Coastal State Jurisdiction Research Articles

Svalbard's Maritime Zones: The End of Legal Uncertainty?

AbstractThis paper argues that Norway, by fixing the extension of the continental shelf around the Svalbard archipelago according to criteria set by the Law of the Sea Convention, may see an end to some of the legal controversies regarding the maritime zones around Svalbard. The process of determining the outer limits of the continental shelf area adjacent to Svalbard is adduced as supporting the view that Norway is entitled to establish maritime zones around the archipelago, including an exclusive economic zone. It does not settle whether the provisions of the Svalbard Treaty apply to such zones, but is adduced as supporting the view that Norway may exercise coastal state jurisdiction in these areas.

Climate Change and Renewable Energy from the Ocean and Tides: Calming the Sea of Regulatory Uncertainty

AbstractWe examine the state of ocean energy in 2009 and consider its potential as a source of renewable energy. We provide a background on the current state of technology and commercial development, and examine the implications for law and policy of the re-emergence of ocean energy as a source of renewable energy in 2009. In the 1970s much of the academic and policy literature highlighted jurisdictional uncertainty surrounding ocean energy under international law. This is not the case today. Although some questions remain with respect to navigation rights, most questions surrounding the nature and extent of coastal State jurisdiction in relation to ocean energy have been resolved by the 1982 United Nations Convention on the Law of the Sea. Instead we argue that one of the biggest challenges faced by ocean energy today is the uncertain state of regulation under domestic legal systems. We highlight issues requiring attention by policy-makers and legislators, including managing hazards to navigation, providing further financial incentives for wide-scale commercialisation of this technology (such as increased research and development funding and feed-in tariffs) and managing ocean energy's relatively benign environmental impacts.

The Dynamics of Svalbard Diplomacy

While Norway claims coastal state jurisdiction and exclusive rights to the natural resources in the maritime zones adjacent to the Svalbard archipelago, other states have presented reservations and/or objections against the Norwegian claim through diplomatic correspondence. With this hitherto largely undisclosed diplomatic correspondence as a point of departure, this study addresses the dynamics of foreign policies toward this contested Arctic area. It explores the origins of foreign policies and policy change, and finds that new policies toward the area over the last decades have emerged in distinct epochs. Recurrently, new policies have followed changes in Norwegian legislation and enforcement practice or followed diplomatic efforts by Norway to muster international support.

The international legal framework for marine spatial planning

Increasing demand for ocean resources, both living and non-living, have already lead to loss of biodiversity, habitat depletion and irreversible damage to the marine environment. Furthermore, introduction of new kinds of sea uses, spatial extension of ongoing sea uses and the need to better protect and conserve the marine biological diversity will result in increasing conflicts among the various users, as well as between the users and the environment. Marine spatial planning as a process to allocate space for specific uses can help to avoid user conflicts, to improve the management of marine spatial claims, and to sustain an ecosystem-based management of ocean and seas. This article explores the rights and duties towards exploitation and protection of the marine environment under the jurisdiction of coastal states as reflected in two important global conventions, the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity. Both Conventions provide the main legal framework for marine spatial planning that have to be taken into account in planning at the regional and national level.

UNCLOS and Its Limitations as the Foundation for a Regional Maritime Security Regime

Abstract The 1982 UN Convention on the Law of the Sea (UNCLOS) provides the foundation for an effective regional maritime security regime. However, this large and complex Convention is not without its limitations. There are many examples of apparent non-compliance with its norms and principles, and the United States, as a key player in regional maritime security, is not a party to it. The root causes of problems in East Asia lie in basic conflicts of interest between regional countries on law of the sea issues, the “built-in” ambiguity of UNCLOS in several of its key regimes, and the geographical complexity of the region. This paper discusses key limitations of UNCLOS; particularly the use of territorial sea baselines, navigational regimes, exclusive economic zones (EEZs), and some other issues covered by the Convention, such as piracy, hot pursuit and the responsibilities of flag states. The paper concludes that uncertainty in the law of the sea may grow and that state practice in East Asia, under the influence of domestic politics and regional tensions, may well continue to diverge from more traditional views of the law. The United States, in particular, may find increasing difficulty in maintaining its strict interpretation of navigational regimes and coastal state jurisdiction. East Asia will be critical in shaping developments with the international law of the sea of the future. The challenge in building an effective regional maritime security regime is to recognize the limitations of UNCLOS and to negotiate a regional consensus on aspects of the Convention that are less than clear or where differences of view exist.

