LAW OF THE SEA: PROF. KENNEY SPRING
2011
HISTORICAL DEVELOPMENT (CH. 1)
I.
UNCLOS Preamble:
a. Prompted by maintenance of Peace, Justice, Progress
b. Conscious that ocean space is closely interrelated, needs to be considered
as a whole
c. Promote Efficient utilization of resources, conservation of resources, study,
protection & preservation of the marine environment
d. Take into account interests of developing countries (coastal & land-locked)
e. Resolution 2749 declaring seabed & ocean floor heritage of mankind
f. Affirming that matters not regulated here are covered by general IL
II.
Sources of Int’l Law
a. ICJ Statute, Art 38(1)
i. Customary Law: Results from a general and consistent practice of states +
opinio juris: a sense of legal obligation
1. How much practice is required? How much consistency is required?
2. Persistent Objector (silence is considered acceptance)
a. Uncertainty
b. Ex: US refused to accept territorial seas claims in excess of 3 miles until
1980
i. Freedom of Navigation Program  Navy shows they object if a
country is going to far, like banning warships in the EEZ
3. Dissenters bound if it’s a jus cogens rule
ii. Int’l Agreement/Treaties/Conventions: Creates law for the states party thereto
and may lead the creation of customary int’l law when such agreements are
intended for adherence by all states generally and are widely accepted
iii. General Principles: Common to the major legal systems, even if not
incorporated or reflected in customary law or int’l agreements, may be invoked as
supplementary rules of int’l law where appropriate
iv. Judicial Decisions and scholarly writing
III.
Background & Historical Development
a. Hugo Grotius: Freedom of the Seas/Mare Liberum (1609): Sea is international
territory that everyone may use for trade. Wrote to defend Dutch East India Company
breaking up various monopolies.
b. John Seldon (Mare Clausum): Seas are as capable as being appropriated as land.
Exclusive Uses.
c. Pre WWI:
i. Customary Law
ii. 3NM Territorial Sea
1. Innocent Passage
iii. High Seas
d. Post WWII:
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i. Emergence of USA/USSR Superpowers shared an interest in
maximizing the freedom of maritime communication & nationalism and
demands for economic autonomy of developing countries
ii. Uses of seas multiplied & intensified as a result of developments in
technology and increasing demand for resources
iii. Off-Shore Oil Production
iv. Development of Nuclear capabilities
v. Expansion of Fisheries – new technology increase competition between
nations, they could travel further, protect from overfishing + pollution
vi. Beginning of Tanker Traffic: threat of pollution from tankers, pressure
from coastal States for tighter controls over vessels passing near their
coasts  protect fisheries and tourism
e. Truman Proclamation (1948?)
i. First to claim resources on the continental shelf
ii. Justifications:
1. World wide need for petroleum, make new supplies available
2. Experts are of the opinion that there are resources on our shelf
and with technological progress we can recover these resources
3. In the interest of conservation jurisdiction should be taken
iii. Territorial Sea at the time was 3 miles
iv. *Chile, Ecuador and Peru cites the Proclamation to say each had
Exclusive and Sole jurisdiction 200 miles out (did not limit to resources on
the seabed like Truman)
v. Kicked off the idea that we may need a treaty to lay this stuff out
f. Santiago Declaration (1940)
i. Chile made a claim to control access of all vessels within 200 miles of
their coast
ii. Indonesia made a similar claim to exclude vessels from their waters
g. UNCLOS I (1958 Convention):
i. 4 treaties: Territorial Sea/Contiguous Zone, High Seas, Continental Shelf,
Fisheries/Conservation (not much participation in fish treaty)
ii. Issues:
1. Maximum Breadth of Territorial Sea: No Agreement
2. Maximum Breadth of Contiguous Zone: 12 NM Contig Zone
3. Coastal State Control Over Fishing: Territorial Sea Only
4. Coastal State Control Over Continental Shelf Resources: Depth of
200 Meters of “Exploitability”
iii. No dispute resolution
h. UNCLOS II (1960-FAILED): Attempted to decide issues
i. Trend of coastal states claiming more and more jurisdiction worried the
US
ii. Not many states were a party: focused on maritime power interests
iii. Marine environment became more important
iv. Almost had 6 mile territorial sea but failed by 1 vote
v. No discussion on transit passage through international straits
i. UNCLOS III (1982 Convention): 161 parties as of Dec 2010. LOS Convention (as
amended) entered into force 16 Nov 1994.
i. US and Soviet Union wanted a stable LOS regime to avoid WWIII
ii. “Common heritage of mankind”  wealth of the seabed, seems
Communist to Westerners
iii.
Various Interest Groups:
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j.
1. Major Maritime Powers (Russa, UK, FR, UK, US, Japan)
2. Group of 77 (third world nations, lacked money/technology to use
mineral resources in the seabed)
3. Archipelagic States,
4. Broad Margin States (big continental shelf),
5. Landlocked and Disadvantaged States (no coast)
iv.
Consensus Procedure, Final 2/3rd vote in plenary: 130 in favor, 4
against, 17 abstentions
1. Israel, Turkey, U.S. and Venezuela against
2. UK, Russia and West Germany among abstentions
v. Established 200 mile EEZ, extended territorial sea to 12NM
vi. US Relationship: US did not ratify because of sea bed resources. Treaty
created an authority to divide up the resources. Later the economics
turned out to be not realistic and an “implementing agreement” gutted
most of the “sharing” stuff so most of the developed countries joined.
President Clinton signed in 1994, but Senate has not ratified. (since we
signed, cannot commit acts that would defeat object & purpose of treat)
1. 1983 US Oceans Policy Statement: Navigational provisions
confirm existing maritime law and practice and represent a fair
balance of interests of all nations. US will accept and act in
accordance with the navigational provisions
a. Took the benefits without signing
2. 1994 Letter of Transmittal Forwarding LOS to Senate:
a. Convention advances interests of the US:
i. Preserves the right to use oceans to meet national
security requirements and of commercial vessels to
carry sea-going cargos
ii. Provides for an Exclusive Economic Zone
iii. Is a far-reaching environmental accord addressing
marine pollution
iv. Provides access to coastal waters for Marine Scientific
Research
v. Provides dispute resolution procedures to enhance
compliance with the convention
vi. Provides a stable, internationally recognized framework
for mining the The Deep Seabed
vii.
Status as CIL: Mostly considered CIL. Reagan issued a statement
saying that US accepted most (except deep mineral stuff) as CIL. The US
has been trying to push it into CIL so that they can take the good w/o the
bad. Other states annoyed because it was negotiated as a give and take.
Now US is saying we’ll take all the good stuff, but we don’t have to give
anything up. Reservations weren’t allowed, because it was a package
deal. In the Gulf of Marine Case, the ICJ basically says that most of LoS
is CIL.
viii.
Overview of Jurisdictional Zones: Convention creates zones, closer to
the state the greater their rights, further away the lesser the exclusive
rights of the state
1994 Implementing Agreement: stipulates that parts of Part XI of UNCLOS
shall not apply, ISA will be cost-effective, take decisions in a manner that does
not override the interests of industrialized nations, and approach regulation of
resources in deep sea in a sound commercial fashion.
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1. There are around 2-dozen states that ratified before July 28, 1994
but have not ratified the Implementation Agreement – in theory
they could choose to remain bound by original rules on deep-seabed mining but since in practice it will take place under the
1994 agreement, the choice is illusory
2. Interesting considering:
a. Art 309 and 310: UNCLOS does not permit reservations
(BUT states have made ‘declarations’)
b. Arts 311-17: procedures for amending the treaty are
protracted and only open to party states
3. After the 1994 agreement states ratify: Australia, Chile, China,
Finland, Germany, India, Japan, Malaysia, Netherlands, Norway,
Russia, UK
4. US signs the implementing agreement
k. 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish
Stocks: gives substance to the principles concerning the conservation and
management of fish stocks set out in Parts V (EEZ) and VII (High Seas)
i. Only 18 ratifications by 1998, needs 30 to enter into force
IV.
Corfu Channel Case (UK v. Albania) ICJ 1949
a. RULE:
i. You don’t need coastal state permission to exercise the right of
innocent passage in a strait used for international navigation
ii. There is no right for a coastal state to prohibit such passage
through a strait in time of peace
1. Leaves open the question if you can close it during times
of war
2. Doesn’t matter if there are optional routes, doesn’t have to
be a necessary route
b. Refers to 3 separate instances:
1. Albania fired at UK ships in the channel May 1946
a. UK said the ships are engaged in innocent passage in an international
strait
b. Albania: no, foreign warships have no right to be in Albanian territorial
waters
i. Warships were in a diamond formation, had soldiers on board,
crew was at action stations, number of ships/armaments
surpassed what was necessary, intent to intimidate/observe
coastal batteries
ii. Court: No, the mission was to affirm a right and they took
reasonable steps that did not make the passage not innocent
2. UK ships hit mines (October)
a. In a line formation, guns were not pointed at Albania
b. 45 people died
c. Albania denies laying the mines
3. UK conducted mine-clearing operations in Albanian territorial waters
(Nov)
a. Court: Contrary to clearly expressed objections, did not have consent
of international body that usually clears mines, no right to self help in
this case. Don’t want countries to take matters into their own hands.
c. Current state of the law:
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i. Right of transit passage in straits in international law
1. Right to be in a formation
ii. Innocent passage in territorial sea
iii. Submarines have to be on the surface with flag flown to engage in
innocent passage
d. Holding: UK did not violate Albania’s sovereignty the 1st two times by
passing through but they did when they swept the channel for more mines;
Albania has to pay equivalent of 20 million. UK violated innocent passage
when they swept the channel for mines, not continuos/innocent
V.
Geographic Examples:
a. Strait of Hormuz: a great deal of oil goes through this choke point between
Saudi Arabia and Iran
b. South China Sea
i. Spratly island are claimed by many countries, disputed
ii. Potentially very rich in oil and other natural resources
iii. Parcel Islands are also an area of dispute
c. Korean Maritime Border
i. Northern Limit Line by UN vs. North Korea’s Limit (do not claim the 3
islands, but want the ocean around it)
ii. Freedom of navigation in EEZ
VI.
Current Events
a. Bandow: Sink UNCLOS Treaty
i. Redistributionist Approach: “LOS was designed to transfer wealth and
technology from the industrialized states to the Third World.”
ii. Deep Sea Bed Authority: mining approval would discriminate against US
1. No Guarantee of commercial viability of mining
2. Authority would be costly
iii. Positives: environment, resource management, rights of transit (But its
basically reflecting CIL), navigational freedom
b. Schachte: Don’t Scuttle Sea-Law Convention
i. Convention is good for America’s national security
ii. Other side is wrong:
1. Transfer of technology was eliminated in the 1994 agreement
2. Art 19 defines innocent passage in ways that more clearly protect our
interest than the more general language in the 1959 Convention
3. Art 20 merely repeats the rule from 1958 that submarines are to
navigate on the surface in foreign territorial seas to enjoy innocent
passage
a. We also got an important exception to this rule in the convention
for submerged passage through straits that wasn’t in the 1958
version
4. Treaty does not give UN authority to levy taxes
5. Parties can choose their method of dispute resolution
6. US has excepted out certain types of disputes (military activities)
iii. UNCLOS establishes a stable and predictable legal framework for uses of
the oceans
iv. Provides dispute resolution
v. Promotes access to coastal waters for marine scientific research
c. Somalia Pirates – NY Times Jan 18 2011
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VII.
i. Struck more ships and took more hostage than in any year on record
ii. Somalia, Nigeria, Indonesia, Bangladesh
iii. Hijackings cost shipping companies, and higher ransoms in turn allow
pirates to get better equipments
iv. No functioning central government in Somalia for 20 years
Strait of Gibraltar Jan 28, 2011
a. Ship collided with Danish Tanker
VIII. Why do some states only claim a 3NM territorial sea?
a. Transit Passage
b. They might overlap and create an international strait. If you each only claim 3
than the area in the middle is a high seas corridor, freedom of navigation
c. Innocent passage: territorial waters
d. Transit Passage: in the contiguous zone, etc
e. Freedom of Navigation: international strait
BASELINES (CH. 2)
I.
