North-East
AtlanticOslo and Paris conventions adopted 1974, revised and combined into OSPAR
Convention, opened for signature 22 September 1992, entered into force 25 March
1998) www. ospar.org. (OSPAR Convention)
58Antarctic Treaty, opened for signature 1 December 1959, entered into force 23 June
1961, 402 UNTS 71.
59Protocol on Environmental Protection to the Antarctic Treaty, opened for signature
4 October 1991, entered into force 14 January 1998, 30 (1991) ILM 1461 (Madrid Protocol).
60Article I of the CAMLR Convention. On the definition of the CAMLR Convention area,
see Miller, Slicer and Sabourenkov, IUU Fishing in Antarctic Waters: CCAMLR Actions
and Regulations, 176177, including a map illustration.
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david freestone
such as bio-prospecting that may affect the seabed and its resources remain
unregulated, and emerging activities such as ocean fertilisation and other carbon
sequestration schemes are only slowly finding a home in the international regulatory regime for ocean dumping.61
While the international community is beginning to respond, progress has been
slow. Of course, overfishing is not the only threat to marine biodiversity, but overfishing of high seas fish stocks, particularly from IUU fishing activities, has been
the subject of a range of ongoing international activities. The unregulated exploitation of deep-sea fish stocks such as orange roughy and Patagonian toothfish,
including by bottom-trawling over unique sea-mount ecosystems, has prompted
wide concern.
In 2004, UN General Assembly (UNGA) Resolution 59/2562 called on States
acting individually or through RFMOs to take action urgently, and to consider on a
case-by-case basis and on a scientific basis, including the application of the precautionary approach, the interim prohibition of destructive fishing practices, including bottom-trawling that has adverse impacts on vulnerable marine ecosystems,
including seamounts, hydrothermal vents and cold-water corals located beyond
national jurisdiction, until such time as appropriate conservation and management measures have been adopted in accordance with international law.63
In 2006, the UNGA went further; its Resolution 61/105 (paragraph 80)64 called
upon States to take action immediately, individually and through regional fisheries management organisations and arrangements, and consistent with the precautionary approach and ecosystem approaches, to manage fish stocks sustainably
and protect vulnerable marine ecosystems, including seamounts, hydrothermal
vents and cold-water corals, from destructive fishing practices, recognising the
immense importance and value of deep-sea ecosystems and the biodiversity they
contain. Later paragraphs in the resolution described the expected action and set
deadlines (of 31 December 2007 for areas where there were no RFMOs, and 31
December 2008 for areas with RFMOs).
In summary, paragraphs 8091 of Resolution 61/105 called for States and
RFMOs to assess the impacts of individual bottom-fisheries activities in order to
determine if such fishing activities would cause significant adverse impacts on
vulnerable marine ecosystems, and to either manage the fishery so as to prevent
61 See Philomne Verlaan, Geo-engineering, the Law of the Sea, and Climate Change,
Carbon and Climate Law Review, 4 (2009): 446458; Philomne Verlaan, Current Legal
Developments: London Convention and London Protocol, International Journal of
Marine and Coastal Law, 26 (2011): 185194.
62UNGA Resolution 59/25 of 17 November 2004 (UN doc. A/RES/59/25), GAOR 59th
Session, Supp. 49, Volume 1, paragraph 30.
63Ibid., paragraph 66.
64UNGA Resolution 61/105 of 8 December 2006 (UN doc. A/RES/61/105), GAOR 61st
Session, Supp. 49 Volume 1.
governing the blue
743
such impacts or not authorise the fishing to proceed. The UN Secretary-Generals
report on progress with respect to implementation of Resolution 61/105,
paragraphs 8090, was released in August 2009, for re-view by the UNGA in
SeptemberNovember to determine whether and what additional measures
might be necessary.65 The report concluded that, despite progress,
implementation of the Resolution has been uneven and further efforts are needed
in this regard, including through the adoption and implementation of conservation
and management measures to address the impacts of bottom fishing activities on
vulnerable marine ecosystems.
Further to the 2009 UNGA Resolution 64/72, which reaffirmed and clarified the
obligations in Resolution 61/105 for prior environmental impact assessments and
for progress with respect to both the prevention of biodiversity and the sustainability of deep sea fisheries, the UNGA is due to review progress in September 2011.
The UNGA also requested the FAO to develop guidelines for managing deepsea fisheries on the high seas and the protection of vulnerable marine ecosystems.66 Pursuant to this mandate, in March 2007, the FAO Committee on
Fisheries (COFI) requested the development of International Guidelines for the
Management of Deep-Sea Fisheries in the High Seas to assist States and regional
fisheries management organisations and arrangements in sustainably managing
deep-sea fisheries. These guidelines were adopted in August 2008.67
To address the full realm of issues relating to biodiversity in areas beyond
national jurisdiction, in 2004 on the recommendation of the UN Informal Consultative Process on the Oceans and the Law of the Sea (UNICPOLOS) the UN
General Assembly agreed to establish an Ad Hoc Open-ended In-formal Working
Group to study issues relating to the conservation and sustainable use of marine
biological diversity beyond areas of national jurisdiction. This Working Group
held its first meeting in 2006; a second ran from 28 April to 2 May 2008, a third
meeting was held in January 2010, and a fourth was held in May 2011. Several
important proposals have been discussed at these meetings including, as mentioned above, a European Union proposal for a new implementing agreement
to develop a more specific framework to address, inter alia, conservation and
sustainable use of marine biodiversity beyond national jurisdiction. It is envisaged
65Reports on implementation of these obligations have been prepared, inter alia, by
IUCN and the Deep Sea Conservation Coalition.: IUCN study regarding implementation
of UNGA Resolution 61/105, paragraphs 8390 with respect to deep sea bottom fishing
on the high seas. Also see, M. Gianni, Review of the Implementation of the UNGA
Agreement to Protect Deep-sea Ecosystems on the High Seas, Deep Sea Coalition, 2009,
www.savethehighseas.org.
66Resolution 61/105, paragraph 53.
67International Guidelines for the Management of Deep-Sea Fisheries in the High
Seas, in FAO, Report of the Technical Consultation on International Guidelines for the
Management of Deep-Sea Fisheries in the High Seas (Rome: FAO, 2009), 39.
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david freestone
that such an implementing agreement or agreements could supplement the 1995
UN Fish Stocks Agreement, which elaborated and modernised the 1982 LOS Convention with respect to highly migratory and straddling fish stocks.
Other States have indicated that improved implementation should be the first
priority, but have not all provided their views on what might be done to enhance
implementation with respect to biodiversity conservation in general. Unfortunately the lively debates on improved governance have been overshadowed by
controversy over the future regime for exploitation of marine genetic resources
beyond national jurisdiction.68 The G77 and China have argued that the common heritage of mankind concept that the LOSC applies to deep sea minerals,69
should also apply to the living resources of the deep ocean floor, many of which
may have important industrial and pharmaceutical potential. They argue that if
the drafters of the 1982 Convention had been aware of these resourcesrather
than simply being aware of the famous manganese nodulesthen they would
doubtless have included these living resources within the deep sea bed regime.
The result has been something of a stalemate in the discussions at the BBNJ
Working Group, but at the May 2011 Meeting there was something of a breakthrough. It was agreed that the two issues should linked and that:
A process be initiated, by the UNGA, with a view to ensure that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond
national jurisdiction effectively addresses those issues by identifying gaps and ways
forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under UNCLOS. This process would
address the conservation and sustainable use of marine biodiversity in areas beyond
national jurisdiction, in particular, together and as a whole, marine genetic resources,
including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, and environmental impact assessments, capacity-building and the transfer of marine technology.
In the context of the UNGA discussions, various expert working groups have
also suggested that it would assist in clarifying the debates over the emerging
68The controversy involves the question of should these be subject to the Common
Heritage of Mankind principle as proposed by the G77 or a continuing open access
regime? For an excellent assessment of the issues and potential of bio-prospecting see
David Leary, M. Vierros, G. Hamon, S. Arico, C. Monagle, Marine Genetic Resources:
A Review of the Scientific and Commercial Interest, Marine Policy, 33(2009): 183194. A
comprehensive analysis of various legal issues involved is found in Part IV, Marine
Genetic Resources and Bio-prospecting, in Vidas (ed.), Law, Technology and Science for
Oceans in Globalisation, pp. 309419.
69See, LOSC, Article 138: The Area and its resources are the common heritage of
mankind. LOSC, Article 133 further provides that resources means all solid liquid
or gaseous mineral resources in situ in the Area at or beneath the seabed, including
polymetallic nodules.
governing the blue
745
high-seas governance regime if one could set out more clearly and explicitly
the basic principles that the international community has already established
and agreed to, in existing legal and policy instruments, in relation to the use and
exploitation of the high seas. These principles could at some point be more
formally enumeratedwhether as a free-standing declaration (perhaps by the
UNGA) or as a part of a new international agreement or arrangement including
an implementing agreement. The issue of these applicable modern principles was
discussed and elaborated upon at a work-shop held by the International Union
for Conservation of Nature (IUCN) in October 200770 and further explored by
other international expert groups.71 In September 2008, the IUCN Global Marine
Programme decided to help clarify these existing principles, issuing a document
Ten Principles of High Seas Governance to assist with this process.72
The Convention on Biological Diversity
As indicated, the LOSC high-seas framework was transformed by the new concerns for ecosystem maintenance and conservation of biological diversity introduced by the UNCED in 1992, but these have focused primarily on high seas
fisheries, notably through the 1995 UN Fish Stocks Agreement and the large number of non-binding instruments that have followed it. The Convention on Biological
70Rosemary Rayfuse, David Freestone, Kristina Gjerde and David Vanderzwaag, Co-Chairs
Report of Workshop on High Seas Governance for the 21st Century, New York, 1719 October
2007, http: //cmsdata.iucn.org/downloads/iucn_workshop_co_chairs_summary_new_
iucn_format.pdf. See also David Freestone, Principles Applicable to Modern Oceans
Governance, International Journal of Marine and Coastal Law, 23(2008): 385391.
71 See, Biliana Cicin-Sain and David Freestone, Report from the Strategic Planning
Workshop on Global Ocean Issues in Marine Areas Beyond National Jurisdiction in
the Context of Climate Change, Strategic Planning Workshop on Global Ocean Issues
in Marine Areas Beyond National Jurisdiction in the Context of Climate Change, Nice,
2325 January 2008, www.globaloceans.org/globalconferences/2008/pdf/High-Seas-PBApril9.pd. See also, Miriam Balgos, Caitlin Snyder, Biliana Cicin-Sain, David Freestone
and Chris Tompkins, Executive Summary on the Workshop on Governance of Marine
Areas Beyond National Jurisdiction: Management Issues and Policy Options Workshop
on Governance of Marine Areas Beyond National Jurisdiction: Management Issues and
Policy Options, Singapore, 35 November 2008, www.globaloceans. org/sites/udel.edu
.globaloceans/files/Singapore-Workshop-ExecutiveSummary.pdf.
72At the IUCN 4th World Conservation Congress, in Barcelona on 7 October 2008, IUCN
President Valli Moosa of South Africa chaired a plenary session presenting the
IUCN Ten Principles of High Seas Governance. For a more detailed exposition of these
principles and their legal basis see Freestone, Principles Applicable to Modern Oceans
Governance, above n. 70, 385391; and David Freestone, Modern Principles of High
Seas Governance: The Legal Underpinnings, International Environmental Policy and
Law, 39(2009): 4449.
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david freestone
Diversity (CBD)73 itself contains little on marine biodiversity conservation; but,
acting under the Jakarta Mandate on the Conservation and Sustainable Use of
Marine and Coastal Biological Diversity,74 the parties have implemented several
important initiatives designed to set in place systems to protect marine biodiversity in areas within national jurisdiction and scientific information and advice
regarding marine biodiversity beyond areas of national jurisdiction. At its Conference of Parties (COP 9) in Bonn the CBD called for the compilation and synthesis
of available scientific information on potential impacts of direct human-induced
ocean fertilisation on marine biodiversity, as well as available scientific information on ocean acidification and its impacts on marine biodiversity and habitats,
which it identified as a potentially serious threat to cold-water corals and other
marine biodiversity. It also agreed to convene an expert workshop to discuss
scientific and technical aspects relevant to environmental impact assessment in
areas beyond national jurisdiction.75
Most importantly perhaps, by Decision IX/20, COP 9 adopted the scientific
criteria (in Annex I) for identifying ecologically or biologically significant marine
areas in need of protection, and the scientific guidance (in Annex II) for designing representative networks of marine protected areas,76 and requested the Executive Secretary to transmit the information contained in Annexes I and II to the
relevant General Assembly processes. It then urged its parties, and invited other
governments and relevant organisations, to:
apply, as appropriate, the scientific criteria in annex I, the scientific guidance in annex
II, and initial steps in annex III, to identify ecologically or biologically significant and/
or vulnerable marine areas in need of protection, with a view to assist the relevant
processes within the General Assembly and implement conservation and management measures, including the establishment of representative networks of marine
protected areas in accordance with international law, including the United Nations
Convention on the Law of the Sea, and recognizing that these criteria may require
adaptation by Parties if they choose to apply them within their national jurisdiction
noting that they will do so with regard to national policies and criteria.77
To help parties in their efforts to apply the CBD criteria and guidance, the Secretariat of the CBD was requested by the COP 9 to convene an expert workshop
73The Convention on Biological Diversity, opened for signature 5 June 1992, entered into
force 29 December 1993, 1760 UNTS 79 (CBD).
74Report of the Second Meeting of the Conference of the Parties to the Convention on
Biological Diversity, held at Jakarta from 6 to 17 November 1995, UN doc. A/51/312, of
9 September 1996, Annex II, Decision II/10.
75Decision IX/20, Marine and Coastal Biodiversity, para. 10; see, www.cbd.int/decision/
cop/?id=11663.
76As recommended by the Expert Workshop on Ecological Criteria and Biogeographic
Classification Systems for Marine Areas in Need of Protection, held in the Azores,
Portugal, from 2 to 4 October 2007.
77Decision IX/20, para. 18.
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747
on scientific and technical guidance on the use of bio-geographic classification
systems and identification of marine areas beyond national jurisdiction in need
of protection. The expert workshop was held from 29 September to 2 October
2009 in Ottawa, Canada. Its mandate was to review and synthesise progress on
the identification of areas beyond national jurisdiction which meet the scientific
criteria and assess experience with the use of bio-geographic classification systems in marine conservation and management. This enabled the workshop to
provide scientific and technical guidance on the identification of areas beyond
national jurisdiction that meet the CBD scientific criteria, as well as guidance
on the use and further development of bio-geographic classification systems to
inform international cooperation and action. Progress in this regard fed into discussions within the relevant United Nations processes as well as into COP 10 in
Nagoya, Japan in October 2010.78
In Nagoya, the COP mandated the CBD Secretariat to work with Parties and
other Governments as well as with as competent organisations and regional initiatives to convenes a series of regional workshops and to report back to the CBD
Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) and
then to the COP 11:
with a primary objective to facilitate the description of ecologically or biologically
significant marine areas through application of scientific criteria in annex I of decision IX/20 as well as other relevant compatible and complementary nationally and
inter-governmentally agreed scientific criteria, as well as the scientific guidance on the
identification of marine areas beyond national jurisdiction, which meet the scientific
criteria in annex I to decision IX/20 [emphasis added].79
During 2011 and early 2012 Workshops were held in the OSPAR Region, in the
South Pacific and the Caribbean Regions. The reports of these scientific meetings
were discussed at the SBSTTA Meeting in Montreal, 30 April5 May 2012 and
then at the COP 11 in October 2012 in Hyderabad, India.
The identification of these EBSAs has no per se legal significance. Their identification represents a scientific assessment by specialists of the importance of
particular marine ecosystems. However, the development and approval by the
CBD of, first, the criteria and then, second, the sites of such Ecologically or
Biologically Significant Areas (EBSAs) provides a major incentive for the protection of such areas once they have been identifiedeven, or perhaps especially, in areas beyond national jurisdiction. Serious questions still remain to
be addressed about how to stimulate international and regional cooperation
to protect areas identified by the international community as meeting the CBD
78For CBD COP 10 Decisions, see, www.cbd.int/cop10/doc/.