Southern Ocean pelagic ecosystems: the era of conservation

The decline of the great whales by the early 1960s allied to the emergence of the “new order” of ocean governance under the United Nations Convention on the Law of the Sea, which limited the availability of some of the most productive fishing grounds by placing them under Coastal state jurisdiction, meant that many traditional fishing nations were looking to alternative targets. Antarctic krill, which in the era of Discovery Investigations had been studied as the whale food, now became a target for commercial fishing along with some fin fish species. Major concerns were expressed at the potential difficulties that might arise, not just for krill but also dependent species, should over-fishing on krill occur. This led to the Biological Investigations of Marine Antarctic Systems and Stocks (BIOMASS) and subsequently to the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). Implementing an ecosystem approach by CCAMLR, the first to be included in any fisheries convention, has provided challenges. More recently the questions of surveillance and monitoring of the fleets in the lucrative toothfish fishery has been the major concern. Developments in fishing, monitoring and the provision of scientific advice for management are discussed.

International Regime and the EU Developments for Preventing and Controlling Vessel-Source Oil Pollution

Summary: Sea-going vessels introduce pollutants into the marine environment in three principal ways: through oil and other cargoes entering the water due to collisions or other maritime casualties; through loading, unloading, and bunkering operations; and through operational discharges of oil which are made deliberately, during normal operation. This article critically assesses the EU developments and the international legal regime for preventing, reducing and controlling vessel-source marine oil pollution. The critical analysis will be in the light of the MARPOL Convention 1973 as modified by the 1978 Protocol, which provides the international rules and standards for controlling pollution from ships, and the 1982 UN Convention on the Law of the Sea (LOSC), which provides prescriptive and enforcement jurisdiction of flag, coastal or port states.

An Indian perspective

The 1982 UNCLOS does not curb military activities in foreign EEZs. By specifically prohibiting certain activities in the territorial sea, it follows that such activities are permissible outside of it. Thus, the “peaceful purposes” clause is only a policy goal. However, due to new threats and technological advances, the authority, capability and jurisdiction of coastal States is being enhanced. Thus guidelines are needed to avoid certain contradictions.

Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research

Abstract This paper reviews differences and overlaps between hydrographic surveying and marine scientific research in the exclusive economic zone (EEZ), including the concept of military surveying. It concludes that recent trends with technology, the utility of hydrographic data and State practice suggest that hydrographic surveying in the EEZ should be under the jurisdiction of the coastal State. Paradoxically arguments for military surveys in the EEZ being outside coastal State jurisdiction appear stronger than those for hydrographic surveying. The paper offers some guidelines related to the conduct of hydrographic surveying in the EEZ.

The Camouco (Panama v. France)

164International tribunals — International Tribunal for the Law of the Sea — Applicable law — United Nations Convention on the Law of the Sea, 1982 — Judicial function — Relationship between Convention and the Rules of the TribunalSea — Exclusive economic zone (“EEZ”) — Coastal State jurisdiction over EEZ — Arrest of vessel — Requirement of prompt release — United Nations Convention on the Law of the Sea, 1982, Articles 73 and 292 — Amount of bond for release of vessel and Master — Whether reasonable — Criteria of reasonablenessTreaties — Interpretation and application — United Nations Convention on the Sea, 1982