Baselines: demarcation between that martime area (internal waters) where other
states enjoy no general rights, and those maritime areas (the territorial sea and other
zones) where other states do enjoy certain rights
a. Normal baseline: (5) low-water line along the coast marked on large-scale
charts officially recognized by the coastal state
b. Art 6: Reefs: not limited to atolls or coral reefs
i. Only reefs exposed at low tied may be used as baselines
ii. ‘fringing reef’ not clear
iii. what happens when there is a gap in fringing reef?
c. Art 7 Straight baselines
i. (1) system of straight baselines ‘may’ be used in localities where the coastline
is deeply indented and cut into, or fringe islands
ii. (3) Straight baseline must not depart from the general contours of the coast
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d.
e.
f.
g.
h.
i.
j.
k.
iii. (4) Straight baselines shall not be drawn from low-tide elevations unless
lighthouses or similar installations which are permanently above sea level
have been built on them, or received international recognition
iv. (5) Account maybe taken of economic interests, USAGE
v. (6) Cannot cut off from the high seas the territorial sea of another state
vi. Key problem with the articles is that it doesn’t provide any specific guidance,
such as how long a straight baseline can be
1. Ex: Norway skjaergaard, a baseline of a series of straight lines
connecting the outermost points on the skjaergaard (Anglo-Norwegian
Fisheries Case (1951))
2. Ways to breach p. 39-40
Art 9: Rivers: baseline is a straight line across mouth of a river that flows directly
into the sea between points on the low-water line of its banks.
i. Distinction between Estuary and River is open to abuse
ii. Delta: baseline constituted by low-water mark or in some cases by straight
baselines
iii. No limit placed on river closing line
Art 10(4): Bays
i. Semi-Circle Test
ii. Baseline is the start of your measurements, 12 miles is your territorial sea.
The further seaward you can push it, the better
iii. Provides good guidance
1. Distance of low water markers of natural entrance point of bay
2. 24 Mile max bay closing line
iv. Ambiguity: where is the ‘natural entrance point’ of an indentation?
v. Historic Bays: CIL, State may validly claim historic bay if for a considerable
period of time the bay has been claimed as internal waters and has
effectively, openly and continuously exercised its authority there in and the
claim has been acquiesced to by other States
vi. Bays bordered by more than one state: baseline is drawn by the low-water
mark around the shores of the bay
Art 11 Harbour Works: they count as forming part of the coast if they are very
close, but off-shore installations and artificial islands don’t count
Art 12 Roadsteads: included in territorial sea
Art 13 Low-Tide Elevations: if its located within the territorial sea, it can be used
as a baseline for measuring breadth of territorial sea
Art 16: Charts and Publicity  may help reduce abuse
Art 50: Archipelagic State: baseline can be drawn around outermost points of
archipelago itself
Art 121(2): Islands
i. Low Tide elevation is not considered an island
ii. Artificial islands (def is vague) do not have a territorial sea
iii. Occupation is not a necessary condition to be an island
iv. 121(3): Islands in principle can serve as a baseline for all maritime zones but
a “rock” can generate ONLY territorial sea and contiguous zone but NOT EEZ
or Continental Shelf
1. Difference between ‘rock’ and island is ambiguous
INTERNAL WATERS & NATIONALITY OF SHIPS (CH. 3/13)
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II. Internal Waters (Art 8): All waters landward of the baseline from which the territorial
sea and other maritime zones are measured, (juridicial/historic bays, ports, harbors,
rivers, lakes, inland seas, canals)
a. Coastal State exercises:
i. full sovereignty (Art 2(1)): extends into territorial sea & air space over it &
bed & subsoil
ii. subject to the rights of safe haven/safe harbor
iii. NO right of innocent passage, but does exist in newly enclosed waters
where straight baselines are drawn along a coastline that is deeply indented
(8(2))
iv. Many countries grant standing permission to enter waters or Friendship &
Navigation treaties
v. Local jurisdiction enforced when State’s interests are engaged, at request of
captain or where a non-crew member is involved
1. Pollution, pilotage and navigation laws routinely enforced
b. Int’l Ports: presumed to be open to international merchant traffic, but not a right
in customary international law
i. States have the right to nominate which ports are open to int’l trade
ii. State may close even int’l ports to protect vital interests including security,
prevention of pollution, or signaling political displeasure
iii. States have wide right to prescribe conditions for access to their ports
1. Could be limited by treaty obligations to permit free transit for trade
purposes (Ex: Art V of GATT)
iv. Force Majeure Exception: right of entry to ports in order to preserve human
life
1. Unclear about ship/cargo, most countries agree that the exception does
not require them to let the ship enter
2. Ship in distress can drop anchor and ride out storm in territorial sea
III. Right of Entry
a. Saudi Arabia v. ARAMCO
i. “…the ports of every State must be open to foreign merchant vessels and can
only be closed when the vital interests of the State so require.”
ii. Statement is not well accepted
iii. Actual Law is the a state can refuse any country into their ports or make up
any restrictions
b. Friendship, Commerce and Navigation Agreements
i. US would argue that aircraft have a similar right of force majeure
ii. Nicaragua v. U.S.
c. Art 211(3) Pollution from Vessels: states can establish requirements to prevent
pollution as a condition for entry into ports/internal waters, give publicity
d. No right of access to navigable rivers within one state, wider rights in
international rivers (canals treated similiarly)
IV. Right of Exit
a. Subject to limitations:
i. States can arrest ships in port (ex: customs offenses)
ii. Detain ships that are unseaworthy
iii. Liable to arrest as security in civil actions
iv. Require ships to obtain clearing papers from port authorities
73(2), 226(1), 292: Any ship arrested for violation of a State’s EEZ must be promptly
released upon posting of a reasonable bond or security, may not be detained in port
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V. Nationality of Ships
a. Art 90: Right of Navigation
b. Art 91: Nationality of Ships
i. Indicates what rights a ship enjoys, what obligations it is subject to, which
state exercises flag State jurisdiction over vessel, is responsible in int’l law for
the vessel and can exercise diplomatic protection behalf of vessel
ii. 91(1): “Genuine Link”  unclear
1. Flags of Convenience
a. Lower fees & taxation, lower crew costs (Panama, Liberia, Cyprus,
Bahamas, Malta, St. Vincent and the Marshall Islands)
b. More than half the world’s merchant ships are registered under 3-5
countries
c. Unwilling or unable to enforce pollution/safety regs
d. Denmark, Norway & Germany have international registers in parallel to
their existing national regimes to compete with flags of convenience
e. In practice links are tenuous and other states are disinclined to
challenge links
2. United Nations Convention on the Condition for Registration of Ships
(1986)
a. Not yet in force
b. Requires clear link, register form, States must maintain maritime
administration
c. Art 92: Status of Ships
i. (1) Can sale under only 1 flag at a time
ii. (2) If you switch flags during a voyage, you have no nationality, cannot claim
either State and anybody can take jurisdiction over you
d. Art 93: UN/IAEA
i. Ships can fly under UN or IAEA flag only
e. Art 94: Duties of the Flag State
i. States must “register” vessels authorized to fly its flag
ii. Assume jurisdiction over vessel
iii. Ensure ships flying its flag are safe: construction, equipment & seaworthiness
1. Manning of ships, crew, training, labour conditions
2. Maintenance of communications
iv. Kuwait’s request to register US/USSR/British flags during the Iran Iraq War
(1987)
v. US Reflagged & Protected 11 Kuwaiti Oil Tankers to support US security
interests (1) help Kuwait counter immediate intimidation and discourage
Iran from similiar attempts on other gulf nations and (2) to limit increase in
Soviet military presence in the Gulf (3) facilitate oil transport
vi. Some argued that US had violated its nuetrality
VI. Sovereign Immunity
a. State Vessels/Aircraft
i. Government owned or operated
ii. For non-commercial purposes
iii. Includes naval auxiliaries
b. Art 29: Definition of warship
i. Operated by Commissioned units of an armed force
ii. External Military markings
iii. Crew under military discipline
iv. Commanded by a military member
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c. Art 30: Noncompliance within the territorial sea
i. Costal State can have a warship leave the territorial sea immediately if it does
not comply with laws
d. Art 31: Responsibility of Flag State
i. Flag State is responsible for any damage/loss to Coastal State resulting from
non-compliance by a warship or government ship
e. Art 32: Immunity of Warships
i. Warships/government ships are immune UNLESS 30/31 happens
ii. Immune from:
1. Arrest and Seizure
2. Search or Inspection
3. Non-consensual boarding
4. Taxes
f. Art 96: Immunity on the High Seas
i. Ships used only on government non-commercial service are completely
immune from jurisdiction of any state other than the flag state
g. Art 236: Sovereign Immunity
i. Parts of LOS regarding protecting marine environment do not apply to
warship, naval auxiliary, other vessels/aircraft own by a state and used only
on government non-commercial service. But each state should ensure that
these vessels act in a matter consistent as reasonable with the convention
VII. Saint Vincent and the Grenadines v. Guinea/ MV Saiga Case
a. Facts: M/V Saiga arrested off the coast of West Africa by Guinea Government
south of EEZ. Ship is an oil tanker that supplied oil to fishing vessels. No bond or
security requested by Guinean authorities.
i. SV: Guinea failed to notify them of reasons for detention. Guinea
did not comply with Art 73(2) & set a bond. Saiga did not enter
territorial waters.
ii. Guinea: MV Saiga involved in smuggling/piracy & detention took
place after exercise of hot pursuit w/ Art 111. Tribunal has no juris.
Enforcing customs laws.
b. Holding:
i. Tribunal has jurisdiction under Art 292
ii. Log book shows ship was in Contiguous zone, no hot pursuit
iii. Guinea shall promptly release MV Saiga & Crew and post security of 400,000
US Dollars and amount of gasoil discharged
c. Art 292: Where government have detained vessel of another state and its
alleged that the detaining state has not complied with requirements of the
convention for the prompt release of the vessel, question of release of detention
may be submitted to the tribunal
i. Prompt release is important because ships are expensive to
maintain and send out, don’t hold up commerce
TERRITORIAL SEA AND INNOCENT PASSAGE (CH. 4)
I.
II.
Art 2: Legal Status of the Territorial Sea
a. Sovereignty of Coastal State extends to territorial sea, air space, bed & subsoil
Art 3: Breadth of the Territorial Sea
a. A right to establish UP TO 12 NM max
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b. Shift toward 12 mile was a reflection of a desire to bring coastal waters fishing,
pollution and etc under national control)
III. Art 17: Right of innocent passage
a. Right of all ships
b. Regardless of armament or means of propulsion
c. Surface only
d. Cannot be conditioned on prior notification or authorization
e. NO right of innocent passage for aircraft because of dangers inherent in their
speed & ability to avoid detection
f. NO right for subsoil b/c that would imply a freedom to mine
IV. Art 18: Definition of Passage
a. (2) Continuous and Expeditious
i. Includes stopping and anchoring incidental to normal navigation
1. OR Force majeure
2. OR Rendering assistance to persons/ships/aircraft in danger
b. Suspendable
V. Art 19: Meaning of Innocent Passage
a. (1) Passage not prejudicial to peace, good order, or security of coastal state
b. (2) Not an exhaustive list, there are other things you could do that would be
prejudicial to security.
i. No threat, force, weapons, collecting information, propaganda, launching
aircraft/military devices, unloading commodities, willful and serious pollution,
fishing, research, or interfering with communications
ii. (L) is a pretty broad catch all
iii. List of activities sort of implies that mere presence of a ship is not enough
1. on the other hand, if the list is non-exhaustive then these acts are
automatically non-innocent wheras under 1958 it would have been
necessary to show that the acts prejudiced the peace, good order or
security of the coastal state.