79COP 10 Decision X/29. Marine and Coastal Biodiversity, paragraph 36. (emphasis added),
http://www.cbd.int/decision/cop/?id=12295.
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david freestone
scientific criteria for areas in need of protection that are located beyond national
jurisdiction, given that threats can come from a wide range of possible activities.
As noted above, some RFMOs still operate under agreements that do not
reflect ecosystem-based or precautionary approaches to management of fisheries
resources, not to mention the protection of ecosystems and marine biodiversity
that, under the UN Fish Stocks Agreement, States parties are required to protect.
Also, many oceanic regions beyond national jurisdiction do not have organisations to assist in integrated and cooperative regional management. Thus more
may be required in terms of improving the performance of RFMOs and other sectoral organisations with respect to biodiversity conservation, and default mechanisms may be needed for regional and/or global cooperation where no regional
organisation or action plan exists. The Sargasso Sea provides a vivid example of
exactly this issue.
The Sargasso Sea
Named for the algae that accumulates in the North Atlantic Subtropical Gyre and
which forms into huge mats or windrows, the Sargasso Sea is the worlds only sea
not bordered by mainland coasts; only the tiny islands of Bermuda have direct
coastal frontage. The Sargasso Sea is an area of some 4 million km2, bounded
on all sides by the clockwise flow of major ocean currents: The Gulf Stream and
North Atlantic Drift form the western and northern boundaries, the Canary Current forms a more diffuse eastern boundary, and the North Equatorial Current
and Antilles Current form the southern boundary. Just as the currents vary, the
boundaries of the Sargasso Sea also vary. The sargassum is home to a range of
endemic species and the Sargasso Sea is a major feeding and migration route for
a number of threatened and endangered species including sea turtles, humpback
and sperm whales, as well as for commercially important tunas and billfish. It is
the only place in the world where the catadromous American eel (Anguilla rostrata), and endangered European eel (Anguilla anguilla) spawn.80
Bermuda, at the centre of the Sargasso Sea, is an overseas territory of the
United Kingdom. It claims a 200 nautical mile EEZ of some 464,940 sq km or
179,514 square miles81 Beyond the Bermudian EEZ, however, the remainder of the
Sargasso Sea is largely ABNJ.82 The Sargasso Sea Alliance, led by the Government
80The European eel is protected by EC Regulations. Council Regulation (EC) No. 1100/
2007 of 18 September 2007 establishing measures for the recovery of the stock of
European eel OJ 2007 L248/17.
81 UK Hydrographic Office calculation. Dr Tammy Trott, pers. Comm. (on file)
82Depending on what is defined to be the geographical extent of the Sargasso Sea, it can
be taken to extend into the EEZs of the United States to the East and the Northern
Antillean islands to the south. The Alliance has commissioned a new map based on
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749
of Bermuda, is seeking to establish appropriate protection measures area in the
high seas areas of the Sargasso Sea using the existing legal framework and existing sectoral bodies.83 The Alliance has three basic aims:
To build an international partnership to secure global recognition of the importance and ecological significance of the Sargasso Sea, the threats that it faces,
and the precautionary management it needs;
To use existing regional, sectoral and international organisations to secure a
range of protective measures for the Sargasso Sea; and
To use the current process as an example of what can and cannot be delivered
through existing frameworks in marine ABNJ to inform the global debate and
provide a model for protection of other high seas regions.
The northern edges of the Sargasso Sea and of the Bermudian EEZ do extend
into the geographical area of competence of the North West Atlantic Fishing Organisation (NAFO). However, the majority of the high seas areas of the
Sargasso Sea are neither covered by a regional environmental agreement nor a
regional fisheries management organisation. This is in distinct contrast with the
ABNJ areas of the North-east Atlantic which are included within the area of competence of both a regional environmental agreement, in the shape of the 1992
OSPAR Convention,84 and a corresponding regional fisheries management body
the North East Atlantic Fisheries Commission (NEAFC).
In the Sargasso Sea, the only international bodies that have sectoral jurisdiction are the IMO, in relation to shipping and marine pollution issues, the International Convention for the Conservation of Atlantic Tunas (ICCAT), which
regulates fisheries for tuna and tuna-like species in the north and south Atlantic,
and the International Seabed Authority (ISA) which has jurisdiction over seabed
mineral resource exploration and exploitation.
The Sargasso Sea Initiative was only started in 2010, but it has already become
clear that there are major challenges in seeking to use existing sectoral organisations to achieve a purpose that is greater than each of their individual mandates. Although all three of the organisations mentioned above have powers to
protect marine areasincluding ABNJin various ways, it is clear that there is
absolutely no coordination between these organizations. The culture, processes
and epistemic communities of each of these institutions are also entirely different. Conservation arguments raised in one institution carry little, if any, weight
in the others. Because IMO serves the shipping community, ICCAT the fishing
criteria such as ocean current and eddy occurrence, remote sensing of Sargassum weed,
and historical mapping. It can be viewed at, www.sargassoalliance.org.
83See, www.sargassoalliance.com.
84See above, footnote 54.
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david freestone
community, and the ISA is a more mainstream UN process, their respective formal meeting agendas and even schedules are, perhaps quite understandably, put
together without regard to the activities of other sectoral bodies.85 It may be
hoped that the EBSA process initiated by the CBD will provide a unifying conceptual framework for the identification of areas in SBNJ that are worthy of conservation, but history has shown that each organisation is most strongly wedded
to its own frameworks.
Conclusions
The governance of areas beyond national jurisdiction is probably the most pressing marine issue facing the world community. It is paradoxical that, on the
one hand, science is helping us to appreciate more fully the rich biodiversity
of marine areas beyond national zones and the important role this plays in the
global system, including helping to regulate its climate; while on the other hand,
these high seas areas face increasing adverse impactsboth from the intensification of existing human activities and from major new risks. IUU fishing for
deep-ocean species, continuing bottom-trawling over seamounts, exploration of
hydrothermal vents as well as proposals for geo-engineering activities such as
iron fertilisationthese are just some of the activities which reveal the lack of
an holistic system of governance for these areas, built on established and agreed
basic principles.
This paper has sought to set out the key risks that high seas areas face, the
plethora of bodies with regional and sectoral jurisdiction but also the lacunae
the regulatory and governance gaps that remain. The attention of the international community has been focused on this issue for some time already. The UN
General Assembly has mandated several important actions; and the meetings of
the ponderously named Ad Hoc Open-ended Informal Working Group to study
issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction have helped to widen our understanding and to focus informed opinion on the major issues facing the high seas and
may have already made an important break thorough in its proposals for a new,
process to be initiated, by the UNGA, with a view to ensure that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond
national jurisdiction...including through the implementation of existing instruments and the possible development of a multilateral agreement under UNCLOS.
85For example, the second week of July 2011 saw a meeting of the IMO Marine Environment
Protection Committee, the ISA Legal and Technical Commission and Kobe 3the
third meeting of the various Tuna Commissions.
governing the blue
751
Other important initiatives are underway but progress has been very slow. The
case for a new instrument, perhaps based on agreed principles, that can pull
together all the various themes and sectoral responsibilities discussed above and
provide some overarching system of governance of the high seas is becoming very
difficult to resist.
chapter Thirty-Three
Beyond Delimitation: Interaction between the Outer
Continental Shelf and High Seas Regimes
Joanna Mossop*
Introduction
So far at least 78 States have made submissions to the Commission on the Limits
of the Continental Shelf (CLCS) in respect of their continental shelves beyond 200
nautical miles. Ultimately up to 85 States (approximately half of all coastal States)
will, sooner or later, begin to consider how to manage and regulate activities on
their outer continental shelf, with the goal of maximising and protecting their
sovereign rights. To date, the attention of the academic and government communities has been on the process of defining the limits of the outer continental
shelf and the operation of the CLCS. Now that some countries have received the
CLCS recommendations, the questions will inevitably focus less on how much do
we have? and more on what do we do with what we have?
This chapter focuses on the issue of the intersection between high seas and
outer continental shelf rights. Article 78(2) states that the exercise of the rights
of the coastal State over the continental shelf must not infringe or result in any
unjustifiable interference with navigation and other rights and freedoms of other
states. It is argued that this statement makes it clear that some interference with
high seas freedoms is permissible in order to protect coastal States interests in
the resources of the sea floor. The more difficult question is how to balance those
freedoms in practice. What forms of regulation could the coastal State impose
without unjustifiably interfering with the freedoms of the high seas?
Development of the Continental Shelf Regime
The history of interest in the continental shelf for resource exploitation is
lengthy. The Truman Proclamation of 1945 is often referred to as the emergence
*Senior Lecturer, Law Faculty, Victoria University of Wellington, New Zealand.
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joanna mossop
of the modern regime for the continental shelf, although the interest in shelf
resources was growing well before that time.1 In that Proclamation, President
Truman asserted the sovereign interest of the United States in the resources of
the continental shelf, while also declining to make a claim of sovereignty to the
shelf itself.2 This was a carefully crafted move to undermine the proponents of
States claiming full sovereignty over the seabed, a prospect that made many
States nervous about the potentially open-ended expansion of State sovereignty.
Although some States continued to claim sovereignty in the continental shelf, by
the time the 1958 Geneva Convention on the Continental Shelf (Geneva Convention)3
was concluded, most States accepted the basic formula of sovereign rights to the
resources of the continental shelf.4
Of course, the key motivation for claiming sovereign rights over the resources
of the shelf was the prospect of oil and gas reserves being claimed by other States.
The idea that the coastal State should control oil and gas produced off its shores
made sense to most, making the concept underpinning the Truman Proclamation
a relatively straight forward policy goal.
It was a handful of States that ensured, when the Geneva Convention was negotiated, that living resources were included in the basket of resources over which
coastal States had sovereign rights. The important living shelf resources at that
time were oysters and coral, some of which were valuable historic fisheries for
States such as Australia.5 At the urging of these States, the Geneva Convention
assigned coastal States the rights to sedentary species: organisms which, at the
harvestable stage, are either immobile on or under the seabed or are unable to
move except in constant physical contact with the seabed or the subsoil.6 Since
the Geneva Convention States have included a range of other commercially important species within the category of sedentary species including scallops, lobsters
and king crabs.7
1Robin R. Churchill and A. Vaughan Lowe, The Law of the Sea, 3rd edition (Manchester:
Manchester University Press, 1999) 143.
2Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed
of the Continental Shelf, Proclamation 2667 of September 28, 1945, 10 Fed. Reg. 12,305
(1945).
3Convention on the Continental Shelf, opened for signature 29 April 1958, entered into
force 10 June 1964, 499 UNTS 311 (Geneva Convention).
4Churchill and Lowe, The Law of the Sea, 144.
5See Daniel P. OConnell, Sedentary Fisheries and the Australian Continental Shelf,
American Journal of International Law, 49 (1955): 185 and Shirley V. Scott, The Inclusion of Sedentary Fisheries within the Continental Shelf Doctrine, International and
Comparative Law Quarterly, 41 (1992): 788.
6Article 2(4), Geneva Convention.
7Joanna Mossop, Protecting Marine Biodiversity on the Continental Shelf Beyond 200
Nautical Miles, Ocean Development and International Law, 38 (2007): 283, 292.
beyond delimitation
755
The most problematic aspect of the Geneva Convention was that it did not
establish a fixed outer limit for the continental shelf. Instead, it stated that the
rights applied to the seabed beyond the territorial sea to a depth of 200 metres,
or beyond that limit, to where the depth of the superjacent waters admits of
the exploitation of the natural resources of the said areas.8 This definition
essentially allowed for progressive expansion of the continental shelf area as
technology developed to allow for deeper oil and gas wells. By the time that
the United Nations Convention on the Law of the Sea (LOSC)9 was being negotiated, the emerging concept of the common heritage of mankind for the deep
seabed meant that a clear limit to the continental shelf would be necessary. One
option was to end the continental shelf at 200 nautical miles, coterminous with
the exclusive economic zone (EEZ). However, States with extensive continental
shelves successfully argued that the outer limit of the continental shelf should
reflect the geological reality: that is, that if States had a larger continental shelf
in fact, then they should be entitled to the resources of that shelf. Article 76 set
out a complicated formula for determining the outer limit.
The changed definition of the outer limits of the continental shelf was the
primary alteration to the rights under the Geneva Convention. Additionally, Article 82 imposes a system of royalty payments for exploitation of the non-living
resources of the outer continental shelf. In most other respects, Part VI of the
LOSC encapsulates the provisions of the Geneva Convention.
The result of the LOSC framework is that some States are entitled to sovereign
rights to the resources of the continental shelf beyond 200 nautical miles if the
physical continental margin extends that far (the so-called extended or outer
continental shelf). The unique situation that arises is that the State has rights to
the living and non-living resources of the continental shelf, but the water column
above the shelf is governed by the high seas regimes. The LOSC, borrowing from
the Geneva Convention, has some guidance on how this situation might be managed, but arguably the provisions do not reflect the full range of activities that
might be expected to develop on the outer continental shelf in the future.
Potential Activities and Coastal State Interests Relating to the
Outer Continental Shelf
The range of activities on the continental shelf and the extent of those activities
have expanded since the negotiation of the LOSC. Although oil and gas exploitation remains the primary interest relating to non-living resources, increasing
attention is being paid to underwater mineral deposits. The harvesting of sedentary
8Article 1, Geneva Convention.
9United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
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joanna mossop
species is not novel, but developments in fishing technology allow access to
ever deeper areas of the oceans. In addition, new scientific understanding of the
resources of the continental shelf indicates that, in addition to untapped oil and
gas reserves, more complex ecological systems than previously thought to exist
are present in the deeper waters of the continental shelf.10 Therefore as technology improves, we can expect to see greater interest in exploring and exploiting
the resources of the outer continental shelf.
The continental shelfoften referred to in the scientific literature as the continental marginhas been described as the most geologically diverse component
of the deep-ocean floor, containing a range of habitats for biological resources.11
Continental margins can be passive (where the continent has been split in two
and is moving apart) or active (where the crust is sinking into the Earths interior
or two tectonic plates collide). These geological processes lead to a range of features such as volcanoes, cold seeps, trenches and seamounts.12 Both mineral and
biological resources can be of interest to coastal States.
Mineral Resources
Several types of mineral deposits have been identified as potentially occurring
on the continental shelves of States which may be conducive of exploitation.
Some seamounts (underwater mountains) form manganese crusts that are rich
in cobalt, and there is interest in mining these by removing the crust from the
underlying rock.13 Chimneys and large deposits containing metals and sulphides are created around hydrothermal vents.14 These deposits can contain large
amounts of zinc, copper, cobalt, silver and gold and are potentially exploitable.15
At present, mining for such resources is still in early stages as the expense of
extracting the mineral makes land based sources more economically feasible.16
Mineral exploitation of a commercial scale will have a significant impact on
ecosystems in the surrounding area. Some predicted effects include the destruction of the sites themselves, sediment disturbance that will impact on surrounding
10See Laurence P. Madin et al., The Unknown Ocean in Linda K. Glover and Shirley
A. Earle (eds.), Defying Oceans End: An Agenda for Action (Washington: Island Press,
2004), 213236.
11Eva Ramirez-Llodra et al., Deep, Diverse and Definitely Different: Unique Attributes of
the Worlds Largest Ecosystem, Biogeosciences, 7 (2010): 28512899, 2857.
12Ibid., 28572858.
13Tony Koslow, The Silent Deep: The Discovery, Ecology and Conservation of the Deep Sea
(Sydney: UNSW Press, 2007), 170.
14Peter A. Rona, Resources of the Seafloor, Science, 299 (2003): 673674.
15Mark Hannington et al., The Abundance of Seafloor Massive Sulfide Deposits, Geology,
39(12) (2011): 11551158; Koslow, Silent Deep, 171.