2. 2(a) is wide enough to encompass threats against other coastal states
VI. Art 20: Submarines
a. Navigate ON THE SURFACE and SHOW FLAG
b. One of the arguments against US becoming a party is that it restricts our
submarines from navigating under water, though the Navy isn’t worried about
this
c. *Some argue that since all submarines are warships, this article implies a right
of innocent passage in the territorial sea for warships. Around 40 states
currently demand prior notification for passage of warships
VII. Art 21: Coastal State Regulation
a. (1) Areas subject to regulation include: navigation, traffic, navigational aids,
cables, pipelines, living resources, fisheries, pollution, scientific research,
customs, fiscal, immigration, sanitary laws
b. (2) Shall NOT apply to Design, construction, manning or equipment of ship
i. IMO takes care of that
VIII. Art 22: Sea lanes and traffic separation
a. May designate when necessary to safety & navigation, particularly for tankers
carrying nuclear substances
IX. Art 23: Ships carrying Nuclear-powered/dangerous or noxious substances
a. Must carry documents and observe special precautionary measures
b. Several states exclude them from ports or have nuclear free zones, but under
the treaty it seems like you can’t do that
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c. Authorized in Art 22 to confine these ships to certain sea lanes
Art 24(1): Duties of coastal State
a. Not Deny or impair innocent passage
b. Not discriminate against ship or cargo
c. Policing and maintaining order, buoying and marking channels & reefs,
sandbanks & other obstacles, keeping navigable channels clear & giving notice
of danger of navigation, providing rescue services, lighthouses, lightships, bellbuoys, etc
d. Give notice of navigational hazards (Corfu)
XI. Art 25: Rights of Coastal State
a. (1) Take steps to prevent non-innocent passage
b. (2) Prevent breach of conditions of entry
i. Can suspend right of innocent passage – only without discrimination – if is
essential for the protection of security, must be duly published FIRST (but
NOT in an international Strait)
XII. Art 26: Charges
a. No tolls in territorial sea
b. You can levy charges if they receive specific services
XIII. Art 27: Criminal Jurisdiction
a. (1) Cases subject to coastal state jurisdiction
i. Should not be exercised EXCEPT:
1. If consequences extend to coastal state,
2. Disturbs peace the country or good order of territorial sea
3. Master of ship or flag state requests it
4. Necessary to suppress drug trafficking
b. (5) EXCEPT as provided in EEZ & Marine Env. Sections, you cannot arrest a
ship for a crime committed outside the territorial sea
i. Typically can’t arrest somebody in connection with a crime that occurred
outside zone if they are just exercising innocent passage
XIV. Art 30: Non-compliance by warships
a. Require to leave territorial sea if:
i. Violation of laws or regulations or passage is not innocent AND
b. Does not take corrective action Resolve differences diplomatically
c. Use Minimum force to leave
XV. Art. 32: Warships have immunity
XVI. Full Coastal State sovereignty subject to right of:
a. Innocent Passage
b. Transit Passage
c. Archipelagic sea lanes passage
d. Safe haven/safe harbour
e. Assistance entry
f. May close temporarily for security except in straits
XVII. Presidential Proclamation 27 Dec 1988
a. Territorial sea henceforth extends to 12 NM from the baselines of United States
determined in accordance with international law
b. The ships of all countries enjoy the right of innocent passage and the ships and
aircraft of all countries enjoy the right of transit passage through international
straits
X.
XVIII. Straits and Transit Passage (Ch. 5)
a. The 1958 Convention treated straits the same as territorial seas
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b. Art 34: Legal status of waters forming straits
i. Straits are usually between one part of high seas & EEZ and another part of
high seas & EEZ
c. Art 35(c): Long-standing international conventions not effected
d. Art 36: high seas or EEZ corridors
i. STRAITS WHICH ARE EXCEPTED:
1. 36: There is a high seas/EEZ route of similar convenience
a. Freedom of navigation in high seas and innocent passage
through bands of territorial seas on either side
b. Florida Strait
2. 38(1): Strait formed by an island bordering the strait and its mainland
a. Non-suspendable right of innocent passage
b. Strait of Messina
3. 45: Straits connecting high seas/EEZ with territorial sea of a 3rd state
a. Non-suspendable right of innocent passage
b. Ex: Strait of Tiran
e. Art 38: Right of Transit Passage
i. (1): Island Exception  transit passage shall not apply if there exists
another route of similar convenience
ii. (2) Freedom of Navigation & overflight for purpose solely of continuous
and expeditious transit between one part of EEZ and high seas and other
part of EEZ/high seas; no criterion of innocence
iii. (3) Any activity that is not an exercise of transit passage, have to follow
rules of territorial sea
f. Art 39: Duties of ships and aircraft
i. Proceed without delay
ii. Refrain from any threat or use of force or violate UN Charter
iii. Continuous & Expeditious as to normal mode of passage unless necessary
by force majeure or distress
1. US claims that subs don’t have to be surfaced in transit passage
because that’s the “normal mode” of passage
g. Art 40: Research and survey activities  need authorization of bordering
States
h. Art 44: Duties of bordering States  do not hamper transit passage and
give appropriate publicity to any dangers
i. Art 45: Innocent passage (similar convenience and territorial sea of a
“foreign state”
i. No suspension
XIX. Transit Passage Straits
a. Connect area of high seas/EEZ with another area of high seas/EEZ
b. Overlapped by territorial seas
c. No high seas of EEZ route of similar convenience with respect to
navigation and hydrographic characteristics
XX.
Transit Passage Rights
a. Unimpeded passage
b. Continuous and expeditious
c. “Normal Mode” of transit
i. Surface, air, subsurface
d. Shoreline to shoreline
e. Non-suspendable
XXI. Transit Passage Duties
13
a.
b.
c.
d.
e.
Not threaten/use force against the costal state
Not engage in marine scientific research/hydrographic surveys
Comply with COLREGS
Comply with international pollution control standards
Laws on other matters besides customs, fiscal, immigration, sanitary law,
safety, pollution may NOT be enforced. In this respect, coastal state
jurisdiction over ships in transit passage is narrower than over ships in
innocent passage
XXII. International Straits
a. Strait of Gibraltar
b. Strait of Hormuz
XXIII. Other straits used for international navigation
a. Strait formed by mainland and island
i. “Route of similar convenience” seaward of the island
ii. “messina” exception
b. “Dead-end” straits
i. Connect high seas/exclusive economic zone with territorial sea
c. Nonsuspendable innocent passage
d. Straits regulated by long-standing international conventions
i. Turkish straits
ii. Strait of Magellan
iii. Danish Strait
ARCHIPELAGIC WATERS, CONTIGUOUS ZONE, EEZ,
CONTINENTAL SHELF, HIGH SEAS (CH. 5-9)
I.
National Waters: Waters subject to the territorial sovereignty of coastal nations
14
a. Include:
i. Internal Waters
ii. Archipelagic waters
iii. Territorial Seas
II. International waters: Waters beyond the territorial sovereignty of coastal nations
a. Include:
i. Contiguous Zones
ii. EEZ
iii. High Seas
III. Contiguous Zone (Art 33)
a. Law enforcement zone
i. 1/3rd of coastal states have claimed
b. Max 24 nm from baseline
c. Coastal state may enforce laws regarding i-iv to prevent infringement
within its territory or territorial sea, or punish infringements committed in
territorial sea
i. Customs
ii. Immigration
iii. Fiscal
iv. Sanitation
d. High Seas freedoms of navigation and overflight apply
e. States are not required to maintain contiguous zones, like they are
supposed to maintain territorial seas; unlike the continental shelf the
contiguous zone is not automatically ascribed to the state
IV. EEZ
a. Max 200 nm from baseline
b. Rights of Coastal State:
i. Sovereignty over non-living resources, living resources, other
economic resources
ii. Jurisdiction over artificial islands and installations (500 meter
safety zone around them) (60, 80)
1. Partial removal required 60(3) – ensure safety of
navigation
iii. marine scientific research,
iv. protection of environment
1. dumping of waste (210(5)), other forms of pollution from
vessels (211(5-6)), pollution from sea-bed activities (208,
214)
c. Rights of other States in the EEZ
i. High seas freedoms of navigation and overflight apply
ii. Navigation:
1. Limited by due consideration for other states and Arts 88115
2. Can warships engage in naval maneuvers/weapons
practice? They are clearly ‘uses of the sea related to
navigation’ but argument over whether they are
“internationally lawful” (p. 427-8)
iii. Overflight:
1. State’s right to construct artificial islands & installations
may effectively prevent low flying in the vicinity of these
structures
15
2. Aircraft are subject to the coastal state’s competence to
regulate the dumping of waste
3. Uncertainy about use of EEZ by foreign military aircraft for
military exercises (Ch 17)
iv. Laying of Submarine Cables & Pipelines
1. More limited than at high seas b/c state has to give
consent for pipelines/cables on Continental Shelf (79(3))
d. No obligation to claim an EEZ
e. 121(3): Rocks which cannot support human habitation have no EEZ or
continental shelf
f. In practice EEZ’s have been established by administering powers for
nearly all dependent territories
i. Resolution III
g. Australia claimed an EEZ off its Antarctic territory in 1994, US protested
but nobody else has reacted even thought under 1959 Antarctic Treaty
prohibits new territorial claims in the region
h. Ambiguity as to what extent a Coastal state may manage living resources,
regulate foreign shipping to avoid conflicts with fishing  only guidance is
that state’s must have ‘due regard’ to eachother’s rights
i. Art 59 Unattributed Rights: no presumption in favor of the Coastal State
or other States, take into account equity, relevant circumstances,
interests of the parties and international community as a whole
i. Ex: Underwater listening devices for subs (Ch. 17), recovery of
historic wrecks beyond the contiguous zone (Art 303, Ch. 7),
buoys for scientific research (Ch. 16)
j. Overall effect of EEZ was more of a psychological gain for developing
countries, did not redistribute oil/gas resources b/c they already belonged
to the state under the Continental Shelf regime, led to some redistribution
of fisheries resources
V. Continental Shelf – rights automatically attach, unlike EEZ
a. Extends to outer edge of continental margin
b. Minimum 200 nm
c. Maximum 350 nm OR 100 nm beyond 2500 meter isobath
i. Customary International Law
d. Sovereign rights over resources of the shelf
i. Mineral and non-living resources
ii. Sedentary species
1. Classification of lobster and crabs as sedentary is
controversial (critical outside the EEZ)
2. Wrecks don’t count, though Art 303 gives States limited
jurisdiction over them out to limits of Contiguous Zone
iii. Developed countries have to pay authority beyond the 200 mile
zone
e. No effect on superjacent waters or airspace
f. Islands can have their own continental shelf, provided they sustain human
habitation 121(3)
North Sea Continental Shelf Case: Denmark, Netherlands were arguing against
Germany for the delimitation of boundaries. D&N argue that they should decide based
on CIL which is equidistance. Court says no – equidistance is not the approach. Court
said you must use “equitable principles”. Those factors include: the general
16
configuration of the coasts; readily ascertainable physical and geologic structure, and
natural resources; proportionality like length of coast line and general dir. of the coast.
VI. High Seas
a. UNCLOS Arts 86-119:
i. Art 86: The provisions of this part apply to all parts of the sea that are not
included in the exclusive EEZ, in the territorial sea or in the internal
waters of a State or in the archipelagic waters of an archipelagic state.
Does not abridge any freedoms enjoyed by all states in the EEZ.
ii. Art 116: Freedom of fishing on the high seas is subject to the rights and
duties in Art 63(2) (Straddling Stocks)
Freedoms – Art 87: Freedom of the high seas
1. Freedom of navigation
2. Freedom of overflight
3. Freedom to lay submarine cables and pipelines
4. Freedom to construct artificial islands
b. Limitations on Freedom (slavery/piracy/broadcasts)
i. Art 99: Prohibition on the slave trade
ii. Art 100: Prohibition on Piracy
iii. Art 101: Definition of Piracy
iv. Art 110: Who stops these acts? All states can use their warships to deal
with these acts. There are specific steps you have to follow.
VII.
Navigational Regimes
a. National Waters:
i. Internal Waters 
ii. Territorial Seas 
iii. Int’l Straits 
iv. Arch. Waters 
b. International Waters
i. Contiguous Zone 
ii. EEZ 
iii. High Seas 
VIII.
Consent
Innocent Passage
Transit Passage
Innocent/Archipelagic Sealanes Passage
High Seas Freedoms
High Seas Freedoms
High Seas Freedoms
Archipelagos (Art 46-54)
a. Definition: (46) a State constituted wholly by one or more archipelagos
and may include other islands, MAY draw baselines around islands
i. Does not include mainland states with non-coastal archipelagos
ii. Appears to embrace JP, NZ, UK
b. Archipelagic Baselines: (47)
i. Ratio of land to water within the lines is not more than 1:1 and not
less than 1:9
ii. Max 100 miles except that up to 3% can be 100-125 nm
iii. Main islands (unclear what this means) must be included
iv. Cannot depart from general configuration of the archipelago
v. Shall not be drawn to low-tide elevations unless permanent stuff
like lighthouses have been built on them
vi. Can’t cut off territorial sea of another State from high seas or its
EEZ
17
vii. Due publicity to charts of baselines
c. Archipelagic Waters
i. Not internal waters or territorial sea
ii. Right of Innocent Passage  may be suspended temporarily for
security reasons after due notice (52(1))
iii. Sovereignty over waters, air space, sea bed, subsoil, & resources
iv. Must respects rights enjoyed by third States from existing
agreements
v. Must Respect traditional fishing rights and other legit activities of
neighboring States in certain areas falling within archipelagic
waters
vi. Respect existing submarine cables (not pipelines)
vii. ***Provisions on pollution give Coastal State enforcement in
territorial sea and straits (220, 223) but it does not appear to
apply to archipelagic waters (p. 127)
1. Seems like less jurisdiction over arch waters than a nonarch state in its territorial sea or than the arch state itself
has in its own territorial sea lying BEYOND arch waters
d. Archipelagic Sea Lanes Passage (similar to Transit Passage)
i. All normal passage routes used for international navigation or
overflight
ii. Ex: Philippines effectively reserved arch waters when it ratified
iii. May designate sea lanes
1. 50 nm corridor
2. 10% rule
iv. **53(12): If Arch State does NOT designate routes, then arch sea lane
passage can be exercised through routes normally used for
international navigation (ambig)
1. If State does not designate sea lanes, submarines will
be able to transit arch waters submerged; normally subs
in innocent passage have to navigate on the surface
2. Also gives aircraft the right to fly over archipelagos
(though unclear it if applies to aircraft)
v. Rights:
1. Unimpeded Passage
2. Continuous and Expeditious
3. “Normal mode” of transportation
i. Surface, air, subsurface
4. Nonsuspendable
a. **does not address war time, theoretically you
could argue this is a peace-time requirement
vi. Duties:
1. Not threaten/use force against the coastal state
2. Not engage in marine scientific research/hydrographic surveys
3. Comply with COLREGS
4. Comply with international pollution control standards
IX. Traffic Separation Schemes
a. Designated by coastal states
i. Safety of navigation
b. Application to
i. Merchant Vessels
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ii. Warships/state vessels
X. Mandatory Ship Reporting Systems
a. Enacted under SOLAS
b. Requires ships to report presence
c. Current reporting systems
i. Off Torres Strait and Great Barrier Reef (Australia)
ii. Off Ushant (France)
iii. Strait of Gibraltar (Spain)
iv. Great Belt Traffic Area (Denmark)
v. Strait of Malacca and Singapore
vi. Off Finistere traffic separation scheme (Spain)
vii. Strait of Bonafacio (Italy)
viii. Northern Right Whale (US)
d. Sovereign immune vessels not required to comply
e. U.S. Sovereign immune vessels will not comply unless co/master
determines “essential for safety of navigation”
JURISDICTION OVER NON-LIVING RESOURCES (CH. 12)
I.
Non-Living Resources:
a. Oil and gas Deposits
b. Minerals
c. Precious Metals
II. UNCLOS Framework
a. Part XI “The Area”: provides for an International Sea Bed Authority with powers
to control access to sea-bed mine sites and the recovery of minerals from them.
Broadly speaking, the rate recovery was to be limited
i. Idea was that Miners would seek approval for operations and would pick two
equal sites, one would be mined by the Enterprise or in association with
developing states
ii. Authority would have had the power to compel the transfer on fair
commercial terms of mining technology
iii. Authority has 3 principal organs
1. The Assembly – all states are members, one vote each,
elects members of the Council, decides budget, mining
rules, distribution of economic benefits of mining, decisionmaking by consensus
2. The Council – implements Convention regime, approves
work plans of miners, recommends eco. assistance to
developing countries
3. The Secretariat – administration
4. Legal & Technical Commission – accepts mining
applications, manages day-to-day stuff
5. The Finance Committee – takes account of equitable
geographic distribution
b. Key Principles
i. Art 1(1): “Area” means the seabed and ocean floor and subsoil thereof,
beyond the limits of national jurisdiction
1. (2): “Authority” means the international seabed authority
19
2. (3): “activities in the area” means all activities exploring resources in the
Area
ii. Art 133 Terms: Defines resources as all solid liquid or gaseous mineral
resources at the area or beneath the sea bed
iii. Art 134: regime governs all activities connected with exploration and
exploitation of mineral resources in the Area
iv. Art 135 Legal Status of water/air space: Doesn’t affect ability to navigate or
fly over
v. Art 136 Common Heritage
1. One of the reasons Reagan pulled out of the whole treaty
2. Seemed like communist rhetoric
3. Technology transfer, share money, set up UN entity
vi. Art 137 Resources
1. No state can claim or exercise sovereignty over the area of its resources.
You can’t appropriate them
vii. Art 140 Benefit of Mankind
1. The authority shall provide for the equitable sharing of benefits derived
from activities
viii. Art 141: Use of Area for Solely Peaceful Purposes
ix. Art 143 Marine Scientific Research: Peaceful Purposes, Authority can
conduct research, States Parties may carry out research and must share
results
x. Art 144 Transfer of Technology
xi. Art 145 Protection of Marine Environment
xii. Art 147: the superjacent waters and air space remain high seas, reasonable
regard must be had to other legitimate uses of those waters and of the Area
itself
xiii. Art 149 Archeological & Historical Objects: preserved for benefit of
Mankind, particular regard paid to the preferential rights of State of origin, or
the state of cultural origin, or the state of historical/archeological origin
xiv. Art 155(4): Review conference in 15 years
xv. Art 170 The Enterprise
1. Prospecting and mining the Area, transportation, processing & marketing
of minerals recovered from it, not functioning yet
xvi. Section 5 Settlement of Disputes p. 98
III. National Jurisdiction
a. Art 2 – Territorial Sea
i. Sovereignty over the entire territorial sea
ii. Art 2(2) extends the sovereignty over the seabed and subsoil
b. Art 49—Archipelagic Waters
i. Seabed and subsoil
ii. Regardless of depth or distance from the coast
c. Art 56 – EEZ
i. Sovereign rights over natural resources
ii. Jurisdiction over artificial islands, etc
iii. Due regard
iv. Part VI
v. Marine Scientific Research
d. Art 76 – Continental Shelf
i. Sovereign rights over resources
ii. Rights are exclusive
20
iii. Note also articles 79, 81, 82, 85
IV. International Jurisdiction
a. Res Communis: resources can be used by any State but not State could gain an
exclusive title to any part of the area
b. Res Nullius: title could have been gained to areas of the sea bed by their
occupation through use, so that mining States would have become owners of
parcels of the ocean floor and not simply of the resources recovered from them
V. US Objections to Part XI
a. No guaranteed seat on the Council
b. Voting rules (Art 159)
c. Amendment provisions
d. Revenue sharing
e. Mandatory technology transfer
f. The enterprise versus Commercial
g. Production limitations
h. Payments
VI. Implementing Agreement “Fixes”
a. Guaranteed US Seat on the Council
i. November 98 Deadline
b. Guaranteed US Seat on Finance Committee
i. November 98 Deadline
c. Eliminated ‘mandatory’ technology transfer
d. Access first-come, first-served
e. US veto over revenue distribution
INTERNATIONAL LAW OF FISHERIES (CH. 14)
I.
II.
III.
Harmful Fishing Practices
a. Overuse or overfishing, Non-selectivity, Destructive Fishing, Destructive
Methods (Poison, Explosives, Muroami: pound/destroy coral to scare fish out)
Issues in Fishery Management
a. Tragedy of the Commons
b. Conservation
c. Access
d. Management Authority
e. Full utilization
f. Unitary Management
g. Balance with Navigational Freedoms
Development of Fisheries Law
a. Migratory Nature of Fish Stocks  jurisdictional implications
b. Inter-relation of Species  one stock feeds on another, or they inhabit the
same area
c. Fisheries as a common property natural resource
i. Tendency towards over-fishing (no incentive for a single fisherman to limit
his fishing)
ii. Tendency toward over-employment in fishing
iii. Likelihood of competition and conflict
iv. Necessity for international regulation
d. Economic Concepts:
21
i. Maximum Sustainable Yield: rate of increase is greatest when stock has
been reduced to this level
ii. Maximum Economic Yield: limit fishermen so that the catch for each
vessel will be decent
e. Regulatory Measures:
i. Total Allowable Catch: how many fish maybe caught from a particular stock
over a period of time, quotas allocated to certain states or vessels
ii. Gear Regulations: minimum mesh sizes, prevent catching of immature fish
iii. Area Closure/Seasonal Measures: protect spawning and immature fish
iv. By-catch levels: prevent fish from another species from being caught
v. Limiting number of fishing vessels
vi. Limiting size of fishing vessels
vii. Limiting number of fishing days
viii. Drawbacks of biological methods is that they require reliable data, militate
against economic efficiency, difficult/costly to enforce. The economic
measures often have social and safety side effects
f. Jurisdictional Challenges
i. Coastal States
ii. Flag States
iii. International Fisheries Commissions
g. ICJ International Fisheries Case (1974)
i. UK v. Iceland, Germany v. Iceland
ii. ICJ determined validity of Iceland’s extension of its fishing limits from 12 to
50 miles
iii. Iceland tries to argue that they don’t have consideration from Britain
anymore because everybody accepts a zone of 12 nautical miles – Ct says
that economic change does NOT fall under 62
iv. Court held that under customary international law a coastal state particularly
dependent on fishing for its economic livelihood in certain circumstances
enjoy preferential rights of access to the high-seas fishery resources in the
waters adjacent to its coasts
v. Has been criticized because of lack of evidence, in practice no State since
has relied on it
h. ITLOS Southern Bluefin Tuna Cases (1999)
i. AU, NZ and JP had agreed on a TAC quota for the tuna, in 1998 Japan
unilaterally increased its catch by 2,000 tons and claimed it was for research
ii. AU and NZ: Japan’s research will have minimal results and cause
irreversible damage to the Tuna stock. Violates Arts 64, 116-119, 300
iii. JP: Their projected catch rate would not slow the Tuna’s high rate recovery
iv. ITLOS: ordered an interim order 1999 that concluded that Japan had
breached their UNCLOS agreement under 64, 116-119 by failing to adopt
necessary conservation methods. Agreed with AU that scientific
uncertainties demonstrated that action must be taken to preserve the tuna
stock. Applied precautionary principle: parties prevent any further
aggravation or extension of the dispute, the parties keep catch levels to
those last agreed and as set by the CCSBT for 1999, the parties cease any
experimental fishing programs, the parties resume negotiations, and finally
that the parties form agreements with any other states fishing for Southern
Bluefin Tuna
22
1. Final decision 2000 revoked ban on Japanese fishing program and
orders the parties to cease from action that would aggravate relations
between the states. JP agreed to further mediation.
i.