16Hannington et al., The Abundance of Seafloor Massive Sulfide Deposits, 1158; Rona,
Resources of the Seafloor, 674.
beyond delimitation
757
areas, waste water and potential chemical pollution.17 Koslow has suggested that
the impact of mining inactive hydrothermal vent cites would be less problematic,
but cautions that not enough is known about ecosystems associated with inactive
vents.18 Mining of gas hydrates poses some risks due to sudden gas releases and
triggering underwater landslides.19
Oil and gas exploration on continental shelves is being conducted in increasingly deep water, up to 3,000 metres of water.20 Currently most such exploration
is conducted within States EEZs, although some States have issued or offered
oil and gas exploration licences for reserves found on the outer parts of the continental shelf.21 Effects of regular oil exploration and exploitation can result in
accidental discharges which negatively impact ecosystems. Incidents such as the
explosion on the Deepwater Horizon well in the Gulf of Mexico can have longterm consequences for the environment.22 Methane hydrates located on continental slopes have high energy density and are being explored as an alternative
for traditional sources of gas.23
Biological Resources
One of the characteristics of many deep sea ecosystems is that they are not well
investigated by scientists and little is known about them.24 Nevertheless, a range
of types of ecosystems have been identified that can occur on continental margins depending on the geomorphology of the seafloor.
Seamounts, sometimes described as hotspots of marine biodiversity, can
be host to a variety of sedentary species, including cold water corals, sponges
and molluscs.25 Deep water species are typically characterised by slow growth,
low fecundity and late maturity.26 It is estimated that 935 per cent of species
17Eva Ramirez-Llodra et al., Man and the Last Great Wilderness: Human Impact on the
Deep Sea, PLoS ONE, 6(7) (2011): 12; e22588. Doi:10.1371/journal.pone.0022588.
18Koslow, Silent Deep, 172.
19Ibid., 174.
20Ramirez-Llodra et al., Man and the Last Great Wilderness, 12.
21 Clive Schofield and Robert van de Poll, Exploring the Outer Continental Shelf (Paper
prepared for the International Workshop on Further Consideration of the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, Beijing,
2630 November 2012).
22Ibid., 13.
23Koslow, Silent Deep, 174.
24Ramirez-Llodra, Deep, Diverse and Definitely Different. Refer to the table on 2856 for
the estimated area and proportion investigated of a range of deep sea habitats.
25Ibid., 2863; Koslow, Silent Deep, 125.
26Malcolm Clark Deep-sea Seamount Fisheries: A Review of Global Status and Future
Prospects, Latin American Journal of Aquatic Research, 37(3) (2009): 501512, 507.
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joanna mossop
discovered on seamounts may not be found elsewhere in the ocean.27 In addition,
many seamounts support a wide diversity of fish species, making them targets for
the fishing industry.28
Bottom trawling is the usual method of fishing for seamount based species,
and can occur at depths of 1,500 metres.29 Koslow describes the gear used in
bottom trawling:
Modern deepwater trawls are particularly large and heavy, enabling them to sink
rapidly to depth...The footrope of a net like this is between 50 and more than 100
meters long and weighs up to 4800 kilograms...Whatever is not dragged up by such
a behemoth is generally left crushed in its wake...Given the 100meter footrope
and a trawl speed of 3 knots, a single trawler will disturb approximately 10 square
kilometres of seafloor each day.30
The consequences of bottom trawling on the seafloor environment are severe.
Coral and other organisms are vulnerable to damage from fishing and slow to
recoversome corals destroyed by fishing may be centuries old.31 Comparisons
between fished and unfished seamounts have demonstrated significant differences in the diversity of invertebrates such as coral and sponges and the overall biomass.32 It is widely recognised that deep water fishing is characterised by
boom and bust patterns,33 however there are also suggestions that such fishing
may also have detrimental effects on species at depths as great as 2,500 metres
and as far as 70 kilometres from the fishing area.34
Longlines may also impact on seafloor ecosystems as the weights on the line
can be dragged through coral communities.35 A further concern is the impact on
benthic ecosystems of fishing gear that is lost or abandoned. This gear can continue to catch species on the seafloor, sometimes called ghost fishing.36
27Gregory Stone et al., Seamount Biodiversity, Exploitation and Conservation, in Glover
and Earle Defying Oceans End, 50.
28Clark, Deep-sea Seamount Fisheries.
29E. Ramirez-Llodra et al., Man and the Last Great Wilderness, 9.
30Koslow, Silent Deep, 220.
31Clark, Deep-sea Seamount Fisheries, 507; Ramirez-Llodra, Deep, Diverse and Definitely Different, 2883.
32Tony Koslow et al., Seamount Benthic Microfauna off Southern Tasmania: Community Structure and Impacts of Trawling, Marine Ecology Progress Series, 213 (2001):
111125.
33Clark, Deep-sea Seamount Fisheries, 502.
34David M. Bailey et al., Long-term Changes in Deep-water Fish Populations in the
Northeast Atlantic: a Deeper Reaching Effect of Fisheries? Proceedings of the Royal
Society of Britain 19651969, 276 (2009): 1968.
35Ramirez-Llodra et al., Deep, Diverse and Definitely Different, 2883; Ramirez-Llodra
et al., Man and the Last Great Wilderness, 10.
36Ramirez-Llodra et al., Deep, Diverse and Definitely Different, 2883.
beyond delimitation
759
A range of other types of ecosystems are found on continental margins, including chemosynthetic ecosystems. Species in these ecosystems do not rely on photo
synthesis from the sun for energy, rather they are dependent for their nutrients on
chemicals from the seafloor.37 Species with chemosynthetic qualities are found
at hydrothermal vents and cold seeps. Hydrothermal vents are found where hot
water laden with chemicals is forced from the sea floor. Here, chemosynthesis
produces ecosystems considered to be amongst the most productive on Earth.38
Cold seeps are found where slow releases of gases and chemicals emerge from the
seafloor. These seeps attract concentrations of species including bivalves, tubeworms and crustaceans.39
As with seamounts, vent and seep ecosystems can be damaged by fishing gear.
There is also significant risk associated with mineral exploration as these communities can be associated with areas of potentially valuable minerals, as explained
above. Increasingly, scientists and corporations are interested in the biological
materials found in deep sea environments due to their unusual characteristics.
Bioprospecting of such species is likely to be an activity that will increase as technology advances and where coastal States are supportive of such activity.
A Range of Coastal State Interests
Even the necessarily brief overview of resources and threats to resources possible here demonstrates that there is a range of interests that States may have
in the continental shelf, and not all of them will be compatible. As our understanding grows of the abundance and variety of biodiversity in continental shelf
ecosystems, the call for protection from human activities will expand. Conservation values and scientific interest tend to favour protecting shelf ecosystems
from fishing and mining. Bioprospecting interests will also prefer protection of
the resources. On the other hand, the potential commercial benefits from mineral
and fish exploitation will mean that States will need to make decisions about how
to balance these, often incompatible, potential uses.
Balancing Rights Above the Outer Continental Shelf
Overview
The substantive provisions of Part VI of the LOSC rely heavily on the provisions
of the Geneva Convention. According to the LOSC, the coastal States sovereign rights
to the resources of the continental shelf are exclusive and cannot be undertaken
37Madin et al., The Unknown Ocean, 223.
38Ramirez-Llodra et al., Deep, Diverse and Definitely Different, 2861.
39Ibid., 2862.
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joanna mossop
by another State without express consent,40 and a coastal State is automatically
entitled to these rights which do not depend on express proclamation.41 The
rights of the coastal State to the continental shelf do not affect the legal status of
the superjacent waters.42 Equally, the exercise of the rights of the coastal State
over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms provided for in the LOSC.43
The requirement not to infringe or unjustifiably interfere with the rights of
other users is relatively unproblematic for the areas of the continental shelf that
co-exist with the EEZ. This is because the coastal State can control resource
activities in both the shelf and the water column. Indeed, there is some overlap
between the EEZ and continental shelf regimes. Article 56(1) provides that, in
the EEZ, the coastal State has sovereign rights regarding natural resources of the
seabed and subsoil in addition to the waters above. Therefore, a coastal State
has clear legislative and enforcement authority over resource-related activities
in this area.
Once the activities take place beyond the EEZ, the situation becomes more
difficult. It is clear that the coastal States rights do not limit or reduce the rights
of other States operating on the high seas above the continental shelf. However,
there are a variety of situations that can be imagined in which the exercise of
these rights may appear, at least on the surface, incompatible. The LOSC recognises one of these situations in relation to installations or structures (referred to
here as structures) constructed to exploit oil and gas reserves on the outer continental shelf. The construction of a platform to exploit oil or gas means that other
States cannot navigate through the area where the platform is placed. Fishing
and navigating in the immediate vicinity of the platform may be incompatible
with the purpose and safety of the structure. Article 60 of the LOSC recognises
that States must have the right to construct such structures to pursue their rights
to the resources of the shelf, and they are given exclusive jurisdiction over those
structures. A number of conditions, such as notification, limitation on placement,
and maximum safety zones, ensure that the interference with navigation rights is
minimal. These rights apply to the continental shelf, with the necessary changes.44
Therefore, in this situation, the LOSC dictates how the balance of rights between
the coastal State and other States must be resolved.
40Article 77(2), LOSC; article 2(2), Geneva Convention.
41 Article 77(3), LOSC; article 2(3), Geneva Convention.
42Article 78(1), LOSC; article 3, Geneva Convention. This article was intended to ensure
that a claim to sovereign rights over the seabed did not alter the high seas rights in
the water above.
43Article 78(2), LOSC; cf. article 5(1), Geneva Convention: The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable
interference with navigation, fishing or the conservation of the living resources of the
sea, not result in any interference with fundamental oceanographic or other scientific
research carried out with the intention of open publication.
44Article 80, LOSC.
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761
Other potential scenarios are not explicitly dealt with by the LOSC. One possibility is that in future mineral resources may be retrieved, not using structures,
but simply from ships using submersibles or other remote devices. For example,
scientists undertaking research at hydrothermal vents have removed the chimneys that form around the vents and discovered that they contain valuable minerals. Any commercial exploitation of such chimneys may not be suited to large
fixed structures due to their dispersed location.
Another possibility is that exploitation of biological resources may become of
interest on the outer continental shelf. This could be through the expansion
of traditional fishing activities including bottom trawling, or also due to an interest in bioprospecting around seamounts and hydrothermal vents.45 The challenge for coastal States in these situations is balancing the freedoms of fishing in
the high seas with the sovereign interests in sedentary species. So, for example, a
bottom trawler that is targeting a non-sedentary species such as orange roughy,
will negatively impact on the benthic ecosystem by destroying coral and other
species as the net is dragged along the seabed. The coastal State must consider
whether it can prohibit such activity where the freedom of fishing applies to the
non-sedentary species.
An even more complex problem arises with bioprospecting on the outer continental shelf. One problem is to distinguish between sedentary and non-sedentary
species in the context of a complex ecosystem such as a hydrothermal vent. At
what stage of the life cycle is a particular organism at a harvestable stage?46
Many bioprospectors would be interested in an organism at an immature stage
when it may be swimming or drifting with the current and not in contact with
the sea floor.47 A further problem is how to craft regulations or permits regulating the use of sedentary species but not other species when the activity is taking
place on the outer continental shelf.
In all these cases, Part VI of the LOSC is largely silent about how to balance the
respective rights of the coastal State and other States above the outer continental
shelf. The only instruction is that contained in article 78, that the exercise of the
rights of the coastal State over the continental shelf must not infringe or result in
any unjustifiable interference with navigation and other rights and freedoms of
the LOSC. Therefore, any balancing of the rights must rely on this provision.
45Issues surrounding the exploitation of living resources on the outer continental shelf
are explored further in Joanna Mossop, Regulating Uses of Marine Biodiversity on the
Outer Continental Shelf, in Davor Vidas (ed.) Law, Technology and Science for Oceans
in Globalisation (Leiden: Martinus Nijhoff, 2010), 319338.
46See article 77(4), LOSC.
47Craig H. Allen, Protecting the Gardens of Eden: International Law Issues in Deep-Sea
Vent Resources Conservation and Management, Georgetown International Environmental Law Review, 13 (2001): 563, 624; Mossop, Protecting Marine Biodiversity on the
Continental Shelf Beyond 200 Nautical Miles, 292.
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joanna mossop
Article 78(2): Infringement or Unjustifiable Interference
The first question is whether the rights of the coastal State or the rights of the
States exercising high seas freedoms trumps the other where there is a conflict
of rights on the outer continental shelf. This is nicely illustrated by the bottom
trawling example given above. Must the coastal State accept the destruction of
the sedentary species (such as coral) that is the by-product of the bottom trawling
on the basis that the targeted species is subject to high seas freedoms? Or, can no
bottom trawling ever take place over an outer continental shelf on the basis that
it might harm sedentary species?
Article 78(2) is unclear as to the answer. Part of the difficulty is the way the
provision is phrased. In article 5(1) of the Geneva Convention, the prohibition is on
unjustifiable interference alone. The requirement not to infringe was added to
the text of the LOSC during the negotiations. It appears that this word was added
by a proposal from the Soviet Union during the negotiations, but little attention
seems to have been paid to what alteration this might have to the meaning of the
phrase.48 However, an ILC Commentary to the Geneva Convention states that
the articles on the continental shelf are subject to and within the orbit of the
paramount principle of the freedom of the seas and of the airspace above them.
No modifications of or exceptions to that principle are admissible unless expressly
provided for in the various articles.49
Under the Geneva Convention, authors did consider that some interference
with high seas rights was permissible for the coastal State to pursue its interests,
although not all agreed on the extent of such a possibility. Young, for example,
anticipated that coastal States could impose a ban on trawling over oyster beds.50
He considered that it was obvious that including sedentary fisheries in the continental shelf regime increases the potential control which a coastal State can
exert over other uses of the high seas lying above its shelf.51 In that case, Young
was considering a situation where the sedentary species themselves are undoubtedly put at risk by the activity: either because they are themselves the target of
the activity or because they are inevitably affected by the activity. One suspects
that Young would suggest that the coastal State would not be required to put up
with bottom trawling above the continental shelf. Similarly, a coastal State could
arguably prohibit scientists from taking samples from the seabed area in a way
that would destroy sedentary species.
48Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II (Leiden: Martinus Nijhoff Publishers, 1993), 905.
49Ibid., 907.
50Richard Young, Sedentary Fisheries and the Convention on the Continental Shelf,
American Journal of International Law, 55 (1961): 359, 372.
51Ibid.
beyond delimitation
763
A further question is whether the coastal State has a right to exercise jurisdiction over activities that may have an indirect impact on outer continental shelf
resources. Such activities could include: fishing activities that risk accidental harvesting of sedentary species or damage to seabed habitats; scientific research or
bioprospecting where there is a risk to the seabed environment or where there
is no clarity about the nature of the sedentary species in the area; or navigation
that risks the operation of submersible mineral exploitation activities. McDougal and Burke suggested that the Geneva Convention could not be used to allow
consequential interference with high seas freedoms, except perhaps when the
sedentary resources are of very great importance to the coastal State concerned.52
This implies that although interference should be limited, there may be instances
when the coastal State may interfere with high seas freedoms to protect shelf
resources when the circumstances demand it.
A Framework for Balancing Rights on the Outer Continental Shelf
As with many balancing exercises, it seems that the extent of the coastal State
rights will depend on the nature of the rights in the circumstances. This, of course,
is not particularly satisfactory for States and users who wish for firm guidance as
to how their respective rights are to be determined. However, coastal States will
desire some practical process for determining whether their regulation of activities on the outer continental shelf are consistent with the LOSC and the requirement not to infringe or unjustifiably interfere with high seas freedoms.
The proposed guidelines that follow are based in part on the factors identified by authors attempting to interpret the Geneva Convention provisions, and
in part on a logical application of principles in the LOSC and international law
generally.53
1.Likelihood of Interference with Shelf Resources
What is the evidence that the regulated activity is interfering, or could interfere,
with the coastal States rights over shelf resources? There should be a real possibility that a particular activity could impact on the resource before a coastal State
would have a right to regulate such an activity. This should not require evidence
of actual harm, rather a real likelihood that if the activity takes place there will
be harm to the resources. This is consistent with a precautionary approach to
environmental management.
52Myers S. McDougal and William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (New Haven: New Haven Press, 1987), 721.
53A preliminary version of these guidelines was discussed in Mossop, Regulating Uses of
Marine Biodiversity on the Outer Continental Shelf.