ITLOS Case concerning the Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European
Community) (2009)
i. Chile claims that the EU fails to cooperate with the coastal state to ensure
the conservation of the highly migratory species, in violation UNCLOS. The
EU claims that Chilean denial of port access violates substantive
provisions of the General Agreement on Tariffs and Trade (GATT 1994).
ii. Terms of settlement include: more structure framework of fisheries
cooperation to replace 2001 bilateral provisional arrangement into a
commitment to conserve the swordfish stocks in the South Eastern Pacific
iii. Conduct fisheries with objective of sustainability
iv. Freezing fishing effort by both parties at 2008 level or at max historical
peak
v. Establish Bilateral and Technical Committee to exchange data, scientific
advice
vi. Multilateral consultation should include all relevant participants
vii. EU vessels in accordance with objectives will be granted access to
Chilean ports for landings, transshipments, replenishing or repairs
IV. UNCLOS Framework
a. Territorial Sea: states are sovereign, innocent passage precludes fishing
b. Archipelagic Waters (Art 51): States will respect traditional fishing agreements
c. EEZ (Customary Law to claim a 200 mile EEZ or EFZ)
i. Art 56(1): the coastal state has sovereign rights for the purpose of exploring
and exploiting, conserving and managing the fish stocks of the zone
ii. Art 61: Conservation of living resources
1. 61(3): Duties of conservation/management, ensure fish are not
endangered by over-exploitation, maintain stocks which can produce the
maximum sustainable yield, as qualified by environmental and economic
factors
a. taking into account fishing patterns, the interdependence of stocks
and any generally recommend sub-region, global standards
2. 61(1): Coastal state is to establish the TAC for each fish stock within its
EEZ
iii. Art 62: Utilization of Living Resources
1. 62(1): The coastal State is required to promote the objective of optimum
utilization of the living resources of its EEZ
2. 62(2): where the fisherman of the coastal state are not capable of taking
the whole of the allowable catch, the coastal state is to permit the
fishermen of other states to fish for the rest
3. 62(3): Coastal State has very broad discretion to determine TAC, the
surplus, and who gets it
a. Exempt from compulsory settlement of disputes
b. Can pick fishermen from whatever state they want (look at all relevant
factors, including economic dislocation & requirements of developing
states)
c. Uncertain if duties of 61 & 62 are CIL
23
iv.
v.
vi.
vii.
d. Some states make access contingent on financial compensation or
economic cooperation
4. 62(4): Coastal state can prescribe conditions requiring licenses,
conservation measures, carry out research programmes, to land part or all
of their catches in the coastal state and to train coastal state personnel
Art 63(1): Shared Stocks: stocks that migrate between the two EEZs of two
or more states
1. States concerned should seek to agree upon measures necessary to coordinate and ensure the conservation and development of such stocks
2. Nothing further is said about the management objectives or allocation of
the catch among the interested states
3. Duty to negotiate, no obligation to reach an agreement  result may be
mismanagement of a share stock and inequity in allocation of benefits
4. At least 20 agreements in force, States have been able to agree to a
certain extent
5. Agreements are (1) periodic arrangement under a pre-existing framework
treaty (2) bilateral commission (3) regional fisheries organization (4) ad
hoc
6. Art 63(2) Straddling Stocks: stocks of fish that migrate between or occur
in both the EEZ of one or more states and the high seas
a. How to manage? How to be allocated?
b. Coastal States & fishing States are to “agree upon the measures
necessary for the conservation of these stocks”  does not provide
any substantive guidance
Art 64 Highly Migratory Species: Coastal State’s normal rights and duties of
fishery management in its EEZ are supplemented by an obligation to cooperate with other States fishing for highly migratory species in the region
either directly or through appropriate international organizations
1. 1995 Straddling Stocks Agreement applies to highly migratory
species
2. Includes tuna, marlins, swordfish & oceanic sharks
3. Annex 1: Highly Migratory Species (list on p. 145)
Art 65 Marine Mammals: within an EEZ a coastal state is entitled to limit or
prohibit the exploitation of such a species rather than establishing an
allowable catch and promoting optimum utilization
1. Some states, such as AU, UK and USA have prohibited whaling in
their 200-mile zones
2. Int’l orgs can also limit or prohibit exploitation of marine mammals both
within and beyond the EEZ (65 and 120)
3. Int’l Whaling Commission put a moratorium on whaling in 1986,
Norway resumed commercial whaling in 1993 (objected to by JP, NW,
RS, sought to get around it by pretext of scientific research)
Art 66 Anadromous Stocks: species such as salmon, shad and sturgeon
which spawn in freshwater but spend most of their life in the sea
1. The State in whose rivers the fish spawn (state of origin) is primarily
responsible for their management and shall take appropriate regulatory
measures to ensure their conservation
2. Can establish TAC and admit foreign states to EEZ for any surplus but
is not obliged to do so
3. TACs must be done after consultations with other interested states
24
4. Fishing for Anadromous stocks beyond the 200-mile limit is forbidden
except where this would result in ‘economic dislocation’ for a state
other than State of origin
5. 66(3)(d): Conservation measures are to be enforced by agreed
between State of Origin and other states concerned
6. 66(5): where appropriate, use regional organizations
viii. Art 67 Catadromous Species: species such as eels which spawn at sea but
spend most of their lives in fresh water
1. Obligation on coastal states through whose EEZs catadromous
species migrate to cooperate over management (including harvesting)
of these species with the State in whose waters the species spend the
greater part of their life cycle
2. Latter state has overall management responsibility
3. Fishing for these species on the high seas is prohibited
4. Few problems
ix. Art 68 Sedentary Species: part of the natural resources of a coastal state’s
continental shelf, EEZ provisions do not apply to sedentary species
x. Art 69: Land-locked States
xi. Art 70: Geographically disadvantaged States
1. Give a guaranteed access for such states to a portion of any surplus.
xii. Art 71 Non-applicability of 69 and 70: do not apply in the case of a costal
state whose economy is overwhelmingly dependent on the exploitation of the
living resources in its EEZ
xiii. Art 72 Restrictions on transfer of rights: can’t be transferred by lease,
license, joint ventures unless otherwise agreed
xiv. Art 73: Enforcement:
1. (1) Coastal State may enforce by measures including boarding, inspection,
arrest & judicial proceedings
2. (2)(4): When a foreign vessel has been arrested, its flag State must be
notified immediately and the vessel and crew promptly released upon the
posting of reasonable bond or other security
3. (3): Where violations are established, penalties may not include
imprisonment in the absence of agreements to the contrary (32 states do
this anyway)
4. Hot pursuit is possible (see Ch 11)
5. Enforcement is a challenge in terms of resources and technology
d. Continental Shelf
i. Art 77(4): natural resources in this part refer to mineral and other non-living
resources of the seabed and subsoil & sedentary species (at the harvestable
stage, immobile or unable to move except in constant physical contact with the
seabed or the subsoil)
e. High Seas
i. Art 87: Freedom of the High Seas  fishing open to all states
ii. Art 116: Right to fish on the High Seas subject to restrictions arising out
of the rules for straddling stocks and certain species (63(2))
iii. Art 117-120 Conservation and Cooperation: duty on interested States to cooperate in the management and conservation of high-seas fishery resources,
making use of international fishery commissions
1. 119(1)(a): establish MSY as qualified by env. & eco. Factors, developing
states, interdependence of stocks, fishing patterns
25
2. 119(1)(b): adopt conservation measures take into consideration effect on
species associated with harvested species to maintain population of
such associated species
iv. Art 297(3) Dispute Resolution: sovereign rights to living resources in the
EEZ, including determining TAC, harvesting, allocation of surpluses,
conservation/management laws/regulations are not covered
1. Can go to conciliation if: (1) coastal state failed to comply with
obligations to ensure EEZ species not endangered, (2) state has arbitrarily
refused to determine TAC, (3) arbitrarily refused to allocate
V. Straddling Fish Stocks Agreement
a. Precautionary Approach
b. Applicability
c. Duty to Cooperate
d. “Donut hole” provisions: enclave of high seas in the Bering Sea surrounded
by the EEZ’s of Russia and the USA. Distant-water fishing states (CH, KO, JP,
PL) began to fish in the Donut hole since they were excluded from the EEZs.
Over-fishing over Pollock resulted and illegal entry into EEZs. Signed an
agreement in 1994 to restore Pollock at MSY.
e. Collection and Sharing of Data
VI. Bilateral Issues with Canada
a. 1999 Pacific Salmon Agreement
b. 1981 US – Canada Albacore Treaty
VII. Bilateral Issues with Russia
a. North Pacific Ocean and Bering Sea
b. 1990 maritime Boundary Treaty
c. Russian fishery management overhaul
VIII. US Fishery Conservation and Management Act (1976)
a. Prevent over fishing, rebuild stocks, fully utilize fisheries, promote US fishing
industry, preserve essential habitat
PROTECTION OF THE MARINE ENVIRONMENT (CH. 15)
I.
II.
III.
IV.
Forms of Pollution: Toxins, bio-stimulants, oil, radioactive isotopes,
sediments, plastics & other debris, pathogens, thermal? Noise? Alien
species?
Sources of Marine Contaminants:
a. Vessels 12% (primarily oil, alien species)
b. Atmosphere 33% (airborne particles)
c. Dumping 10% (sewage, sludge, nuclear – deliberate as compared to
vessels)
d. Land-based 44% (run offs from rivers, streams, fertilizers)
e. Offshore 1%
Pre UNCLOS: Geneva Conventions/HS Convention/Coastal State rights
Part XII: Protection and Preservation of the Marine Environment
a. Developing states versus developed states
b. Freedom of navigation interests versus those States advocating greater
restrictions
c. Sections 5, 6 and 7 are key
d. LOS Convention is a “framework” agreement
e. Other international agreements are important:
26
i. MARPOL 73/78
ii. London [Dumping] Convention/London Convention Protocol
iii. CLC and Fund Convention
V.
ITLOS The MOX Plant Case (Ireland v. United Kingdom), Provisional
Measures (2003)
a. Facts: Authorization of mixed oxide fuel plant in UK. Ireland contested the
project to protect the Irish Sea. Sued under art 290 of UNCLOS, ad hoc
arbitral tribunal under Annex VII.
b. Ireland wanted a provision measure to say, you cant’ start this plant
or ship any radioactive materials until we get this resolved through
pending arbitration  Court did NOT grant
i. Ireland invokes Precautionary Principle, burden is on UK to show
no harm would come from discharges into Irish Sea
ii. But it’s ambiguous, UK says there’s no scientific evidence we’re
going to pollute
iii. Rio Declaration Formula: Lack of full scientific certainty is not a
defense
c. Holding: Duty to Cooperate – fundamental concept in regime of
pollution prevention
i. Order: consultations to exchange information on possible
consequences, to monitor risks of effects, and to devise measures,
as appropriate, to prevent pollution of the marine environment
VI.
Definitions
a. Art. 1(1)(4): "pollution of the marine environment" means the
introduction by man, directly or indirectly, of substances or energy into the
marine environment, including estuaries, which results or is likely to result
in such deleterious effects as harm to living resources and marine life,
hazards to human health, hindrance to marine activities, including fishing
and other legitimate uses of the sea, impairment of quality for use of sea
water and reduction of amenities
b. Art. 1(1)(5): Dumping means any deliberate disposal of wastes or other
matter from vessels or OF vessels. Does not include incidental disposal
from normal operation of vessels
VII.