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joanna mossop
2.Level of Harm to the Shelf Resources
What is the nature and level of harm or interference that would result for the
shelf resources as a result of the activity to be regulated? Is the potential or actual
damage minimal, or more serious? This may require consideration not just of
the amount of physical harm, but the impact on the coastal States interest in the
resource. For example, bottom trawling has been demonstrated to have a serious
impact on the benthic ecosystem. On the other hand, the impact of longlining
appears to be more limited and could be mitigated by the way the longlining is
conducted (for example by ensuring that the line does not descend far enough to
touch the seafloor). However, if there is a highly vulnerable ecosystem at stake,
even longlining above the shelf may pose a considerable risk.
3.Relative Importance of the Interests
What is the relative importance of the interests potentially affected, and how
many will be affected by the regulation?54 This may require a comparison of the
relative economic values. For example, Attard suggested comparing the value of a
resource deposit to the cost, for example, of changing shipping routes.55 McDougal and Burke considered that, in a conflict between oil and fishing interests,
decision makers could take into account the importance of the productivity of
the area for both fisheries and mineral exploration and the importance of the
competing objectives including the contribution of the disrupted fisheries to
the economies and food supply of the States concerned.56 In a modern context, it
is also likely that conservation values will be a factor in the interest that coastal
States have in the outer continental shelf resources. Therefore, if there is an area
that a coastal State considers to have high biodiversity value because it contains
endemic species, this should be factored into the decision making.
4.Minimal Interference
Is the proposed interference with the high seas rights as minimal as possible
to achieve the coastal States objectives, or is a less restrictive option available to
a State? Is the restriction procedural in nature (for example a requirement for
conducting environmental impact assessments or reporting on activities) or is it
a substantive restriction (for example a prohibition on activities covered by the
freedoms of the high seas)? If there is a less restrictive method of achieving
the coastal States goals it is arguable that the more restrictive approach will be
unjustifiable. For example, a coastal State wishing to protect seabed ecosystems
that prohibits all bottom fishing above its outer continental shelf may be found
54See, McDougal and Burke, The Public Order of the Oceans, 721.
55David Attard, The Exclusive Economic Zone in International Law (Oxford: Clarendon
Press, 1987), 144.
56McDougal and Burke, The Public Order of the Oceans, 721.
beyond delimitation
765
to be unjustifiably interfering with the freedom of fishing, but a State that only
restricts bottom fisheries in the vicinity of vulnerable marine ecosystems may
not be. McDougal and Burke have suggested that the ability of the activities to
be managed so they co-exist should be explored.57
5.Role of International or Regional Institutions and Soft Law Instruments
Are there any guidelines from relevant international or regional organisations?
Although ultimately the issue of balancing the rights arises between a coastal
State and another State with users operating in the vicinity of the shelf, there is
a possibility that some role may be created for the problems to be discussed in a
multilateral forum. The results of discussion may simply be soft law instruments
such as a General Assembly Resolution or a decision of a regional organisation,
and the practice of other States may be reflected in those instruments. States
would be advised to consider those statements when weighing their regulatory
options.
The weighing of these factors in different contexts is likely to lead to different outcomes. So, some forms of substantial interference with high seas freedoms may be justifiable. Other forms of interference may be insignificant but yet
unjustifiable.58
Article 60 of the LOSC, dealing with structures, is an interesting example of the
balancing of interests expressly provided for by the negotiators. It is clear that
the existence of an oil platform is inconsistent with navigation or fishing in the
area taken up by the platform, but the value of the interest to the coastal State
in the oil justifies an interference with those rights. Additionally, the security of
the platform is strengthened by the establishment of a safety zone around it in
which navigation may be limited. However, the rights of the coastal State are limited. The platform may not be established where it would interfere with sea lanes
essential to international navigation, and the size of the safety zone is limited to
500 metres. So, in most circumstances the coastal State may allow platforms, but
not where essential navigational routes will be disturbed.
A similar analysis could underpin regulation for the outer continental shelf.
To take the example of bottom trawling again, there is indisputable evidence
that this practice leads to significant harm to the seafloor environment, including
sedentary species. When weighing the relative value of the interests, there are
several to be taken into account. The first is the clear right of the fishing State to
conduct fishing on the high seas, as set out in Part VII of the LOSC. Deep sea fishing is a valuable economic activity and bottom trawling is dependent on location,
as many deep sea fish species aggregate above particular seamounts.59 Therefore,
57Ibid.
58Attard, The Exclusive Economic Zone in International Law, 144.
59Clark, Deep-sea Seamount Fisheries, 507.
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joanna mossop
a prohibition on bottom trawling in a specific location may directly impact on
the fishing activity.
The second interest is the right of the coastal State in the resources of the shelf.
It is possible that there may be a competing fishing interest in the sedentary species, but more likely the interests of the coastal State will be in the conservation
value of the species, or in protecting them for future potential bioprospecting
activities. It can be difficult to weigh a clear economic value (in the fish) against
a conservation or future use interest (in the sedentary species), but the State will
have to consider this. Relevant considerations could include: the endemism of
the species found in the area (that is, are they found elsewhere?); the extent to
which other areas are protected from bottom trawling and the ease with which
the fishery can relocate.
States should also consider their obligations to conserve the marine environment. Although Part VI of the LOSC does not contain an express obligation to
conserve sedentary species,60 the Convention does contain a general obligation
to protect and preserve the marine environment.61 Also important is the requirement in article 118 on States fishing in the high seas to cooperate with other States
to conserve living resources. Other conservation obligations may also apply,
including those found in the Convention on Biological Diversity.62
The next step is to consider whether the interference with the rights of the
fishing State is as minimal as possible. As mentioned above, a coastal State that
closes its entire continental shelf to fishing may be accused of unjustifiable interference whereas targeted closures may be more acceptable. One of the problems
with targeting closures or restrictions to particular areas is that a vast majority
of continental shelf ecosystems have not been adequately sampled or studied.
A coastal State may wish to take precautionary measures until the science is
more fully understood, but this does risk challenge from other States.
Finally, where the species targeted by the fishing State is subject to conservation and management by a Regional Fisheries Management Organisation (RFMO),
it is possible that that organisation may have promulgated measures related to
bottom trawling.63 Where regulations are adopted by such organisations, and a
coastal State adopts consistent regulations, this may assist in arguing that the
restrictions are not an unjustifiable interference with high seas freedoms. This
60Compare this to article 61 which requires the conservation of the living resources of
the Exclusive Economic Zone.
61 Article 192, LOSC.
62A. Charlotte de Fontaubert, David R. Downes and Tundy S. Agardy, Biodiversity in
the Seas: Implementing the Convention on Biological Diversity in Marine and Coastal
Habitats, Georgetown International Environmental Law Review, 10 (1998): 753; Donald
K. Anton, Law for the Seas Biodiversity, Columbia Journal of Transnational Law, 36
(1997): 341.
63G. Stone et al., Seamount Biodiversity, Exploitation and Conservation, at 6064 identify a number of fisheries bodies that have relevance to seamount fishing.
beyond delimitation
767
will be particularly useful when dealing with foreign fishing vessels from States
not party to the RFMO.
Resolving Conflicts Over Balancing Rights
It is not unheard of for States to argue over the balancing of rights under the
LOSC. To date, the most difficult balancing of rights and interests has been in
the context of the rights of coastal States in the EEZ and the high seas freedoms
of other States.64 This has arisen in the context of military operations (including military exercises and surveillance) in the EEZ of other States as well as the
right to conduct hydrographic surveying in another States EEZ. Article 59 directs
states to resolve such conflicts on the basis of equity and in the light of all the
relevant circumstances, taking into account the respective importance of the
interests involved to the parties as well as to the international community as a
whole. To date States have preferred to pursue conflicts about the appropriate
interpretation of the LOSC through diplomatic means or through the exercise of
State power in support of the preferred interpretation.
It is possible that conflicts over the correct interpretation of article 78(2) may
similarly languish unresolved in a miasma of State action and diplomatic protest.
However, it is appropriate subject matter for resolution at an early stage through
the dispute resolution procedures in Part XV of the LOSC.
There are a few proactive actions that could be used to prevent conflicts before
they arise. One possibility is that a proposed regulatory approach by a coastal
State will have a limited impact on a few particularly affected States. In that situation, a bilateral negotiation may reduce any suspicions or concerns arising from
the potential interference in high seas freedoms. It may be possible for the coastal
State to offer some form of compensation for its interference in the activities of
the other State. In any event, dialogue with the affected States may reduce tension in the face of the regulation.
A second possibility is that, where activities regulated by particular international organisations are potentially affected by coastal State regulations, the
organisations could take the lead in negotiating the appropriate interference with
high seas freedoms. Therefore, if all coastal States in a region regulate activities
on their outer continental shelves in a similar way, this increases understanding of the relationship between the coastal State and others, as well as reducing
opportunities for disputes to arise. Organisations that could play this role include
regional oceans organisations, RFMOs, or the International Maritime Organisation. There may also be a role for the General Assembly to issue guidance through
the annual law of the sea resolutions or other oceans discussions in the United
Nations.
64Articles 56(3) and 58(3), LOSC.
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joanna mossop
Conclusion
In the future, as technology improves and pressures on resources increase,
the resources of the continental shelf will become increasingly important. The
resources may provide economic benefits to the coastal State through mining,
fishing and bioprospecting, but there is also evidence of the significance of the
living resources for science and conservation interests. This will pose a challenge
for governance within the Statecountries will have to decide how best to balance the (often competing) rights. However even more challenging is the prospect of balancing the rights of States to the resources of the outer continental
shelf and the rights of States operating in the high seas above the continental shelf. Where vessels fishing or undertaking other activities in the high seas
potentially impact on the resources of the continental shelf, the coastal State
may wish to pass legislation that protects the shelf resources. The LOSC instructs
coastal States not to unjustifiably interfere with high seas freedoms, but gives no
guidance on how this is to be evaluated. Determining whether the coastal States
laws amount to unjustifiable interference may be controversial, as with the balancing of State rights in the EEZ under article 58(3). States with vessels operating
in the high seas are likely to resist any intrusion on their freedoms.
This chapter has suggested five factors that States can consider to decide
whether their proposed regulation amounts to an unjustifiable interference with
high seas freedoms. These are:
1. What is the likelihood that the high seas activity will cause harm to continental shelf resources?
2. What is the level of harm to the continental shelf resources?
3. What is the relative importance of the interests of the coastal State and the
State operating on the high seas?
4. Is the interference with the high seas freedoms as minimal as possible while
protecting the continental shelf resources?
5. Have international organisations (such as the IMO, RFMOS or regional seas
organisations) issued rules or guidelines about the limits of the high seas freedoms in relation to the continental shelf resources?
A consideration of these factors is likely to provide clearer justification for any
interference in high seas freedoms, but in reality there are bound to be disputes
over this issue. It may be advisable to employ the dispute settlement provisions
of the LOSC to clarify the legal situation. Alternatively, international or regional
organisations may be able to negotiate uniform solutions to the intersection
between particular activities and rights to continental shelf resources. In any
event, it is worth States re-evaluating their domestic laws to assess whether they
can adequately protect interests in the continental shelf as they develop.
chapter Thirty-Four
Addressing the Marine Genetic Resources Issue:
Is the Debate Heading in the Wrong Direction?
David Leary and S. Kim Juniper*
Introduction
In 1996, Lyle Glowka sparked debate on whether a specific international legal
regime was required to regulate access and benefit sharing in relation to marine
genetic resources sourced from the deep sea in areas beyond national jurisdiction.1
In 2004, the United Nations General Assembly established the Ad Hoc Open-ended
Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (the
BBNJ Working Group). Examination of the status of marine genetic resources was
part of the work to be undertaken by the BBNJ Working Group.2 The work of the
BBNJ Working Group continued over the intervening seven years, culminating
in the fourth meeting of the Working Group held in New York form 31 May to
3 June 2011, which adopted recommendations to the General Assembly that a
process be initiated for the possible development of a multilateral agreement or
protocol under the United Nations Convention on the Law of the Sea (LOSC).3 The
2011 recommendations of the BBNJ Working Group may represent a significant
turning point in the debate. Outside of these diplomatic processes, there has also
been considerable discussion in the academic literature of the status of marine
*David Leary is Senior Lecturer, Faculty of Law, University of Technology, Sydney. Email:
david.leary@uts.edu.au. S. Kim Juniper is Professor, School of Earth and Ocean Sciences,
University of Victoria Canada. Email: kjuniper@uvic.ca.
1See, Lyle Glowka, The Deepest of Ironies: Marine Scientific Research, Genetic Resources
and the Area, Ocean Yearbook, 12 (1996): 154177.
2Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation
and sustainable use of marine biological diversity beyond areas of national jurisdiction,
http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm.
3United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,
entered into force 16 November 1994, 1833 UNTS 3 (LOSC).
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david leary and s. kim juniper
genetic resources in areas beyond national jurisdiction and the extent of their
regulation under existing international law.4
In this chapter we seek to challenge some of the assumptions that underlie the
BBNJ Working Group process and the academic discourse to date with respect
to marine genetic resources in areas beyond national jurisdiction and posit that
the debate on marine genetic resources is perhaps heading in the wrong direction. We will emphasize some of the myths, misconceptions and misunderstanding that have rapidly grown up around the use of marine genetic resources, and
developments in marine biotechnology. In particular we question whether policy
makers, diplomats and academics engaged in debates surrounding this issue have
a proper understanding of the realities of bioprospecting in the marine environment and whether those realities currently justify the moves towards the creation
of a specific international legal regime to deal with access and benefit sharing in
relation to marine genetic resources found in areas beyond national jurisdiction.
We begin by shedding some light on the nature and extent of bioprospecting in
the marine environment. After this we consider the limited available data on the
real or actual value of marine genetic resources used in biotechnology today, and
especially those resources sourced from areas beyond national jurisdiction,
and in the deep sea in particular. We then consider potentially game changing
new developments in the biotechnologies. We conclude by considering the implications of our findings for the ongoing debates of the BBNJ Working Group and
future negotiations on protocols or other legal instruments to address this issue.
Time for a Reality Check: The Nature and Extent of Bioprospecting in
the Marine Environment
The natural environment has long been a source of inspiration for new drugs and
other forms of biotechnology. Until relatively recently the terrestrial environment
in particular was the source of natural products that have been at the centre of
major new developments in biotechnology, including new drugs. Examples of natural products that have been used in drug development include the anti-malarial
drug quinine isolated from the bark of the Chinchona, the analgesics codeine and
morphine from Papaver somnifetum latex and antibiotics such as pencillins
and tertracyclines from fungal strains of Penicillum sp. and Streptomyces sp.5
This connection between biodiversity and biotechnology should come as no
surprise. As Cowan has commented:
4See below for citation of many of these papers.
5Tor Haug, Marine Bioprospecting: Marine invertebrates and algaeA potential source for
the discovery of novel antibiotics (Doctor of Science Thesis, University of Troms, 2004).
See also David Newman, Gordon Cragg and Kenneth Snader, The influence of natural
products on drug discovery, Natural Products Reports, 17 (2000): 215234.
addressing the marine genetic resources issue
771
Biotechnology is a natural product of biodiversity! New products and processes, the
keys to the future development of biotechnology, are as dependant on new sources of
biomaterials as on the scientific ingenuity required to discover, evaluate and develop
such resources. It must follow therefore that the greater the biodiversity; the greater
the opportunity for discoveries that may ultimately be translated into valuable
biotechnologies.6
The terrestrial environment contains far more species of plants and animals than
are presently known in the oceans, and has contributed greatly to the development of new biotechnology, and new drugs in particular. Yet there are many reasons to expect that the marine environment should represent a rich reservoir of
novel natural products, particularly those derived from animals. Covering more
than 70 per cent of the planet the oceans are home to a greater diversity of major
animal groups (phyla) than the terrestrial environment (28 marine phyla versus 11
terrestrial phyla). Areas such as coral reefs for example, are believed to contain a
broader range of animal species than the most mega-diverse rain forests on land.7
We are still a long way from fully understanding the diversity of life in our oceans,
as can be seen by the fact that approximations of the total number of marine
species (2.2 million)8 still far exceed the total number of documented marine species (approx. 240,000).9 The recently completed Census of Marine Life (CoML)
together with the World Registry of Marine Species (WoRMS), have produced
the most comprehensive inventory of known marine life ever compiled (some
30 million records catalogued as of January 2011).10 In addition to the collection and description of more than 6,000 potential new species, one of the more
important accomplishments of these two programs was to bring greater order to
the species catalogue by eliminating synonymous or redundant species names
whereby the same organisms had multiple appellations, depending on geographic
location or describing author. Another contribution of CoML was to repeatedly
demonstrate that new expeditions to the more remote areas of the ocean will
discover new species, often on a daily basis.