Territorial Sea
a. Art. 19(2)(h): Passage is NOT innocent if there is any act of “willful and
serious pollution”
b. Art. 21(1)(f): Coastal State can adopt laws relating to innocent passage
in TS for preservation of environment of the coastal state
i. 21(2): Coastal State may prescribe regulations for foreign vessels
in innocent passage, as long as they do not apply to design
ii. 21(3), 24, 211(4): must be duly publicized, non-discriminatory,
must not hamper innocent passage
c. Art. 23: foreign nuclear-power ships or ships carrying nuclear or other
inherently dangerous substances shall carry documents & observe
precautionary measures when in TS
d. Art. 25: Coastal State may take necessary steps in TS to prevent noninnocent passage
27
e. Art. 27 Criminal Jurisdiction on a Foreign Ship: exercise juris on board
a ship in TS to arrest or conduct investigation in connection with any
crime committed on board the ship during its passage, except if the
consequences of the crime extend to the coastal state, disturbs
peace/good order, its been requested
VIII.
International Straits
a. Art. 39(2)(b): Ships in transit passage shall comply with generally
accepted int’l regs, for reduction/prevention/control of pollution from ships
b. Art. 42(1)(b): Pollution regimes may only be adopted if they give effect to
applicable int’l regs. regarding the discharge of oil, oily wastes, and other
noxious substances in the strait.
c. 42(2),(3): Regs must be non-discriminatory, must not hamper transit
passage, and must be duly publicized
IX.
Archipelagic States
a. Art. 52: innocent passage through archipelagic waters
b. Art. 54: Arts 39, 40, 42, 44 apply mutatis mutandis to archipelagic sea
lanes passage
X.
Exclusive Economic Zone
a. Art. 56(1)(b)(iii): in the EEZ, the coastal state has jurisdiction over
protection and preservation of the marine environment
b. Art. 56(2): Coastal State will have due regard for the rights/duties of other
states
c. Art. 58(3): Other states in the EEZ will have due regard for Coastal State
d. Theoretical: whether a flag state can arrest one of its own vessels in the
EEZ of another state? Seems like it can. 58(2), art 92 applies in the EEZ
to the extent that its not incompatible with coastal state’s rights
XI.
High Seas
a. Art. 94(4)(c) Duties of the Flag State: master officers & crew observe
int’l regulations for safety at sea and preventions of collisions and
prevention of marine pollution
XII.
The Area
a. Art. 145: Authority shall take necessary measures SHALL be taken to
protect environment from harmful effects,
i. Authority shall adopt rules particularly related to drilling, dredging,
excavation, disposal of waste, construction of installations,
pipelines, etc
XIII.
Protection & Preservation of the Marine Environment
a. Art. 192: States have a general obligation to protect
b. Art 193: States have right to exploit their natural resources
c. Art. 194(1): states shall take all measures necessary to prevent pollution,
harmonize, in accordance with their capabilities
d. Art. 194(3): Measures shall include (long list, p.101 of convention)
28
e. Art. 194(5): Measures include those necessary to protect rare or fragile
ecosystems and habitat of endangered species
f. Art. 195: Duty not to transfer damage or hazards or transform one type of
pollution into another
g. Art. 196: Prevent pollution from use of technologies or
accidental/intentional introduction of new species to marine env.
h. Art. 198: States shall immediately notify other States likely to be affected
by marine environment in damage or in imminent danger
i. Arts. 202 and 203: Scientific/technical assistance to developing states,
preferential treatment for developing states
j. Art. 206: Assessment of potential effects of activities that may cause
substantial pollution
k. Art. 207: pollution from land-based sources  states will adopt laws to
prevent pollution, take into account regional features, developing states’
economic capacity, need for economic development
l. Art 208(4): States should harmonize at the regional level
m. Art. 210: Pollution by Dumping
i. Dumping within TS and EEZ and CntShlf need permission of State
n. Art. 211(2): Obligation on flag states to adopt pollution regulations for
their vessels which ‘at least have the same effect as that of generally
accepted int’l rules (not defined in scope, presumably includes Annex 1 &
2 of MARPOL) est. by int’l org.
i. 211(3): Port states must publicize requirements for entry into their
ports and notify IMO
ii. 211(7): they include inter alia those relating to notification of
accidents likely to cause marine pollution
iii. 211(5): Coastal State may adopted pollution legislation for its EEZ
which conforms to generally accepted int’l rules establish through
int’l org or diplomatic conference
iv. 211(6): pollution regs, state needs to consult with IMO and get
approval, give 15 months notice
o. Art. 213: Enforcement with respect to pollution from land-based sources
in accordance with 207
p. Art 216 Enforcement with respect to Pollution by Dumping:
i. Art. 216(1)(a): enforced by coastal state in TS/EEZ/ContlShelf
ii. Art. 216(1)(b): by flag state for its vessels
iii. Art. 216(1)(c): by any state loading wastes within its territory or offshore terminals
XIV.
Article 217 Flag State Enforcement
a. Primary means of enforcement under the Convention
b. Art. 217(1): Flag states MUST enforce violations of pollution laws
applying to their ships
c. Art. 217(6): states will investigate any violation at written request of
another state, institute proceedings if there’s enough evidence
XV.
Article 218 Port State Enforcement
a. Art. 218(1): Port state may take legal proceedings against a vessel in one
of its ports that is alleged to have discharged polluting matter outside the
TS/EEZ
29
b. Art. 218(2): Can’t do it if the violation happened in the IW/EEZ/TS of
another state, unless that state or flag state requests or its likely to affect
the port state’s EEZ/TS/IW
c. Art 219: can prevent a vessel in port from sailing if its not seaworthy &
threatens the marine environment
d. Art 220(1): Port State may arrest in one of its ports and prosecute a
vessel which is alleged to have violated that state’s pollution laws or
applicable int’l rules in its EEZ/TS
XVI.
Article 220 Coastal State Enforcement
a. Art. 220(2): Where a foreign vessel is suspected of violation during its
passage through the territorial sea the coastal state’s anti-pollution
legislation, the coastal state may inspect the vessel and where the
evidence so warrants, institute legal proceedings
b. Art. 220(3): clear grounds to believe ship in the EEZ/TS & committed
violation in the EEZ, state may require vessel to give info on its identity,
port of registry, last & next port, any other relevant info to est. if a violation
occurred (*what does clear grounds mean?)
c. Art. 220(5): ship in EEZ/TS violated in EEZ resulting in a “substantial
discharge causing or threatening significant pollution of marine env” then
State can inspect if vessel refuses to give info or gives wrong info
d. Art. 220(6): ship in EEZ/TS violated in EEZ, resulting in ‘discharge
causing major damage or threat of major damage to coastline etc” state
may institute proceedings, including detention of the vessel
e. Art. 220(7): If coastal state has established other procedures through int’l
org or agreement, allow vessel to proceed
f. Art 221: Measures to avoid pollution from Maritime Casualties:
Collision of vessels resulting in material damage, states can enforce
measures beyond TS proportionate to situation to protect coastlines,
fishing from pollution
g. Art. 222: Enforcement with respect to air pollution: states shall
enforce within air space under their sovereignty, vessels, aircraft, through
int’l standards/rules to prevent air pollution
h. Art 233: If the alleged violation of the coastal state’s legislation was
committed during transit passage through a strait, can only arrest if the
violation causes or threatens “major damage to the marine environment
of the strait’
XVII.
Safeguards
a. Art. 226 (1): Investigation of foreign vessels: states shall not delay a
foreign vessel longer than essential to investigate; limited to an
examination of documents. Physical inspection can only happen when
there are clear grounds that the equipment does not correspond to docs,
docs are not sufficient to confirm a violation, or docs are not valid.
b. Art. 230 Monetary Penalties: may only be imposed for pollution
violations beyond the TS
c. Art. 234: ice-covered areas within the EEZ, the coastal state may adopt
non-discriminatory pollution regs, no requirement that they conform to int’l
rules and no particular procedures, NO LIMITATIONS!
30
d. Art 235: States should develop special liability regimes for marine
pollution (only 2 attempts so far)
e. Art. 236 Sovereign Immunity: marine environment provisions do not
apply to warships/aircraft on government non-commercial service
f. Art. 237: provisions are without prejudice to obligations assumed under
other conventions, carry out in a manner consistent with the general
principles of UNCLOS
XVIII. London [Dumping] Convention of 1972
a. LC Coverage: dumping as the deliberate disposal of waste from ships
and aircraft, but excludes disposal of waste incidental to the normal
operation of ships and aircraft
b. Imprecise about enforcement, general rules of customary law
c. Dumping regulated by material (The Black List, The Grey List, All other
wastes) p. 364
d. Art. III establishes general guidance for site selection
e. 1996 Protocol to LC
i. New Annex I
ii. Radioactive materials
iii. Disposal in seabed and subsoil
iv. Disposal of offshore structures
v. Entered into force in 2006
XIX.
MARPOL 73/78
a. As of 2010, 150 countries, 98% of world’s shipping are parties
b. Six Annexes (first 2 are obligatory for all parties)
i. Oil (1983) – binding on 94% of the fleet by 1998
1. Tankers over 150 tons must operate the load-on-top
system under which limited discharges of oily water may
be made while the tanker is en route
2. Tankers must be fitted with segregated ballast tanks and
equipment for crude oil washing
ii. Liquid Noxious Substances (1987)
1. Must be discharged in a reception facility unless
adequately diluted
iii. Harmful Substances (1987)
1. Regulations concerning packaging, marking, labeling,
documentation, stowage and quantity limits
iv. Sewage (NIF)
1. Prohibits discharge of sewage within 4 miles of land unless
ship has it approved. 4-12 miles from land sewage must be
comminuted and disinfected before discharge
v. Garbage (1988)
1. Minimum distances from land for the disposal of all kinds of
garbage and some areas prohibit their disposal entirely
vi. Air Pollution (NIF)
1. Limits sulphur and nitrogen oxide emissions from ship
exhausts, prohibits shipboard incineration of certain
31
substances and regulates the onboard use of ozonedepleting substances
vii. Proposed 7th Annex would deal with problem of introduction of
unwanted aquatic organisms in ballast water
viii. Overall problem: lack of adequate reception facilities in ports of
many parties
XX.
U.S. Statutes
a. Marine protection, Research and Sanctuaries Act (MPRSA)
i. Prohibits the dumping of material into the ocean that would
unreasonably degrade or endanger human health or the marine
environment
ii. “Oceans Dumping Act” is part of MPRSA, covers:
1. materials transported to sea for disposal
2. ocean incineration of wastes
3. disposal of dredged spoils (overlaps with CWA section
404)
4. all materials transported from U.S. to “ocean waters”
(waters beyond the baseline)
5. transported by U.S. vessels to any ocean location
6. transported by foreign vessels to U.S. TS
iii. Penalties
1. Civil ($50K/$125K); criminal for knowing
iv. ODA Exclusions:
1. ship generated wastes
2. sewage form land outfalls
v. ODA prohibitions:
1. black list substances, medical wastes, NBC agents
2. sewage sludge and industrial wastes
b. Oil Pollution Act (OPA 90)
i. Mandates extensive planning for oil spills from tank vessels and
onshore and offshore facilities. Establishes comprehensive
elements of damage for oil spills and imposes strict liability on
RPs. Inapplicable to public vessels.
ii. Section 4115 of the act requires that tankers operating in U.S.
waters must have double hulls. Tankers must comply with this
double-hull requirement within a 25-year phase-in period.
iii. However, unclear how close this is to spirit of UNCLOS 
discourages unilateral design of ships
c. Act to Prevent Pollution from Ships (APPS)
i. Implements MARPOL 73/78
ii. Includes operational oily wastes, garbage, food, plastic and vsl
sewage
iii. Calls for port reception facilities
32
iv. Foreign vsls subject within MARPOL Annex I/II out to 3NM, Annex
V out to 200 NM
v. There are civil and criminal penalties
vi. Applies Annex V to SI vessels
XXI.