The growing realisation of the diversity and novelty of life in the oceans has fuelled
interest in the possibilities marine biodiversity offers for new biotechnological
6Don Cowan, The marine biosphere: a global resource for biotechnology, TIBTECH:
Trends in Biotechnology, 15 (1997): 129131.
7Marc Schumacher et al., Gold from the sea: Marine compounds as inhibitors of the
hallmarks of cancer, Biotechnology Advances, 29 (2011): 531547.
8Camila Mora and others, How many species are there on earth and in the ocean? PLoS
Biology, 9(8): e1001127. doi:10.1371/journal.pbio.1001127.
9World Register of Marine Species, World Register of Marine species, http://www
.marinespecies.org.
10The Census of Marine Life was a 10 year international multi-national collaborative
research project on marine biodiversity bringing together 2,700 scientists from 80
nations, involving 540 research expeditions. See Census of Marine Life, About the
Census, http://www.coml.org/about-census.
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david leary and s. kim juniper
applications. Despite repeated waves of enthusiasm and much early promise for
the potential of marine natural products, examples of the successful development
of commercial products are very few.11 Marine biodiversity in theory has huge
potential, but in reality realisation of that potential has been slow. In the early
1950s the first marine bioactive compounds, spongouridine and spongothymidine were isolated from the Caribbean sponge Cryptotheca crypta.12 The 1970s
saw the beginning of basic scientific research in chemistry and pharmacology of
marine natural products and directed efforts in drug development.13 However, it
has only been in the last decade that these research efforts have resulted in the
production of a first generation of drugs from the sea into clinical trials.14 It was
not until 2004 that the first drug from the sea (developed from a tropical marine
cone snail) was finally approved for sale on the market under the name Prialt.15
Prialt is used in the treatment of chronic pain associated with spinal cord injuries.16 More recently, in 2007, a second drug, the anti-tumour compound trabectedin (known as Yondelis) was approved for the treatment of soft-tissue sarcoma
in the European Union.17
A vast number of marine specimens have been collected and analysed in the
hope of discovering novel bioactive compounds for developing pharmaceuticals.
However, most of this work has tended to focus on organisms containing secondary metabolites, chemical compounds that help marine species compete for
space, protect themselves from predation, fouling and ultraviolet light, or control
host cellular activity in the case of symbioses.18 The majority of new compounds
have come from soft-bodied sessile invertebrates including Porifera (sponges),
Cnidaria (jellyfish, corals, sea anemones) and Urochordata (ascidians).19 Those
species have been primarily collected within the territorial seas and exclusive economic zones of tropical and warm water countries.20 In addition to these traditional
11J. Grant Burgess, New and emerging analytical techniques for marine biotechnology,
Current Opinion in Biotechnology, 23 (2012): 2933.
12David Leary, Marjo Vierros, Gwenalle Hamon, Salvatore Arico and Catherine Monagle,
Marine genetic resources: A review of scientific and commercial interest, Marine
Policy, 33 (2009): 183194.
13Tadeusz Molinski et ors., Drug development from marine natural products, Nature
Reviews. Drug Discovery, 8 (2009): 6985.
14Carmen Cuevas and Andrs Francesch, Development of Yondelis (trabectedin,
ET-743). A semisynthetic process solves the supply problem, Natural Products Reports,
26 (2009): 322337.
15Molinski, Drug development from marine natural products, 6985.
16Ibid. Further information on Prialt is available at Jazz Pharmaceuticals, The Prialt
difference, Jazz Pharmacueticals http://www.prialt.com/.
17Molinski, Drug development from marine natural products, 6985.
18 Bob Hunt and Amanda Vincent, Scale and Sustainability of Marine Bioprospecting for
Pharmaceuticals, Ambio, 35(2) 2006: 5764.
19Ibid.
20Ibid.
addressing the marine genetic resources issue
773
sources, there is increasing interest in cold water marine organisms of regions such
as the Arctic and Antarctica for new developments in biotechnology.21
Examples of actual commercialisation of deep-sea genetic resources, and especially those deep-sea areas beyond national jurisdiction are largely anecdotal and
the evidence is at best patchy. While some commercial products have been developed from deep-sea organisms, the actual proportion coming from areas beyond
national jurisdiction is as yet un-substantiated. In analysing what information is
available it is very important to distinguish between hard proof of products on
the market or in the development phase, and speculation about their theoretical
potential. The academic literature and policy debates are littered with enthusiastic statements about possibilities, but there is in fact very little hard proof
in the way of products on the market. To date there have been no detailed or
comprehensive studies of the full extent and scope of commercialisation. We
can, however, point to a few successful examples. One of those is the Fuelzyme
enzyme sold by Verenium Corporation.22 The Fuelzyme enzyme is a thermostable enzyme that is effective over an exceptionally wide temperature and pH
range which is useful in ethanol production.23 Other examples include the Vent
Polymerase and pfu DNA Polymerase, both isolated from hydrothermal vent bacteria, and used in applications such as DNA fingerprinting.24
However, based on our review of the limited available data, we see little evidence of systematic commercial scale development of the genetic resources of the
deep sea. Instead we see a debate where limited evidence is being confused and
conflated with the more prolific evidence of commercialisation of marine biodiversity from shallower waters. This is primarily occurring within areas of national
jurisdiction such as the territorial sea and the EEZ. Compounding this are rather
grand or broad sweeping statements in the academic and policy literature as to
the theoretical potential of marine biodiversity. It may sit uncomfortably with
many now engaged in the debate on this topic, but there is currently very little
evidence of the proverbial pot of gold said to be waiting to be discovered in the
21See for example David Leary, Bioprospecting in the Arctic, UNU-IAS Report (Yokohama:
Japan United Nations University-Institute of Advanced Studies, 2008); Dagmar Lohan
and Sam Johnston, Bioprospecting in Antarctica, UNU-IAS Report, (Yokohama: Japan
United Nations University-Institute of Advanced Studies, 2005) David Leary, Bi-polar
disorder? Is bioprospecting an emerging issue for the Arctic as well as for Antarctica?
Review of European Community and International Environmental Law, 17(1) (2008):
4155; David Leary, Bioprospecting in the Antarctic and the Arctic. Common challenges? Yearbook of Polar Law, 1 (2009): 145174.
22David Leary and others, Marine genetic resources: A review of scientific and commercial
interest, 183194.
23See Verenium Corporation Fuelzyme Alpha Amylayse, http://www.verenium.com/
products_fuelzyme.html.
24David Leary, International Law and the genetic resources of the deep sea (Leiden and
Boston: Martinus Nijhoff Publishers, 2007).
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david leary and s. kim juniper
biodiversity of the deep sea. There may well be a few specks of gold, but as yet no
hard or substantiated evidence of great riches. It appears the rhetorical or political debate does not match the hard data.
Marine Biotechnology: El Dorado or fools gold?
Complicating the debate on marine genetic resources even further is the fact that
there are also no clear or reliable data on their commercial value. As we noted
above, the debate so far has failed to make a clear distinction between the development of biotechnology from the deep sea in areas beyond national jurisdiction,
and natural products sourced from the shallower waters within areas of national
jurisdiction. This confusion worsens when one tries to put a dollar value on the
genetic resources of the deep sea in areas beyond national jurisdiction. Again
the confusion appears to have arisen because no distinction has been made
between the commercial development of the genetic resources from the deep
sea in areas beyond national jurisdiction and the much broader of field marine
biotechnology in general.
Marine biotechnology has been described as biotechnology carried out using
biological resources which have come from the marine environment rather than
(in the case of general biotechnology) from the terrestrial environment.25 While
this is a useful definition of marine biotechnology is should be noted that this
definition is really a broad label for a far more complex and diverse group of
activities. The term is not just confined to biotechnology developed from species
collected from the wild. It also includes the broad fields of aquaculture (including
the development of healthcare products for farmed fish) and new and improved
breeds of farmed fish.26 Other areas covered by the term marine biotechnology
include: the production of novel products from marine raw materials such as
collagens and chitin and related compounds from fish and shellfish waste; carotenoids, pigments and flavourings; compounds derived from marine algae such
as alginates and carageenans; and nutritional and dietary supplements such as
omega 3 and other fatty acids from fish oils.27
The term marine biotechnology therefore can mean many things beyond the
development of new drugs from the sea. It encompasses a huge range of activities
across all of ocean space and thus far has had very little to do with the genetic
resources of the deep sea beyond national jurisdiction, or their exploitation.
A general lack of understanding of the marine biotechnology sector offers at
least a partial explanation for how the pot of gold mentality has come to domi-
25Burgess, New and emerging analytical techniques for marine biotechnology, 2933.
26European Commission, Background Paper No 10 on Marine Biotechnology, http://www
.emam.mdn.gov.pt/SEC(2006)_689%20_10.pdf.
27Ibid.
addressing the marine genetic resources issue
775
nate this debate, especially the discussion within the Ad hoc process. Statistics from
the entire field of biotechnology or marine biotechnology are often cited out of
context to support the promise of deep-sea genetic resources. The only detailed
attempt to look at potential value of which we are aware contains useful data on
values of specific products, but no overall value. For example, in 2005 estimated
product sales for one herpes remedy developed from a (likely shallow water)
marine sponge were estimated at between US$50 million and US$100 million.28
Likewise an enzyme developed from a deep-sea hydrothermal vent source was
estimated to have sales of US$150 million per year.29 What we dont know is
if these were based on natural products sourced from areas within or beyond
national jurisdiction or not? Significantly, we know little about the processes and
lengths of time involved in developing these products or the capital investment
required to bring the products to market. An up to date understanding of how
these products are developed is crucial because, as we will outline below, the way
in which biotechnology is being developed is rapidly changing.
Such figures may or may not be indicative of what could be expected in the
future from biotechnology developed from the biodiversity of the deep sea in areas
beyond national jurisdiction. Crucially, we, and everyone else involved in this
debate, and especially policy makers, diplomats and academics currently have no
understanding of the real commercial value (if any). Based on available current
data we would argue that there is little upon which to base a credible valuation
of the marine genetic resources from areas beyond national jurisdiction. In our
review of the literature we can find no detailed studies that directly address this
point. In fact, one recent study acknowledges explicitly that the global value of
marine biodiversity as a source of novel marine natural products has never been
studied.30 This conclusion further validates our own review of published sources.
The study by Erwin Lpez-Legentil and Shuhmann did undertake an analysis
of the market value of marine species for pharmaceutical use and the market
value of marine biodiversity as a source of novel oncology drugs.31 However,
their conclusions were based on a theoretical calculation of potential rather than
drawn from known examples of actual products on the market. We therefore suggest that their study is not particularly relevant to current debates. Significantly,
it sheds no objective light on the potential of marine genetic resources from areas
beyond national jurisdiction and the deep sea in particular.
28Leary, Marine genetic resources: A review of scientific and commercial interest, 183
194.
29Ibid.
30Patrick Erwin, Susanna Lpez-Legentil and Peter Shuhmann, The pharmaceutical
value of marine biodiversity for anti-cancer drug discovery, Ecological Economics, 70
(2010): 445451.
31Ibid.
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david leary and s. kim juniper
A final complicating factor is that there are widely differing views as to the
potential scope of the future regime. There has often been rather loose usage of
precise legal terminology in this debate. Is the future regime intended to only
apply to the Area defined in article 1 of the LOSC as the sea-bed and ocean
floor and subsoil thereof, beyond the limits of national jurisdiction? Or will the
future legal regime apply to the water column above which is typically regarded
as the high seas? From our observations of the debate over recent years it appears
that some diplomats, policy makers and scholars do not understand the fundamental difference between these two discrete jurisdictional zones. This inability
to appreciate that difference further conflates and confuses consideration of the
value of marine genetic resources from areas beyond national jurisdiction and
the deep sea in particular.
Simply stated, current data do not permit an objective evaluation of the economic potential of marine genetic resources from the deep sea in areas beyond
national jurisdiction, and they certainly do not support the existence of any new
El Dorado offering huge wealth that we hear being touted in current debates.
We would therefore suggest that this threshold question is perhaps central to
answering the initial question posed by Lyle Glowka, about the need, or not, for
a new legal regime.32 It is very surprising that no detailed study has attempted to
adequately answer this question. Such a study is long overdue and should address
the following key questions:
(1) How many products are there on the market that have been developed from
deep-sea genetic resources?
(2) What products are currently in the research and development stage and how
long is it before they can be expected to be brought to market?
(3)Which of these products were obtained from the deep sea in areas beyond
national jurisdiction?
(4) What was the full cost of research and development and bringing these products to market?
(5) How do the profits made on the sale of these products relate to the costs
involved in their development and marketing?
On a related point we suggest that such a study should also consider the nonmonetary benefits that might arise from the development of these products.
A useful guide to possible non-monetary benefits that could be assessed is contained in the Annex to the Nagoya Protocol on Access to Genetic Resources and the
32See Glowka, The Deepest of Ironies: Marine Scientific Research, Genetic Resources
and the Area, 154177.
addressing the marine genetic resources issue
777
Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity.33
Changing Patterns of Scientific Research and Biotechnology
Research and Development
One of the other quite remarkable features of this debate has been a general
absence of any consideration by policy makers of how biotechnology research,
development and commercialisation are actually carried out. Throughout these
diplomatic discussions and debates in the academic literature, it has been assumed
that bioprospecting for marine genetic resources has followed a predictable and
linear process whereby marine scientists collect samples in the field, return them
to their laboratories where they are systematically screened for possible leads.
Subsequently, through a process of trial and error, new drugs and (other products) are developed over a period of time. In reality, much of the work involved in
discovering and describing new organisms is carried out in the course of basic scientific research with little, if any, connection to any follow-up screening and drug
or natural product development. Most recently, revolutionary technologies such
as gene sequencing and database mining driven by the power of bioinformatics,
are transforming the way in which biotech research and development (and new
drugs in particular) are undertaken. As one recent publication has observed:
In the past decade, large scale projects have generated a vast amount of molecular
biological data that has been deposited and organized into different Molecular Biology Databases (MBDBs). These MBDBs include information on genomics proteomics,
transcriptomics, interactomics and metabolomics among many others. More than
1000 different MBDBs are publicly or commercially available and have become an
essential element of every day scientific activity, making it possible to relate data to
a specific biological problem and to assist the scientist to guide their research.34
In this new era of collective intelligence35 the use of these databases in mainstream science and biotechnology research development means that biotechnology companies now have access to a vast wealth of useful scientific data. To
fully exploit the potential of these database resources, database mining and new
33Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization to the Convention on Biological Diversity, opened
for signature 29 October 2010, not yet in force, on line at http://www.cbd.int/abs/doc/
protocol/nagoya-protocol-en.pdf.
34Ana Gutierrez-Preciado, Mariana Peimbert and Enrique Merino, Genome Sequence
Databases: Types of Data and Bioinformatic Tools, in Moselio Schaechter (ed.)
Encyclopaedia of Microbiology (Atlanta: Elsevier) 211236.
35For an exploration of the concept of collective intelligence see Eric Bonabeau, Decisions
2.0: The Power of Collective Intelligence, MIT Sloan Management Review, 50(2) (2009):
4552.
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david leary and s. kim juniper
knowledge discovery algorithms and search engines are becoming of greater
importance.36 Over time this will make discovery of novel biomolecules less reliant on physical samples of marine organisms. This recent transformation of the
development process (usually without any involvement of the marine scientists
who sample marine biodiversity) holds significant implications as to what, when
and who should be regulated under any future international treaty or other legal
instrument. If the key to new biotechnology product development in the future
is to be information contained in databases accessible anywhere in the world,
should it be access to information that is regulated or access to biodiversity? Do
we regulate marine scientists who sample or computer technicians who provide
IT support? These are fundamental questions that need to be explored.
A perhaps more startling and revolutionary development which has not been
raised in any of the debate on marine genetic resources has been the emergence
of the new field of synthetic biology. Synthetic biology is a totally new area of biological research and involves fundamentally different techniques from those used
in creating genetically modified organisms (GMOs). In simple terms, GMOs are
produced by transferring individual genes from one species to another. In contrast, synthetic biology comprises the purposeful creation of totally new organisms piece by piece.37 It has been described as the engineering of biology: the
synthesis of complex, biologically-based (or inspired) systems which display functions that do not exist in nature. This engineering perspective may be applied at
all levels of the hierarchy of biological structuresfrom individual molecules to
whole cells, tissues and organisms.38 Its foundation lies in the new field of synthetic genomics, which involves the creation of either new or already existing
individual genes, chromosomes and even whole genomes through the assembly
of DNA molecules.39 The field envisions not just the redesign of existing organisms, but even the de novo design and programming of genes and organisms.40
While there are a number of different approaches to synthetic biology, one of
the dominant schools of thought within the discipline borrows heavily from the
engineering concept of modularity. In engineering terms, a module is defined as
a functional unit that is capable of maintaining its intrinsic properties irrespec36Preciado, Peimbert and Merino, Genome Sequence Databases: Types of Data and
Bioinformatic Tools, 211236.
37Gregory Mandel, Regulating Emerging Technologies, Temple University Beasley School
of Law Legal Studies Research Paper Series No 200918 (Philadelphia: Temple University Beasley School of Law, 2009).
38European Commission, Synthetic Biology: Applying Engineering to Biology, Report of a
NEST High-Level Expert Group, (EC: Brussels, 2005).
39Gabrielle Samuel, Michael Selgelid and Ian Kerridge, Managing the unimaginable. Regulatory responses to the challenges posed by synthetic biology and synthetic genomics, EMBO Reports, 10(1) (2009): 7.
40Andrew Torrance, Synthesizing Law for Synthetic Biology, Minnesota Journal of Law,
Science & Technology, 11(2) (2010): 629.
addressing the marine genetic resources issue
779
tive of what it is connected to.41 Adopting such an approach, all complex entities
can be broken down into their component functional modules.
Transferred to the field of biology, a key question becomes whether biological
systems are actually composed of functional modules or for analysis purposes
can be considered as such.42 If biologically complex organisms can be broken
down into their constituent modules, then perhaps they can be reassembled as
totally novel biological structures and ultimately life forms. Such an approach
not only makes biological complexity easier to deal with, but also makes these
components more similar to software code which is modular, standardised and
reusable.43 This also explains why the discussion of synthetic biology is often
replete with references to analogies to computer programming.
The potential applications of synthetic biology are only just beginning to be
understood, but it is already clear the field will have a profound impact on the
future of biotechnology. Most dramatically, the revolutionary potential of synthetic biology was demonstrated by the announcement by researchers at the
J. Craig Venter Institute in May 2010 of the successful construction of the first
self-replicating, synthetic bacterial cell. Researchers stated that they had synthesised the 1.08 million base pair chromosome of a modified Mycoplasma mycoides
genome and that this was the proof of principle that genomes can be designed
in silico (that is, in the computer), chemically produced in the laboratory and
transplanted into a recipient cell to produce a new self-replicating cell controlled
only by the synthetic genome.44
The science of synthetic biology is gradually being incorporated into mainstream research and commercial development of biotechnology. Key areas of interest to-date include the development of new biological production techniques for
existing or novel biological materials and chemicals, including food ingredients
and biofuels and new and improved diagnostics, drugs and vaccines.45
The near future of synthetic biology will continue to involve assembly of
known genes that code for known enzymes, biopolymers and secondary metabolites. However, experimentation with modified or novel gene sequences to produce new products represents a natural next step, to a point where synthetic
biology could begin to replace samples from the wild as a source of discoveries.
41Jane Calvert, The Commodification of Emergence: Systems Biology, Synthetic Biology
and Intellectual Property, Biosciences, 3 (2008): 383398.
42Ibid.
43Ibid.
44J. Craig Venter Institute, Press Release-First Self Replicating Synthetic Biological Cell
http://www.jcvi.org/cms/press/press-releases/full-text/article/first-self-replicating-synthetic-bacterial-cell-constructed-by-j-craig-venter-institute-researcher/. See also Daniel Gibson et al., Creation of a Bacterial Cell Controlled by a Chemically Synthesized
Genome, Science, 329 (5987) (2010): 5256.
45United Kingdom Parliamentary Office of Science and Technology, Postnote: Synthetic
Biology, http://www. parliament.uk/documents/post/postpn298.pdf.
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david leary and s. kim juniper
This could eventually result in the biotechnology of the future being less and less
dependent on biodiversity, rendering the entire debate we are currently engaged
in obsolete and effectively pointless.
The Ad Hoc Open-ended Informal Working Group Process and a
Future Legal Instrument
When it was established in 2004, the BBNJ Working Group was tasked with studying issues relating to the conservation and sustainable use of marine biological
diversity beyond national jurisdiction and in particular:
(a) to survey the past and present activities of the United Nations and other relevant
international organisations with regard to the conservation and sustainable use
of marine biological diversity beyond areas of national jurisdiction;
(b) to examine the scientific, technical, economic, legal, environmental, socio-economic and other aspects of these issues;
(c) to identify key issues and questions where more detailed background studies
would facilitate consideration by States of these issues;
(d) to indicate, where appropriate, possible options and approaches to promote
international cooperation and coordination for the conservation and sustainable
use of marine biological diversity beyond areas of national jurisdiction.46
Curiously, the original terms of reference of the BBNJ Working Group made no
reference whatsoever to the question of the status of marine genetic resources.
However, all parties to the debates before the UN General Assembly in relation to the issue were fully aware that the status of marine genetic resources
was a key issue at the heart of the consideration of these issues by the BBNJ
Working Group. Accordingly, throughout the subsequent meetings of the
BBNJ Working Group held in 2006, 2008, 2010 and 2011, the genetic resources
issue became a core and perhaps the most contentious issue at the centre of the
work of the BBNJ Working Group.
Most of the debate so far relating to marine genetic resources has been whether
or not these resources fell within the common heritage of mankind which was at
the centre of Part XI of the LOSC. A wide divergence of views on the relevance
of the common heritage of mankind was evident in the debates before the BBNJ
Working Group and the UN General Assembly. Perhaps the best summary of that
divergence of views is contained in the report of the Working Group submitted to
the UN General Assembly following its meeting in 2011 where it noted:
Delegations recalled that the United Nations Convention of the Law of the Sea provided the legal framework for all activities in the oceans and seas, including with
respect to marine genetic resources beyond areas of national jurisdiction. Several delegations stressed that unregulated access to genetic resources in the Area, which they
46UN General Assembly Resolution 59/24, paragraph 73.
addressing the marine genetic resources issue
781
considered as the common heritage of mankind, and their exclusive exploitation by
a few had serious global economic and social implications. Several delegations noted
that two different regimes apply to the high seas and the Area, respectively. They also
observed that, according to General Assembly Resolution 2749 (XXV) and Part XI of
the Convention, which they considered part of customary international law, the area
and its resources were the common heritage of mankind.
Those delegations emphasised that the common heritage of mankind, including
the fair and equitable sharing of benefits, applied to the biological resources of the
Area. In this respect, they recognised the importance of the responsibilities entrusted
to the International Seabed Authority regarding marine scientific research and the
protection of the marine environment.
Other delegations pointed out that the principle of the common heritage of mankind only applied to mineral resources in the Area. They were of the view that living
resources in the Area were regulated under the high seas regime as set out in Part
VII of the Convention.
Several delegations recalled that the overall goal of the international community
should be the conservation and sustainable use of marine biodiversity beyond areas
of national jurisdiction. They underlined that the first come, first served approach
existing on the high seas was counterproductive and undermined sustainability. The
view was also expressed that a link existed between the common heritage of mankind
and the conservation and preservation of the marine environment. In that regard, the
common heritage of mankind was not solely about benefit sharing, but just as much
about conservation and preservation. Addressing all issues as a package deal that
would cover measures for both the preservation and conservation of marine biodiversity, including marine protected areas, and the management of marine genetic
resources on the seabed, including aspects relating to benefit sharing thereof, was
thus proposed.
It was observed that there had not been much discussion on the regime applicable
to marine genetic resources on the high seas. It was suggested that if there was agreement that the high seas regime applied to marine genetic resources on the high seas,
some common ground could be found in relation to the relevant legal framework for
their conservation and sustainable use.47
This diversity in approaches to the common heritage question is also evident in
the academic literature. As noted in a recent publication,48 it is possible to discern four broad approaches to questions of the relevance of the common heritage
of mankind to this debate: (1) those authors who maintain that marine genetic
resources in areas beyond national jurisdiction are covered by the common heritage of mankind;49 (2) those who acknowledge that they fall outside the common
47Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues
relating to the conservation and sustainable use of marine biological diversity beyond
areas of national jurisdiction and Co-Chairs summary of discussions, UN Doc A/66/119,
at paras. 1519.
48See David Leary, Moving the Marine Genetic Resources Debate Forward: Some
Reflections, The International Journal of Marine and Coastal Law, 27(2) (2012): 435
448.
49See Alex Oude Elferink, The Regime of the Area: Delineating the Scope of Application
of the Common Heritage Principles and Freedom of the High Seas, The International
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david leary and s. kim juniper
heritage of mankind, but advocate that they should be brought with the
common heritage of mankind;50 (3) those who maintain that freedom of the high
seas is the relevant principle and that therefore they are free to all who want to
access and use them;51 and (4) a fourth group of authors who acknowledge that
Journal of Marine and Coastal Law, 22(1) (2007): 14317; Yoshifumi Tanaka, Reflections
on the Conservation and Sustainable Use of Genetic Resources in the Deep Seabed
Beyond the Limits of National Jurisdiction, Ocean Development and International
Law, 39(2) (2008): 129149; Julien Rochette and Raphal Bille, Governance of Marine
Biodiversity Beyond National Jurisdictions: Issues and Perspectives. Report of the
International Seminar Towards a New Governance of High Seas Biodiversity, Ocean
& Coastal Management, 51 (2008): 779781; Charles Lawson and Susan Downing, Its
Patently AbsurdBenefit Sharing Genetic Resources from the Sea Under UNCLOS, the
CBD and TRIPs, Journal of International Wildlife Law and Policy, 5 (2002): 211233;
and Frida Pfirter, The Management of Seabed Living Resources in The Area Under
UNCLOS, Revista Electronica de Estudios Internacionales, 11 (2006): 129.
50See Louise de La Fayette, A New Regime for the Conservation and Sustainable Use of
Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction,
The International Journal of Marine and Coastal Law, 24 (2009): 221280; Tullio Scovazzi,
Mining Protection of the Environment, Scientific Research and Bioprospecting: Some
Considerations on the Role of the International Sea-Bed Authority, International
Journal of Marine and Coastal Law, 19 (2004): 383410; and Nele Matz, Marine
Biological Resources: Some Reflections on Concepts for the Protection and Sustainable
Use of Biological Resources in the Deep Sea, Non-State Actors and International Law,
2 (2002): 279300.
51See Glowka, The Deepest of Ironies: Marine Scientific Research, Genetic Resources
and the Area, 154177; Lyle Glowka, Genetic Resources, Marine Scientific Research and
the International Seabed Area, Review of European Community and International
Environmental Law, 8(1) (1999): 58 66; Craig Allen, Protecting the Oceanic Gardens
of Eden: International Law Issues in Deep Sea Vent Resources Conservation and
Management, Georgetown International Environmental Law Review, 13 (2001): 563660;
David Leary, Bioprospecting and the Genetic Resources of Hydrothermal Vents on the
High Seas: What is the Existing Legal Position, Where are we Heading and What are our
Options? Macquarie Journal of International and Comparative Environmental Law, 1(2):
137178; David Leary, International Law and the Genetic Resources of the Deep Sea (Leiden
and Boston: Martinus Nijhoff Publishers, 2007); Stephanie Bonney, Bioprospecting,
Scientific Research and Deep Sea Resources in Areas Beyond National Jurisdiction: A
Critical Legal Analysis, New Zealand Journal of Environmental Law, 41 (2006): 4191;
Richard McLaughlin, Settling Trade-Related Disputes Over the Protection of Marine
Living Resources: UNCLOS or the WTO? The Georgetown International Environmental
Law Review, 10 (1997): 2996; Friederike Lehman, The Legal Status of Genetic
Resources of the Deep Seabed, New Zealand Journal of Environmental Law, 22 (2007):
3366; Lawson and Downing, Its Patently Absurd-Benefit Sharing Genetic Resources
from the Sea Under UNCLOS, the CBD and TRIPS, 211233; Julia Jabour-Green and
Dianne Nicol, Bioprospecting in Areas Outside National Jurisdiction: Antarctica
and the Southern Ocean, Melbourne Journal of International Law, 4 (2003): 76111.
addressing the marine genetic resources issue
783
there is uncertainty on this point and do not express a clear conclusion on the
question either way.52
Despite the significant difference of opinion in both diplomatic and academic
circles as to the common heritage status of marine genetic resources in areas
beyond national jurisdiction or otherwise, at its meeting held from 31 May to
3 June 2011, the BBNJ Working Group adopted the following recommendations
to the UN General Assembly:
(a) a process be initiated by the General Assembly, with a view to ensuring that the
legal framework for the conservation and sustainable use of marine biodiversity
in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing
instruments and the possible development of a multilateral agreement under
United Nations Convention on the Law of the Sea;
(b) this process would address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, in particular, together and as a
whole, marine genetic resources, including questions on the sharing of benefits,
measures such as area-based management tools, including marine-protected
areas and environmental impact assessments, capacity-building and the transfer
of marine technology;
(c) this process would take place: (I) in the existing Working Group; and (II) in
the format of intercessional workshops, aimed at improving understanding
of the issues and clarifying key questions as an input to the work of the Working
Group;
(d) the mandate of the Working Group be reviewed and, as appropriate, amended
with a view to undertaking the tasks entrusted by the present recommendations;
(e) the Secretary-General be requested to convene a meeting of the Working
Group in 2012 to make progress on all issues under examination within the
Working Group and to provide recommendations to the General Assembly at
its sixty-seventh session.53
52See Don Anton, Law for the Seas Biological Diversity, Columbia Journal of Transnational
Law, 36 (1997): 341371; Tha Lowry, Protecting the Mysteries of the Deep: Conserving
Biodiversity in Marine Areas Beyond National Jurisdiction, Dalhousie Journal of Legal
Studies, 16 (2007): 113134; Charlotte Salpin and Valentina Germani, Patenting of
Research Results Related to Genetic Resources from Areas Beyond National Jurisdiction:
The Crossroad of the Law of the Sea and Intellectual Property Law, Review of European
Community & International Environmental Law, 16(1) (2007): 1223; Kirsten Zewers,
Bright Future for Marine Genetic Resources, Bleak Future for Settlement of Ownership
Rights: Reflections of United Nations Law of the Sea Consultative Process on Marine
Genetic Resources, Loyola University Chicago International Law Review, 5(2) (2007):
151176; Peter Prows, Tough Love: The Dramatic Birth and Looming Demise of UNCLOS
Property Law (and What Is to Be Done About It), Texas International Law Journal, 42
(2007): 241309; Matthew Rimmer, The Sorcerer II Expeditions: Intellectual Property
and Biodiversity, Macquarie Journal of International and Comparative Environmental
Law, 6 (2009): 147220.
53Recommendations of the Ad hoc Open-ended Informal Working Group to study issues
relating to the conservation and sustainable use of marine biological diversity beyond
areas of national jurisdiction. Annex. II. Letter dated 30 June 2011 from the Co-Chairs
784
david leary and s. kim juniper
Quite apart from the discussions on whether the common heritage of mankind
model is an appropriate response to the marine genetic resources issue, a range
of other possible models for responding to this question have been put forward.
In contrast to the common heritage approach (and by implication its response
centring on an enhanced role for the International Seabed Authority) others
have argued that freedom of the high seas should prevail and that no regulatory
response is required at all. It should be stressed at the outset this is an equally
valid response. More recently, a third approach, modelled on the International
Treaty on Plant Genetic Resources for Food and Agriculture54 has gained attention.