In the future, int’l community should:
a. Bring conventions into force, increase ratifications on all conventions
b. Ensure various regional commissions and meetings function effectively
c. Improve implementation of existing rules
d. Increased monitoring of effect of existing rules on marine pollution
XXII.
Current Initiatives for Protection of the Marine Environment
a. IMO Marine Environment Protection Committee
i. Agenda for Fall 2010 meeting:
1. Harmful aquatic organisms in ballast water
2. Recycling of ships
3. Prevention of air pollution from ships
4. Reduction of greenhouse gas emissions from ships
5. Consideration and adoption of amendments to mandatory
instruments
6. Interpretations of, and amendments to, MARPOL and
related instruments
7. Formal safety assessments
8. Implementation of the OPRC Convention and the OPRCHNS Protocol and relevant conference resolutions
9. Identification and protection of Special Areas and
Particularly Sensitive Sea Areas
10. Anti-fouling systems for ships
b. International Convention on the Control of Harmful Anti-fouling
Systems on Ships
i. Adopted 5 October 2001
1. Key Dates:
2. 1 Jan 2003: No new applications of organotins
3. 1 Jan 2008: No organotins on hull
c. Regulation 13G and 13H
i. Annex I of MARPOL 73/78
ii. Single-hull Oil Tanker phase-out
iii. Amendments adopted December 2003
iv. Took effect 5 April 2005
d. International Convention for the Control and Management of Ships
Ballast Water and Sediments
i. Adopted February 2004
1. Intended to prevent effects of the spread of harmful
aquatic organisms carried by ships' ballast water.
2. Will require all ships to implement a Ballast Water and
Sediments Management Plan.
e. Particularly Sensitive Sea Areas
i. Designated by IMO (ex: great barrier reef, Florida keys,
Galapagos)
ii. Protected through
1. Ship Routing Measures
33
2. Discharge and Equipment Requirements
3. Vessel Traffic Services
iii. MARPOL Special area is different: you can’t discharge oil
f. Shipbreaking:
i. Hong Kong International Convention for the Safe and
Environmentally Sound Recycling of Ships May 2009
1. 15 states need to sign, represent 40% of world’s tonnage
2. Ship disposal, break up ships to recycle for scraps
3. Ships sent for shipbreaking must have inventory, list of
hazardous materials, initial survey to verify inventory
ii. Older ships contain many substances that are now banned:
Asbestos, hydrocarbons, heavy metals
iii. Relationship to Regulations 13 G/13H
g. MARPOL Annex VI
i. Entered into force May 2005
ii. Sets limits on certain emissions
iii. July 2005 amendments
iv. North Sea Sox Emissions Control Area
v. Review of Annex VI and Nox Technical Code
h. MARPOL Annex II
i. Revised Annex II regulations adopted October 2004
ii. 4 Category system for noxious and liquid substances
MARINE SCIENTIFIC RESEARCH (CH. 16)
I.
II.
What is Marine Scientific Research?
a. Marine Scientific Research is not defined
b. Purpose
c. Includes:
i. Oceanography, Marine biology, Fisheries research, Scientific
ocean drilling and coring, Geological/geophysical scientific
surveying
Development
a. International law prior to UNCLOS
i. 1958 Territorial Sea Convention – need permission from coastal
state
ii. 1958 High Seas Convention – freedom to research not expressly
mentioned in article
iii. 1958 Continental Shelf Convention – ‘pure’ and ‘applied’ research
required consent of coastal state but they should ‘normally’
consent for the former if requirements complied with
iv. Customary International Law – limitations on marine research in
the EEZ
v. UNCLOS negotiations
1. U.S. concerns
a. Blue water oceanography
b. Denials
c. Replies
d. Information controls
2. Coastal State interests
34
a.
b.
c.
d.
Jurisdiction
Resources
Environment
Security
III.
Competing Interests
a. Freedom of scientific research: controls are burdensome, research
benefits all mankind and unity of ocean demands that its study be
unrestricted
b. Sovereignty over resources: developing countries wanted control in EEZ
and were afraid of research vessels being used for espionage
c. Tension reflected in compromises made in UNCLOS
i. Articles 19(2)(j) Innocent Passage: not innocent anymore if you
carry out research or survey activities
ii. Art 40 Transit Passage: No research/survey without consent of
bordering states
iii. Art 54: Art 40 Applies to archipelagic lanes passage
iv. 56(1)(b)(ii): Coastal state has rights over research in EEZ
v. Art 245 Research in TS: Need consent from Coastal State
vi. Art 246(1) Research in EEZ/Cntshlf: need consent from coastal
state
vii. Article 87(1)(f): Freedom of scientific research, subject to Parts
VI and XIII
IV.
UNCLOS Framework
a. Article 246: EEZ and continental shelf
i. (2) Consent of coastal State required
1. Unclear if CS consent is required where research is in the
water column past 200 miles over the continental shelf
ii. (3) Consent normally granted, CS will not delay unreasonably
iii. (4) ‘Normal Circumstances’ unless hostility b/w States
iv. (5) Consent may be withheld if the research is for
exploration/exploitation of natural resources or inaccurate info is
provided
v. Not subject to compulsory third-party settlement
b. Same basic approach as the 1958 Geneva Convention
c. Article 247: If the State is a member of an IO and they do not respond for
4 months, consent is implied
d. Article 248: Duty of researching State or IO
i. Nature and objective
ii. Methods and means
iii. Geographical areas of project
iv. Arrival/departure dates
v. Sponsoring institution, participants
vi. Coastal State participation
e. Article 249: Researching State or IO obligations
i. Let Coastal State participate if it wants
ii. Provide CS with reports, provide access to data/samples,
assessment of data
iii. Make results internationally available
iv. Inform CS of changes in research program
v. Remove all installations/equipment when you’re done
35
f. Article 252: Implied consent 6 months after info provided to CS
g. Art. 253 Suspension
i. If research activities are not being conducted in accordance with
the information upon which consent was based
ii. If the researching State or IO fails to comply with its duties under
LOS (Art. 249)
h. Article 253: Cessation
i. Noncompliance
ii. Failure to correct
i. Art 258: research installations are subject to the same rules
i. Coastal State has jurisdiction over them
ii. Safety Zones up to 500 meters around them (260)
iii. Can’t be an obstacle to int’l shipping routes (261)
iv. Identification marks, warning signals for safety (262)
j. Art 249(2): CS can refuse deployment of ODAS, buoys
i. No state has enforcement juris over the object in EEZ/ContlShelf,
recourse to Art 59
V.
Hydrographic And Military Survey
a. Hydrographic surveys include:
i. Determination of
1. Depth of water, Configuration of bottom, Directions/force of
currents, heights and tides, Hazards to navigation
ii. For the production of nautical charts and similar products to
support safety of navigation.
b. “Military survey” defined  not universally accepted that military survey
is different from marine research, intentional ambiguity
i. Art 19(j)(2): Disjunctive: research OR survey activities (US says
they are two different things
ii. Art 21(1)(g): References marine scientific research AND survey
1. Intent at that treaty wanted them separate (Art 40, 54, 213)
c. Military survey data includes:
1. Oceanographic, Marine geological, Geophysical, Chemical,
Biological, Acoustic
ii. Distinguish
1. Research and Marine Scientific Research
2. Hydrographic surveys and survey activities
INTERNATIONAL ORGANIZATIONS AND OCEANS
MANAGEMENT (CH. 13)
I.
Current Issues
a. Trends:
i. Decreasing:
1. Standardization of national regulations on technical
matters
2. Adopt international rules and regulations
ii. Increasing:
36
II.
III.
1. Operational measures
2. Management in the shipping industry
3. Performance of Administrations
4. Technical Co-operation/Capacity building
5. Regional mechanisms
History Inter-Governmental Maritime Consultative Organization (IMCO)
Convention (1948)
a. Purpose of IMCO
i. Provide machinery for cooperation
ii. Removal of discriminatory action and unnecessary restrictions
iii. Address unfair restrictive practices
iv. Address other matters concerning shipping
v. Provide for the exchange of information
vi. Pollution control function?
1. 1954 Oil Pollution Conference
2. 1975 Amendments
3. Current status
b. IMO and UNCLOS
i. IMO is implicitly recognized as the “competent international
organization” for those provisions that concern marine safety
(navigation) and marine pollution
ii. IMO Methodology
iii. IMO’S Structure
1. Assembly is all member states
2. Council: 32 member States, supervises activities
3. Committee Structure
a. Maritime Safety Committee (MSC)
b. Responsibilities
c. Maritime Environment Protection Committee
(MEPC)
i. Coordinates IMO efforts in the area of
prevention and control of pollution from
ships
c. Expansion of Scope of IMO
i. Ship Operations
1. Ship routing, PSSAs
ii. Security
1. 1988 SUA Treaties, ISPS Code, 2005 SUA Treaties
iii. Piracy and Armed Robbery
1. Assembly resolutions and MSC Guidelines
iv. Stowaway
1. IMO focal point
v. Persons Rescued at Sea
Tacit Amendment
a. Distinguished from an amendment by a Conference
b. Both MARPOL 73/78 and SOLAS provide for tacit amendment
EXCESSIVE MARITIME CLAIMS/DELIMITATION OF
MARITIME BOUNDARIES (CH. 10)
37
I.
II.
III.
Maritime Boundaries
a. Theories of delimitation
i. Equidistant Line (simple, certain, but inflexible)
1. Islands generate their own ContShelves, could great
massive distortions
ii. Equity
b. CIL: Equitable principles + relevant circumstances
i. “relevant” seen as wider in scope (configuration of coast, islands,
length of coastline, prior conduct)
c. Art 6 of Cont Shelf Conv: equidistance + special circumstances
i. “Special” regarded as narrow (ex: islands, channels)
d. Some maritime boundaries b/w adjacent states follow the line of latitude
passing through the point where the land boundary meets the sea\
e. Common to set boundaries by reference to geographical co-ordinates for
the sake of certainty and simplicity
Types of excessive claims:
a. Baseline, Territorial Sea, Security zones, EEZ
Legal History:
a. Grisbardarna (Permanent Ct. of Arbitration) (1909)
i. Issue: Norway/Sweden Territorial Sea Boundary
ii. Background: 17th Century Practice; Treaty of 1661 on the
Norwegian/Swedish Boundary
iii. Holding: Upheld Boundary Line drawn perpendicular to the coast
iv. Tribunal sided with Sweden because the fishermen of the two
countries had to use certain areas frequently and they conducted
lobster fishing in certain places
1. Acted like they were exercising possession of certain areas
2. Looked at past practice as a key factor
b. North Sea Continental Shelf Case (1969)
i. Equitable principles and agreement
ii. Under equidistance the concavity of the Germany coastline would
have give it a very small portion of the North Sea Shelf
iii. Great emphasis on natural prolongation of land territory
c. Anglo-French Case (1977)
i. Delimitation of Western Approaches b/w France and UK
ii. Court: Equidistance + Special Cir rule of Art 6 in effect ‘gives
expression to a general norm that failing agreement, boundary is
determined on equitable principles
iii. Give Scilly islands “half-effect” because they are small
iv. Channel islands were on the ‘wrong’ side of the boundary, they
were given their own 12 mile enclave of continental shelf, with
boundary otherwise drawn down the middle of the English
Channel equidistant from the coasts of England and France
d. Libya-Tunisia
i. Used a line perpendicular to the coast, ignoring geopolitical
arguments
ii. Tunisian Kerkennah islands given half-effect
iii. Principle of proportionality used in a different way, to confirm the
equitableness of the court’s proposed solution
38
iv. Court regarded a line extending seawards from the terminus of the
land boundary which neither party had crossed as a highly
relevant circumstance
IV.
V.
VI.
VII.
VIII.
IX.
e. Nicaragua v. Honduras (2007)
i. Starting point is the thalweg of the main mouth of River Coco
ii. Honduras got the islands
iii. Nicaragua won greater sovereignty over Caribbean waters
iv. Demarcated a line roughly midway between the two countries'
rival claims. Honduras said the boundary should be drawn along
the 15th parallel while Nicaragua wanted it to run northeast from
the coast. The new line deviates to the south where it is disrupted
by the territorial waters of the islands awarded to Honduras.
Article 15
a. Opposite or Adjacent Countries, failing an agreement between them, use
Equidistant Line from the nearest points on the baselines
b. Mutual Agreement
c. Historic title or special circumstances
d. Same as Article 12 of 1958 Convention
Other Articles
a. Article 74: delimitation of the EEZ  same as Continental Shelf
b. Article 76(10): not prejudice delimitation of the continental shelf
c. Article 83: delimitation of continental shelf  by agreement, equitable
solution. Parties may not hamper agreement (such as by drilling)
d. Differs from the 1958 Convention
e. Part XV (See Article 298(1)
General Legal Principles  wide discretion
a. Each case unique – no universal binding principles
b. Best solution is agreement between the parties
General Court Procedure p. 187
a. Begin by drawing an equidistance line and then considering if it needs
modification
b. Will not choose a boundary line if it cuts off areas more naturally
belonging to one party
c. Courts not engaged in distributive justice
d. Court may limit the boundary because of Continental Shelves claimed by
other States
Equitable Factors
a. Relationship of land to sea area
i. Proportionality
ii. Natural prolongation/length
iii. Coastal access
iv. Islands
b. Ecological
i. Fish stocks
ii. Reefs
iii. Protection of the marine environment/resource management
c. Special Circumstances
d. Historic Relationship/Prior Conduct
e. Impact on Navigation
f. Security considerations
Co-Operative Arrangements
39
X.
XI.
XII.
a. For exploitation of the sea-bed or fishing resources instead of a boundary
line (a zone where all of their zones overlap)
i. Ex: Japan/South Korea for seabed
ii. Ex: Norway/USSR Barents Sea for fishing
b. Joint exploitation zone for sea-bed/fishing which straddles the boundary
and is part of a boundary settlement
i. Ex: France/Spain Seabed in Bay of Biscay
ii. Ex: Argentina/Uruguay Fisheries
c. Arrangements for exploitation of gas & oil fields lying across the boundary
line
i. UK/Norway
ii. Abu Dhabi/Qatar
d. Arrangements for managing transboundary fish stocks
i. See Ch. 14
Excessive Baseline Claims
a. Drawn other than from low water line
b. Encompassing rocks
c. Straight baselines
i. Drawn other than where there are fringing islands or deeply
indented coastlines
ii. Drawn incorrectly for archipelagos
iii. Excessive length of each segment (>24 NM or >100 NM in
archipelagos)
d. Ex: China straight baselines, Libya closing line off the gulf 50 miles out,
saying military aircraft can’t fly over our EEZ
Prior Notification and Consent Regimes and Other Restrictions
a. Over 40 nations purport to restrict warship passage in the territorial sea
b. Cargo/propulsion type restrictions
c. Restrictions on military activities in the EEZ
i. Exercises
ii. Weapons firings/testing Military Survey
d. Limiting types of ships, numbers of ships
Freedom of Navigation Program (est 1979)
a. Diplomatic protest plus operational assertion
i. Send a navy ship to operate in the territorial sea to challenge the
claim that no foreign warships may be in territorial sea
1. No weapons exercises in our EEZ  then we’ll go do that
2. No overflight of military aircraft in our EEZ  send a plane!
b. Assertions publicized
c. Equal opportunity program
d. Why challenge claims?
i. Customary international law
ii. “Persistent objector”
iii. Preclude adverse precedent
iv. Encourage compliance with UNCLOS
v. Maintain record of State practice
DISPUTE RESOLUTION AND NATIONAL SECURITY
CONCERNS (CH. 17 AND 19)
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I.
Part XV Settlement of Disputes
a. Nature of the problem:
i. Delimitation of boundaries
ii. Fishing
iii. Enclosure to protect declining stocks
iv. Assertion of independent economic nationalism by third world
nations
v. Emergence of distant water fleets
vi. Need for conservation and management
b. US favored compulsory dispute resolution to limit unilateral claims
c. Under the ICJ there is an optional acceptance of jurisdiction clause
II.
Section 1
a. Art. 279: obligation to settle disputes by peaceful means
b. Art. 280: choice of means
c. Art. 282: procedures established by other agreements in lieu OK
d. Art. 283: expeditious exchange of views to solve dispute
e. Art. 284: If parties fail to reach a settlement through agreed procedures,
one of them may invite the other to submit to Conciliation procedure
i. Each party chooses two conciliators and the four choose a 5th
III.
Section 2 – Compulsory Procedures (if parties fail to settle dispute under
Section 1)
a. Art. 287(1): Choice of Procedure
i. International Tribunal for the Law of the Sea
ii. International Court of Justice
iii. Arbitral tribunal constituted in accordance with Annex VII
iv. Special arbitral tribunal in accordance with Annex VIII
b. Default mechanism is arbitration Annex VII
c. U.S. will only accept arbitration, despite being the moving force behind
ITLOS
d. Pursuant to Annex VI, the 21 judges are appointed by majority vote
i. Group of 77 controls
ii. Oversight by U.S. delegation?
IV.
Section 3 Limits and Exceptions to Section 2
a. Art 297(1): coastal State sovereign rights and jurisdiction subject to
compulsory measures only when:
i. navigation, overflight, submarine cables, pipelines (see art. 58)
ii. conforming coastal State laws and regulations
iii. contravention of international rules and standards for the
protection of the marine environment
b. Art 297(2): not marine scientific research
c. Art. 297 (3): not fisheries
d. Opt Out Art. 298:
i. maritime boundary disputes
ii. military activities
iii. UNSC actions
V.
Jurisdiction
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a. Art. 288(1): Juris over interpretation or application of the Convention
b. Art. 288(2): Over an international agreement related to the purposes of
this Convention, which is submitted to it in accordance with the
agreement
c. See Art. 21 of Annex VI
d. Art. 288(3): Sea-Bed Disputes Chamber
VI.
Annex VI: Statute of the International Tribunal for LOS
a. Art. 20 Access to Tribunal: States Parties & “Other entities” if accepted
by all parties
b. Art. 21 Jurisdiction: “provided for in any other agreement”
c. Art. 22 Reference of Disputes subject to Other agreements: treaty or
convention already in force
d. Art 290(1): provisional measures to preserve the respective rights of
parties
e. Art 292 prompt release of vessels: upon posting of a reasonable bond
or other financial security
f.
VII.
Military Uses of the Sea
a. UNCLOS as a peacetime treaty
i. Avoids all discussion of law of armed conflict
ii. Preamble statement
iii. Other bodies of law governing law of armed conflict
VIII.
Laws of War at Sea
a. Hague Peace Conference of 1907
b. Customary International Law
i. San Remo Manual on International Law Applicable to Armed
Conflicts at Sea
IX.
Protecting National Interests At Sea During Peacetime
a. U.N. Charter
i. Article 2(3): all members must settle disputes by “peaceful means”
such that international peace and security are not endangered.
ii. Article 2(4): No use of force against territorial integrity or political
independence (might allow humanitarian)
1. Use of force = aggression
2. Does it cover economic/political/threats? Ambig.
iii. Article 39: Security Council shall determine the existence of any
threat to the peace, breach of peace, or act of aggression…
iv. Article 41: SC may decide what measures not involving the use of
force are to be employed to give effect to its decisions, and it may call
upon the Members to apply such measures. May include: partial
interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio and other means, and severance of diplomatic
relations
v. Article 42: Should the SC consider that measures provided for in Art
41 would be or have been inadequate, it may take any action by air,
sea or land forces as may be necessary to maintain or restore int’l
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peace or security. Actions could include: demonstrations, blockades
and other operations by air, sea or land forces of Members.
vi. Article 51: Self Defense, An Exception to 2(4)
1. If an armed attack occurs
2. Limitations:
a. You must report action to SC  if they say discontinue, you
must stop
b. Temporal Limits
c. Measure must be necessary to security, proportional
d. Must be “armed attack”, economic/political not enough
X.
XI.
XII.
XIII.
Non-military Measures
i. Diplomatic
ii. Economic
iii. Judicial
Military Measures
i. Naval Presence
ii. Right of self-defense
iii. Intervention
iv. Embargo
v. Maritime Quarantine
vi. Anticipatory self-defense
Armed Conflict at Sea
a. Applicability of Law of Armed Conflict
b. General Principles
i. Minimum force necessary
ii. Dishonorable means/treachery forbidden
c. Combatants and Noncombatants
d. Examples:
i. Security Council Resolution 678 allowing response to invasion of
Kuwait
ii. 1982 Falkland Islands (UK)
1. UK established a 200 mile MEZ measured from single
point in middle of islands, Argentina warships forbidden
2. Sunk an AR ship near because it was a threat
3. Zones generally respected
iii. 1980-8 Gulf War: reflagging ships gave rise to questions about a
need for ‘genuine link’
iv. Cuban Quarantine of 1962: US did not get SC consent before
starting quarantine to stop importation of missile parts from Soviet
Union to island
Law of Neutrality
a. Prevent use of their TS/IW as bases of naval operations or a sanctuary
i. Innocent passage of belligerents okay
b. International straits:
c. Archipelagic waters: Belligerents have to avoid acts of hostility in arch
waters
d. Neutral airspace
e. QUESTION: Does it have to be declared war?
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XIV.
Belligerent Rights
a. Right of Visit and Search neutral merchant ships on high seas to
intercept contraband goods
b. Right of Blockade of enemy ports
XV.
Military Uses of the Sea at Peacetime
a. Duty of Routine Law enforcement
b. Deployment of monitoring devices
i. Might be structures, which would be under Art 60 and CS gets
right to authorize in EEZ and on continental shelf
ii. Or you could argue that a right to lay them in the EEZ or
Continental shelf arises by analogy of freedom to lay submarine
cable and pipelines (Art 58, 79, 87)
c. Some states say you need permission in their EEZ to carry out military
exercises
i. IT, Ger, Neth have rejected this
ii. These are unattributed rights, not clear if they are included in Arts
58, 87 (p. 427)
XVI.
USNS BOWDITCH Incident (2001)
a. Military survey ops in Yellow Sea in China’s EEZ
b. Aggressively confronted by PLA(N) FFG and ordered to leave EEZ
c. Returned with armed escort
XVII.
EP-3 Incident (2001)
a. US EP-3 on a routine recon flight 70 miles SSE of Hainan Island (China’s
EEZ)
b. Two Chinese F-8s approached
c. Collision resulted
i. Damage to wingtip
ii. Prop sheared off
iii. Missing nose cone
d. American crew detained, later released
e. Countries released an ambiguous statement to save face
i. US said it was ‘regret/sorrow’ not an apology
f. US/China disagree on legality of over flights by US naval aircraft where
the incident occurred
XVIII. USNS IMPECCABLE Incident (2009)
a. Routine ops in South China Sea in PRC EEZ
b. Surrounded by 5 PRC vessels
c. Left area - returned with armed escort
d. US POSITION
i. Right to conduct military activities in the EEZ
1. Articles 19, 30, 58
2. Long-standing state practice
ii. Due regard: Art. 56
iii. Not a threat or use of force against the territorial integrity or
political independence of PRC
1. Article 19
2. Consistent with UN Charter
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iv. Enhances regional stability
e. PRC POSITION
i. Only freedom of over flight applies in the EEZ
ii. Military activities in the EEZ require coastal state consent
iii. Intelligence collection poses threat to PRC security interests
iv. States must refrain from any threat or use of force against the
territorial integrity or political independence of any state
1. Article 301
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