While initially appealing, this latter model does have a number of issues that
would need to be resolved.55 A range of other less well-developed proposals have
also been put forward over the last decade including: a further protocol to the
United Nations Convention on Biological Diversity;56 an implementing agreement
for a system of patents for microorganisms linked to requirements for disclosure
under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure;57 self-regulation of the scientific
community through codes of conduct; proposals for creation of new mechanisms
or entities such as a global commons trust fund for marine genetic resources et
cetera. Some, perhaps unrealistically, have advocated outlawing bioprospecting
altogether. Such an interdiction would have the unintended effect of severely
limiting all field-based marine scientific research since, as described above, field
work supporting basic research is often part of an undirected process that later
feeds into the bioprospecting pipeline.
The desire to examine options for future regulation is of course understandable. On one level the consideration of models outside the common heritage of
mankind approach can be considered as significant progress. While that progress
is worth noting, the real question to ask is, are we really progressing when (a) we
still have no clear understanding of whether the level of actual (as opposed to
hypothetical) commercial interest in marine biotechnology justifies regulation in
the first place; (b) those involved in the debate have no clear understanding of
whether the regime they are negotiating will apply just to the Area or the entire
of the Ad Hoc Open-ended Informal Working Group to the President of the General
Assembly, UN Doc A/66/119, page 2.
54International Treaty on Plant Genetic Resources for Food and Agriculture, opened
for signature 3 November 2001, entered into force 29 June 2004. Text available at
http//:www.fao.org/ag/cgrfa.
55For a detailed examination of some of these issues, see Leary, Moving the Marine
Genetic Resources Debate Forward: Some Reflections.
56Convention on Biological Diversity, opened for signature 5 June 1992, entered into force
29 December 1993, 1760 UNTS 79.
57Budapest Treaty on the International Recognition of the Deposit of Microorganisms for
the Purposes of Patent Procedure, opened for signature 28 April 1977, entered into force
19 August 1980. Text available http//:www.wipo.int/wipolex/en/wipo_treaties/details
.jsp?treaty_id=7.
addressing the marine genetic resources issue
785
water column of the high seas; and (c) perhaps most importantly whether policy
makers and diplomats involved in the negotiations really understand how new
biotechnology products are developed today, and will be developed in the near
future, as a result of the rapidly evolving fields of omics (genomics, proteomics,
lipidomics, etc.), bioinformatics and synthetic biology.
Simply put, before we go on to consider possible options for regulation we
need to understand if there really is something to regulate and how it should be
done. If we dont then we may end up spending more years on a rather pointless
round of diplomatic negotiations to create a white elephant treaty that may only
serve to slow the pace of scientific discovery.
Conclusion
While diplomats, policy makers and academics have been focussed on debates
about the common heritage of mankind status of marine genetic resources, and
more recently have moved on to consider other options for regulation, the initial threshold question raised by Lyle Glowka has not been addressed. A form of
collective gold fever seems to have taken hold in the international community
and in academia. Many believe that there is a veritable biotechnological pot of
gold waiting to be found at the bottom of the deep sea in areas beyond national
jurisdiction. This is what has fuelled debates on the form of potential regulation
of access and benefit sharing in the deep sea beyond national jurisdiction. Such
inflated expectations of the profits have re-opened the familiar divisions between
North and South that characterised the Law of the Sea negotiations in the 1960s,
1970s and 1980s and parties have retreated to their traditional trench warfare
positions surrounding the common heritage of mankind.
In the intervening decade and a half little light has been shed on the fundamental threshold question: is the actual level of commercialisation of the genetic
resources of the deep sea in areas beyond national jurisdiction sufficient to justify
the creation of a specific international legal regime or regulatory mechanism or
not? One only needs to recall the so far unrealized potential of deep-sea manganese nodules to appreciate how gold fever can lead to the creation of marine
resource regulatory regimes far ahead of any real world requirement.
In the interim, technology revolutions in biological science and biotechnology
are fundamentally transforming the way in which biotechnology is being developed and commercialised.
We conclude that current debates in relation to the marine genetic resources
question are headed in the wrong direction. We need to return to the starting
point and consider what is the real as opposed to wished for level of commercial
interest and commercialisation of the marine genetic resources of the deep sea
beyond national jurisdiction. We may find on proper analysis that there is in fact
no need for regulation. The studies we propose in this paper therefore should be
given urgent priority, as indeed they should have been 16 years ago when Lyle
Glowka first alerted the international community to the issue.
index
Ad Hoc Open Informal Working
Group18, 734, 750, 769, 780, 781
n. 47, 783 n. 53
Agreement on the Application of Sanitary
and Phytosanitary Measures477, 499
Agreement on Port State Measures to
Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing
434, 440 n. 36, 442
Alaska Boundary Tribunal89
Anglo-French Arbitration93, 9697,
304305, 309
Antarctica508, 510511, 515517, 520,
528, 530, 676, 773
Antarctic Treaty System
Antarctic Treaty507, 511512,
514517, 519520, 550, 560562,
568, 574, 669, 675676, 741
Antarctic Treaty Consultative Meeting
512, 550
Commission for the Conservation
of Antarctic Marine Living Resources
568, 736 n. 27
Antigua Convention436437
Archipelagic
Baselines (see also Baselines)86, 90,
99, 209, 233 n. 59, 611, 612
State90, 99, 262, 329 n. 6, 611612
Waters4, 79, 90, 329 n. 6, 350, 358,
423, 428429
Arctic14, 74, 81, 108, 121125, 134,
520, 575576, 578581, 588590,
593595, 597598, 600603, 741, 773
Arctic Waters Pollution Prevention Act
576 n. 7, 578, 581
Areas Beyond National Jurisdiction13,
1718, 392 n. 16, 404, 485, 488, 525526,
532, 534535, 540541, 543546, 548,
559 n. 61, 566, 729731, 742744,
746748, 750, 769770, 773776,
780781, 783, 785
Articles on State Responsibility470,
536539, 545546
ASEAN
Regional Forum202, 236, 265
Australia13, 141, 206 n. 15, 207, 212,
215216, 249, 252, 264265, 316 n. 112,
339 n. 33, 367, 455456, 459 n. 54,
464, 474, 497, 490, 520, 525535,
538539, 548, 560, 570, 583587,
680, 737, 754
Baltic and International Maritime
Council580 n. 23
Barents Sea1415, 136, 465, 589606
Brunei7, 217218, 221, 226 n. 5, 228,
230, 243, 251, 259260
Baselines
Archipelagic86, 90, 99, 209, 233
n. 59, 611, 612
Normal86, 108, 610
Straight165, 204, 611
Basepoints4, 8587, 93, 101, 214
Biodiversity15, 1718, 220, 431, 463,
485, 496, 552554, 564 n. 91, 593595,
599601, 660, 706, 717, 724, 726, 734,
788
index
739, 742744, 748, 750, 759, 764,
770771, 774775, 778, 780
Biotechnology18, 500, 770771,
773775, 777780, 785
Bluefin12, 473483, 485503
Border57, 9596, 129130, 147, 156, 158
n. 76, 159160, 163, 170 n. 138, 220, 240,
243, 392 n. 18, 599, 601, 603, 619
Bosnia and Herzegovina56, 19, 145,
146147, 155, 159164, 166173, 462
n. 64
Boundary2, 8, 39, 42, 82, 8586, 9597
102, 104, 106, 108, 113115, 131132,
134136, 139140, 142, 149152, 154,
156, 161162, 171, 186, 195, 204, 206207,
208 n. 22, 209, 212, 214, 217218,
230232, 240, 270 n. 9, 287, 290292,
294, 301302, 304 n. 44, 305306, 318,
320321, 323, 486, 513514, 517, 549,
570 n. 123, 748
Canada14, 19, 74, 86 n. 29, 89, 339 n. 34,
459 n. 54, 575583, 585, 587, 686, 747
Canada-United States Arctic Policy
Forum581
Canadian Arctic archipelago575576,
579
China
Chinese Academy of Social Sciences
238
Declaration of the Government of PRC
on Territorial Sea244
Law on Territorial Sea and Contiguous
Zone245, 289 n. 16
Peoples Republic of43, 261, 263, 297
Republic of China
(see Taiwan)
Climate change
Mitigation15, 16, 521, 653657,
660663, 665, 666, 667, 669671,
673, 675676
Coastal State14, 6, 15, 1718, 39,
5156, 5863, 6675, 82, 8586, 88, 91,
101, 108, 112117, 124, 143, 149 n. 26, 168,
175179, 181182, 188, 192195, 204, 209,
218, 221, 227, 235, 238, 263, 290292,
297299, 301 n. 23, 304305, 307308,
312, 314317, 322, 329334, 338339,
342347, 350351, 354, 358359,
365, 368371, 393, 395396, 398401,
407408, 414, 417421, 423424,
426429, 432, 438439, 441442,
445446, 468 n. 91, 476, 482, 483 n. 59,
484486, 488, 558562, 576, 578,
580582, 588, 610614, 616619,
620 n. 27, 621, 630, 637, 650, 667,
735738, 740741, 753756, 759768
Commission on the Limits of the
Continental Shelf (CLCS)85, 221, 259,
327, 560 n. 67, 561, 613, 753
Conservation burden11, 407409,
417419, 422430
Contiguous Zone34, 52, 56, 60 n. 27,
79, 85, 9091, 112, 245247, 328, 333,
335, 338, 340, 343344, 346, 368369,
388, 401, 610, 612, 614616, 618
Continental Shelf25, 89, 15, 18, 5254,
5859, 6572, 76, 79, 82, 8485, 9093,
95, 97, 99, 102, 104, 106, 113116, 122,
124, 131 n. 12, 132, 134, 139140, 145,
158159, 178, 182183, 185, 204207,
209, 212218, 225, 228230, 234235,
246247, 256, 259261, 263, 289292,
297318, 320324, 327328, 331,
335337, 362, 388, 399, 404, 508, 516,
530, 558560, 561 n. 73, 610, 612619,
621622, 625, 697, 735, 753757,
759766, 768, 713, 745, 746 n. 73,
766
Continental Shelf Convention4, 54, 58,
66, 70, 72, 91 n. 46, 93, 304 n. 41
Convention on Biological Diversity12,
44 n. 63, 477, 488, 495, 522, 529, 552,
591, 659, 668 nn. 8990, 681 n. 11,
784
Convention on International Trade in
Endangered Species of Wild Fauna and
Flora489
Convention for the Conservation of
Antarctic Marine Living Resources
460, 512, 563, 568, 737
Convention for the Conservation of the
Southern Bluefin Tuna455, 486,
516517, 689
Convention for the Suppression of
Unlawful Acts Against the Safety of
Maritime Navigation
2005 Protocol to the Convention10,
349, 362, 381
Convention for the Suppression of the
Financing of Terrorism360
Convention on the Continental Shelf4,
18, 54, 58, 66, 70, 72, 91, 93, 228 n. 17,
304 n. 41, 331, 754
index
Creeping jurisdiction1, 9, 51, 124,
327329, 348
Croatia56, 146150, 153172, 336, 341,
368 n. 94, 475
Convention on the High Seas3, 56, 60,
228 n. 17, 331, 403 n. 57
Convention on the Territorial Sea and
Contiguous Zone34, 54, 80, 228 n. 17
Declaration on the Conduct of Parties in
the South China Sea7, 201
Declaration of the United Nations
Conference on the Human Environment
439
Deepwater Horizon120, 757
Delimitation12, 49, 54, 8082, 90,
9297, 99, 100102, 104, 106, 108, 113,
115, 127130, 132, 134143, 145147,
151152, 156, 158160, 164 n. 103, 169,
172, 176, 178179, 181183, 185188,
191193, 195196, 204209, 212, 214,
216218, 220, 230, 232, 240, 269270,
279, 282, 286, 289292, 294, 296298,
300301, 303310, 318324, 530, 686,
726, 753
Delineation2, 42, 94, 275, 726
Denmark141142, 168, 214215, 290, 316
n. 114, 336, 339 n. 34, 575 n. 4, 737
Dinkum Sands8283
Dispute1, 39, 13, 16, 4647, 52, 57, 60,
8485, 89, 93, 96, 99, 101, 106, 111112,
114115, 119120, 124125, 130, 134136,
140, 146148, 152, 154, 159, 169170,
175176, 178183, 185186, 188197,
199, 202203, 206, 209, 212, 215, 220,
222, 225232, 236240, 243, 247248,
250252, 260261, 263267, 269283,
285286, 288289, 292, 296297,
300, 303, 305, 307, 321324, 339, 452,
455457, 487, 526, 529531, 538,
540543, 546547, 562, 578, 602603,
612, 672, 680, 685686, 688691, 693,
696, 708, 737, 767768
Dominium5152, 54
East China Sea89, 194, 250, 285287,
289303, 305, 307, 309311, 313, 318,
320321, 323324
ECOBAR Project (Benthic Indicators for
Monitoring the Ecosystem of the
Barents Sea)1415, 589590, 593,
598, 606
789
Ecosystems approach14, 17, 463, 514,
516, 589593, 599, 604, 606, 699,
701702, 711, 713, 715, 724, 730, 739,
742
El Dorado126, 774, 776
Energy security4, 112, 117119, 123126,
250, 628630, 705
Erga omnes532, 534, 536538, 541542,
545548, 687
European Commission433 n. 8, 699 n. 1,
700, 703, 705, 716, 720721, 725
European Court of Human Rights389
n. 9, 393 nn. 2324, 399, 401 n. 51
European Union
Charter of Fundamental Rights711
Integrated Maritime Policy699, 700
n. 5, 706 n. 30, 709 n. 46
Exclusive economic zone34, 89, 15,
5152, 5859, 6567, 72, 79, 82, 8485,
9091, 99, 112, 113 n. 6, 154, 166167,
178, 212, 250, 253254, 255 n. 13,
258261, 263, 267268, 298, 312, 328,
332, 335337, 351, 388, 392393, 396,
398399, 401, 432, 440, 482, 528, 530,
558, 578, 580581, 587, 610, 637, 735,
755
Extended continental shelf9, 115, 131
n. 12, 134, 204205, 209, 217, 230, 260,
298299, 301303, 308, 310311, 313,
315316, 318, 320321, 323324, 516,
561 n. 73
Fish Stocks Agreement12, 63, 477,
483490, 494495, 501502, 565567,
623624, 685686, 730, 738739,
744745, 748
First United Nations Conference on the
Law of the Sea (UNCLOS I)4, 71, 83,
244
Fisheries Case8789
Flag State9, 11, 56, 6162, 337, 343344,
347, 350351, 353354, 358, 362,
364371, 388, 393, 397399, 401402,
404, 414, 417418, 428, 433434,
440442, 447, 469470, 559, 663, 733,
738
Flags of convenience456, 459, 461, 467,
469
Freedom of navigation9, 236238,
250252, 264, 327, 330332, 335, 337,
343348, 362, 365, 392, 559, 580 n. 23,
587, 612, 637, 667
790
index
Freedom of the seas4, 40, 53, 6566,
73, 331, 534535, 612, 753, 762, 764,
782, 784
Genetic resources (see also marine
biotechnology)18, 497498, 744,
769770, 773778, 780781, 783785
Geneva Convention on the Continental
Shelf
(see Continental Shelf Convention)
George W. Bush3, 61, 339, 366
Ginsburg, Norton88
Global warming15, 511, 610, 627, 629,
638, 642, 649, 682
Glowka, Lyle769, 776, 785
Good faith12, 176, 192, 248, 278279,
321, 356, 371, 398, 436, 438, 449463,
465466, 468471, 530, 688, 696698,
739
Great Barrier Reef (GBR)583585
Greenhouse gases507508, 542, 639,
658, 670, 680, 682, 684685, 695, 697
Grotius, Hugo9, 6566, 330331,
453454
Gulf of Mexico6869, 131 n. 12, 477,
757
Gulf of Paria116 n. 21
Guyana/Suriname Award of 20076, 175,
181
Hague Codification Conference53, 68,
84
Hawaii2224, 32, 37
High Seas3, 910, 12, 1718, 36,
3940, 5253, 56, 5963, 73, 116, 146,
148154, 158, 166167, 169, 183, 209,
217, 238, 244, 313, 328, 331334,
350351, 354355, 358, 362363,
365, 370, 374, 385, 394, 396, 398,
400, 402403, 407408, 417418,
423429, 431432, 437439, 441,
445446, 449451, 454455, 458471,
482485, 487, 490, 497, 515, 534535,
545, 559562, 566, 577, 612, 619, 687,
710, 730731, 733736, 738, 741743,
745, 749751, 753, 755, 760768,
781782, 784785
High Seas Convention56, 60
Historic internal waters576, 579
Iceland57, 71, 142, 214, 526 n. 11,
569 n. 115
Illegal, Unreported and Unregulated (IUU)
fishing11, 431, 437 n. 24, 440, 459, 518,
596, 736
Impeccable3, 56, 60, 236, 239, 253, 339
Imperium5152, 54
Indian Ocean Tuna Commission486,
517, 736 n. 28
Indonesia19, 207, 209, 217218,
222223, 226 n. 5, 232233, 243, 251,
254, 260262, 336, 346, 358, 410, 414,
417419, 421, 587
Inter-America Tropical Tuna Commission
413 n. 25, 435, 464, 486, 736 n. 28
Interdiction principles61, 340, 367368,
370371
Internal waters88, 90, 146, 165, 171172,
246, 340, 350, 358, 367368, 440, 576,
579, 617618, 637, 710
International Association of Independent
Tanker Owners (INTERTANKO)580
International Covenant on Civil and
Political Rights379
International Convention Against the
Taking of Hostages360, 381
International Convention for the
Regulation of Whaling13, 512, 516,
526, 558
International Convention for the Safety of
Life at Sea, Chapter V14, 512, 558
International Court of Justice
Barcelona Traction Case536
Libya-Malta Continental Shelf Case93,
96
Libya-Tunisia Continental Shelf Case94
Nuclear Tests Cases535
South West Africa Cases532 n. 34, 533
nn. 3637, 39
Romania v. Ukraine Case104, 106
Statute of the International Court of
Justice183, 184 n. 29, 273 n. 15, 274
Qatar v. Bahrain Case93, 99
Whaling in the Antarctic Case13,
525526, 528, 534, 536539, 541,
547548
International Hydrographic Organization
83 n. 16
International Maritime Organization
Legal Committee357
Marine Environment Protection
Committee (MEPC)583, 750 n. 85
Maritime Safety Committee
(MSC)580, 582
index
International Maritime Boundaries
series128, 135
International Plan of Action to Deter,
Prevent and Eliminate Illegal,
Unreported and Unregulated
Fishing435, 739
International Seabed Area397
International Seabed Authority543, 730
n. 6, 734 n. 17, 734735, 749, 781, 784
International Tribunal for the Law of the
Sea
Advisory Opinion with respect to
Activities in the Area719
Bay of Bengal102
Deep Seabed Advisory Opinion544547
Seabed Disputes Chamber397 n. 34,
543545, 548, 667 n. 81, 672, 673
n. 108, 687, 695
International Union for Conservation of
Nature Guidelines551
International Whaling Commission516,
526, 548, 569
Ireland8485, 180, 724
Islands6, 8, 15, 22, 3839, 52, 54, 5859,
67, 7981, 8495, 97, 99, 101, 104, 106,
108, 160, 162, 164, 202204, 208217,
220, 222, 226, 228234, 244, 246247,
256, 259260, 279, 286289, 291, 331,
398399, 560, 578, 610613, 615616,
618619, 649, 705, 748
Italy
MS Achille Lauro10, 349, 352353
Japan
Japanese Whale Research Program
under Special Permit in Antarctica
527
Joint development zone132
Kunz, Josef L.3, 6567, 70
Kalayaan Islands Group (KIG)229, 233
Klek160, 161 n. 85, 162164, 168
Korea, South
Criminal Procedure Act377378, 380
Domestic laws related to renewable
energy
Framework Act on Low Carbon Green
Growth642
M/V Samho Jewelry373376, 379, 381,
386
Special Act for Anti-Piracy Activities in
Somali Waters380
791
Korea, North
So San61
Kyoto Protocol542, 628, 640, 644, 660
n. 51, 670, 685686, 688691, 692 n. 58,
693695
Law of the Sea Convention
International Tribunal
(see International Tribunal for the
Law of the Sea)
Part IX201, 219, 221
Part XII62, 493, 663, 666, 685
Part XV529 n. 21, 685 n. 28, 686
n. 30, 691
Part XVI451
Law of the Sea Institute23, 20, 40,
581
Limits14, 16, 39, 49, 5152, 57, 66,
6871, 7374, 8586, 8990, 96, 112116,
125, 127, 131, 135, 137139, 141, 159,
204, 209, 212, 220, 230, 235, 247, 259,
298300, 308, 310, 316, 317 n. 116,
321323, 325, 327, 359, 365, 397398,
400, 405, 419, 422, 424425, 427, 486,
488, 505, 515, 525, 529, 545, 556,
578, 581, 594, 610, 612619, 621622,
624625, 649, 655, 668, 679, 708, 710,
713, 727, 753, 755, 768, 776
London Convention
London Protocol513, 521, 655,
659665, 671672
Madrid Environmental Protection
Protocol512, 514, 550 n. 7, 567578,
684, 741 n. 59
Malaysia7, 169, 204205, 207, 209,
217218, 221, 226 n. 5, 229, 231232,
235, 251, 259, 280, 337, 346, 587
Macclesfield Bank266
Manhattan577
Marine/Maritime
Biodiversity18, 659, 713, 733,
742744, 746, 748, 750, 757, 771773,
775, 778, 781, 783
Boundaries2, 45, 7, 9, 22, 79, 92,
106, 108, 112, 114115, 127131,
134135, 137140, 141 n. 36, 143,
145, 147, 201204, 206209, 212,
217218, 220, 222223, 240, 286, 289,
291
Genetic resources18, 744, 769770,
774778, 780781, 783785
792
index
Jurisdiction1, 5, 7, 13, 51, 70, 89,
111112, 114115, 119120, 124, 127, 139,
143, 156, 201, 203204, 325, 515517,
523, 525, 741
Policy703, 705, 725
Protected areas14, 515, 549550, 564,
713, 734, 740, 744, 746, 781
Resources23, 8, 12, 43, 111, 117, 125,
219, 254, 419, 431, 438439, 450, 464,
469, 488, 539, 553555, 641, 643, 699,
710, 714, 716, 724
Security3, 9, 221, 223, 254, 268, 325,
327, 329, 348, 361, 371, 377, 385
Terrorism349, 350, 358, 363, 371
Micronesia, Federated States of407,
414, 417
Mongolia368 n. 94, 461, 469
Nansha Islands226, 233235, 246247,
261
Northeast Atlantic Fisheries Organization
464
Northern Canada Vessel Traffic Services
Zone Regulations (NORDREG)580
Northern Sea Route589, 598
Northwest Passage14, 575577,
579580, 582583, 587588
Northwind577
Normative1617, 25, 29, 35, 45, 185,
692, 694, 699703, 709711, 716, 719,
724726
Norway
Integrated Management of the Marine
Environment of the Barents Sea and
the Sea Areas off the Lofoten Islands
(IMP program)592, 594, 596 n. 28,
601, 604, 699700, 704714, 716718,
720, 722726
Ocean
Fertilization659, 663 n. 65, 665
Resources221, 701, 726
Oda, Shigeru47
Okinawa Trough8, 289291, 297,
300303, 308311, 318, 321324
Okinotorishima85, 215216
Outer continental shelf
(see extended continental shelf)
Overlapping claims5, 111, 114115,
119120, 124125, 130, 134, 136, 138,
175178, 180, 186, 188, 192194, 197,
238, 269, 297, 300
Pacific Islands Forum Fisheries
Agency418
Pacific Ocean22, 215, 226, 250,
407408, 449, 570 n. 123
Paracel Archipelago/Islands209, 259
Panama341, 368 n. 94, 459, 468
Pardo, Arvid37, 74
Particularly sensitive sea areas
(PSSAs)573, 582, 604
Permanent Court of Arbitration136 n. 24
Permanent Court of International Justice
56, 190, 283, 391 n. 11, 469
Persons at sea10, 387390, 394, 404
Pharand, Donat82, 577
Philippines7, 38 n. 50, 209, 216218,
221, 226 n. 5, 229, 231235, 239,
241243, 251252, 258, 260262, 264,
266, 278, 337, 346, 410, 417419, 421,
427429, 478
Pilotage583587
Piracy3, 10, 56, 349, 351361, 365,
370371, 373, 378, 380381, 383384,
386, 388, 393, 396, 398, 403, 706
Pirates910, 327, 349, 351, 354359,
361, 371, 373378, 383386, 395396,
402
Polar Sea579
Port State11, 347, 400, 431, 440445,
447, 596, 736
Pratas Archipelago226, 228
Precautionary principle22, 41, 44,
46, 447, 488, 671, 672 n. 101, 711, 717,
719723, 725
Prevlaka154155, 159, 173 n. 153
Principled Consensus on the East China
Sea Issue8, 294296
Proliferation Security Initiative3, 910,
61, 339, 350, 366367
Protection of the marine environment3,
61, 203, 222, 401, 537538, 547, 706,
713, 733, 781
Protocol between the Governments of the
Republic of Croatia and the Federal
Republic of Yugoslavia (Serbia and
Montenegro) on the Interim Regime
along the Southern Border between the
Two States156 n. 59
Provisional arrangements6, 175176,
178179, 184, 192, 197, 203
Raan-Drnovek Agreement149151,
153154
index
Regime of islands8, 52, 213, 234,
259260
Regional fisheries management
organizations11, 17, 431, 450, 486
Renewable energy15, 250 n. 2, 628 n. 6,
629632, 634651
Republika Srpska6, 160
Rio Declaration671672, 684
Rock15, 22, 38, 43, 67 n. 8, 8485,
9394, 102, 121, 212215, 230, 233, 247,
256, 259 n. 20, 310, 519, 611614, 616,
618, 643, 756
Rockall8485, 214
Russian Federation737
Sargasso Sea17, 734, 748749
Santa Barbara26, 34, 37, 67
Scarborough Shoal (or Reef)229, 233,
260, 267
Sea level rise3, 15, 79, 108109, 609612,
614 n. 11, 616619, 621, 623625, 627,
681, 682 n. 13, 684 n. 20
Second United Nations Conference on the
Law of the Sea (UNCLOS II)56, 328
Senkaku Islands8, 286289, 291292, 295
Sequestration16, 654, 661, 669, 742
Serbia155156
Singapore169, 217, 219 n. 73, 226 n. 5,
251, 262, 264, 280, 358359, 585, 587
Sir John A. Macdonald577
Slovenia6, 146150, 151 n. 34, 153154,
159
Sohn, Louis B.29 n. 18, 45
Somalia327, 349, 354356, 359, 374,
377378
South China Sea4, 68, 22, 23 n. 3,
4243, 60, 63, 72, 112, 121123, 125, 134,
194, 201203, 205209, 212213, 215,
217223, 225228, 229 n. 28, 230256,
258268, 285, 359
Southern Ocean13, 214, 507511,
513520, 523, 526528, 530, 559 n. 62,
562 n. 74, 570, 572 n. 132, 574 n. 145,
656658, 668, 675, 731
Spratlys Islands
Kalayaan Island Group229, 233
St. Vincent Millay, Edna109
SUA Convention10, 347, 349, 352354,
360363, 381383, 398
SUA Protocol10, 349, 361365, 370371
Suarez, Jose Leon68
793
Taiwan209, 217, 226 n. 5, 244, 250,
252253, 258, 285288, 296297
(see also, Republic of China)
Territorial Sea Convention5456,
8088, 99, 101
Territorialisation3, 65, 67, 72, 76
Thailand204, 226 n. 5, 251, 261, 421
Third United Nations Conference on the
Law of the Sea (UNCLOS III)5152,
5657, 66, 71, 84, 112, 117, 179, 316
nn. 112113, 328, 516, 730
Torres Strait141, 212, 583587
Tragedy of the Commons220, 539
Traynor, Chief Justice Roger B.26, 3032,
34
Treaty on the Functioning of the European
Union301 n. 6, 709
Truman Proclamation4, 53, 6566,
6971, 115116, 139, 313, 328, 753754
United Kingdom71 n. 16, 8485, 89, 94,
116 n. 21, 141, 141 nn. 3435, 214, 304 n.
44, 322 n. 145, 367, 532 n. 32, 560, 655,
663, 712 n. 63, 748
United Nations
Charter of the United Nations193, 269,
273 n. 15, 329, 334 n. 26, 342, 438
Commission on the Limits of the
Continental Shelf85, 113, 221, 259,
297, 327, 560 n. 67, 561, 613, 753
Conference on the Law of the Sea
First Conference71, 76
Second Conference76 n. 19
Third Conference66, 74, 76
Convention on the Law of the Sea
(see Law of the Sea Convention)
Environment Programme (UNEP)542
Fish Stocks Agreement12, 63,
477, 485490, 494495, 501502,
565567, 623624, 685686, 730,
738739, 744745, 748
Food and Agriculture Organization
Code of Conduct for Responsible
Fisheries12, 477, 484, 491, 496,
730, 739
Framework Convention on Climate
Change627, 673, 679, 681 n. 11,
688, 732
General Assembly1718, 3637, 40,
7475, 352 n. 16, 438, 621, 622 n. 33,
623625, 729 n. 2, 734, 741743, 746,
794
index
750, 765, 767, 769, 780781, 783,
784 n. 53
International Law Commission40, 53,
57, 59, 72, 76, 83, 278 n. 36, 352, 389,
399, 403 n. 57, 533, 687
Mission of Observers in Prevlaka154
Secretary-General362, 364, 465 n. 83,
609, 613, 619620, 622624, 743, 783
Security Council61, 163 n. 101, 191,
270 n. 9, 273, 327, 334, 341, 347,
354355, 363, 376, 624
United States
Geological Survey (USGS)122
Impeccable3, 56, 60, 236, 239, 253,
339
Secretary of State236237, 264
University of Ohio3, 65
United States Geological Service
[Survey?]122
United States Supreme Court82, 87,
89, 683684, 696
Van Dyke, Jon3, 19, 21, 24 n. 8, 29 n. 18,
32 n. 29, 37 n. 46, 48, 222
Vessel
Monitoring system432433, 592, 594
Registries462, 542
Vietnam7, 24, 2629, 35, 89, 138 n. 27,
204205, 217, 219 n. 73, 221, 226, 229,
231232, 235, 237, 239241, 243, 244
n. 137, 249, 251, 255, 258259, 261262,
266, 419, 462
Western and Central Pacific Fisheries
Commission11, 24 n. 6, 40, 53, 59, 72,
85, 147, 160 n. 81, 169, 221, 235, 259,
297, 322 nn. 143, 145, 323 n. 146, 327,
352353, 360361, 364, 409 n. 5, 411
nn. 13, 15, 413 n. 25, 418, 423 n. 42,
424 n. 43, 426 n. 47, 427 nn. 4851,
428 nn. 5254, 433 n. 8, 435, 436,
437, 462 n. 63, 463464, 466, 499,
515, 517, 519, 521, 528, 550, 560, 563
Convention4, 7, 918, 2829, 39,
51, 5763, 72, 81, 85, 88, 9192, 102,
109, 113, 127, 201, 219 n. 73, 221222,
227, 228 n. 17, 233, 267, 273 n. 15,
315, 323, 328333, 344, 347, 349,
353354, 360361, 363364, 371, 394,
410, 428, 435 n. 16, 436, 445, 450 n. 5,
452, 457, 461, 463464, 466, 490, 493,
495, 514, 516, 519, 522, 526527, 536,
542, 545, 558, 561563, 565566, 569,
571572, 581, 615616, 620623, 628,
654 n. 8, 660, 663, 667668, 680,
683, 686 n. 30, 689691, 694695,
696 n. 69, 697 n. 71, 713, 729730,
733738, 741, 744, 746, 749, 757 n. 21,
766, 780781
Whaling13, 22, 63, 401 n. 51, 513, 516,
520, 525532, 562 n. 74, 569570
World Health Organization/Food and
Agricultural Organization Codex
Alimentarius499
Yemen61, 375
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