The management of the underwater cultural heritage

The underwater cultural heritage (UCH) includes all the material evidence of human activities carried on in the marine environment, particularly as evidenced on the sea floor. The evolution of the UCH is outlined, taking due account of its origins in the world’s traditional societies, and of the process of industrialisation of maritime activities over the past half-millennium. This evolution has occurred in a series of stages, grouped in this paper into the traditional society, the modern age of sail, and the period of steam, iron and steel. The traditional society is regarded as the initial pre-industrial phase of development in all geographical regions. Both the succeeding phases cover the processes of industrialisation of maritime activities over the past half-millennium, respectively before and after the transition from sail to steam power in the 19th century. Approximately half-century stages of technological and economic development characterise both these periods. The surveying of the UCH is discussed first in terms of physical surveying, with particular reference to wreck sites. This has been improved by advances in underwater working, including sonar, seabed mapping, diving and the use of underwater vehicles. It is argued that the valuation of wrecks and cargoes can be conceived in both cultural and economic terms, and that the latter can lead to conflict between salvors on the one hand, and the scientific interest on the other. It is shown that the legal framework for conservation of the UCH is inadequate, both in terms of adjudicating between commercial and scientific interests, and of the jurisdiction of coastal states and the legal protection afforded the UCH beyond coastal state jurisdiction. The initial provisions for integrated management of the UCH, taken in the International Maritime Organisation (IMO), and the United Nations Educational, Scientific and Cultural Organisation (UNESCO), are discussed.

Marine Habitat Protection in Sea Areas under the Jurisdiction of a Coastal Member State of the European Union: The Case of Deep-Water Coral Conservation in Ireland

AbstractThis article proposes a legal framework for the conservation of deep-water coral in the sea area under the coastal state jurisdiction of Ireland. Two potential risks from human activities to the conservation of deep-water coral are considered. These are commercial fishing activity and the exploration and exploitation activities of the offshore oil and gas industry. The article reviews the relevant provisions of the Law of the Sea Convention (LOSC) as they apply to Ireland and mentions several international legal instruments and initiatives that may influence the shape of an effective conservation and management regime. The potential application of European environmental law (the Habitats Directive) to protect deep-water coral in the maritime areas beyond the territorial sea and the interaction between European environmental law and the European common fisheries policy are discussed. This article concludes by suggesting a number of actions that could be taken at European and at coastal state levels to protect the unique ecosystems associated with deep-water coral.

FEATURES OF BIOECONOMICS MODELS FOR THE OPTIMAL MANAGEMENT OF A FISHERY EXPLOITED BY TWO DIFFERENT FLEETS

ABSTRACT. After the extension of the Exclusive Economic Zone, in 1977, to 200 miles, most fish stocks came under jurisdiction of the adjacent coastal states. This development opened prospects of effective management of the open sea fisheries. Coastal states have the right to plan out the operation of so‐called by Clarke and Munro “distant water fishing nations” from their Exclusive Economic Zone. Under some arrangements, a foreign fleet is allowed to harvest the resource in the Exclusive Economic Zone area. Clarke and Munro, in [1987] and [1991], focus on the issue of optimum terms and conditions of access and, in doing so, built a multiobjective model. The main goal of the present work is the development of a more general model including more variables and parameters related to the presence of a domestic fleet as well as a distant water fishing nation. The main difficulty resides in sharing the harvesting between the two fleets. The study responds to the realistic problemof coastal states who own enough resource stocks to allow harvesting by several kinds of fleets. Two optimal scenarios are developed, in each of them a solution is given.

Alone at sea: Chile's presencial ocean policy

Chile has long been at the forefront of international efforts to extend the ocean jurisdiction of coastal state. Its 1947 unilateral declaration of a 200-mile fisher/whaling zone eventually led to the internationally recognised concept of an Exclusive Economic Zone (EEZ) now contained in the 1982 Law of the Sea Convention. Chile is now promoting a new concept, the Presencial Sea. This would give coastal states special interests in the high seas adjacent to EEZs, and the right to take certain unilateral actions in respect of these interests. The specifics of such a concept are still in a state of development, but Chile's own claim, contained in a 1991 national law, would represent a 500% increase over the area covered by the country's existing EEZ. Justification of the need for the concept was in part based on problems with straddling fisheries, but the 1995 UN Straddling Stocks Agreement now provides an answer to some of those issues. Despite Chile's former success in promoting the recognition of EEZs, the concept of a Presencial Sea would in practice create chaos rather than stability in international law, and would result in the unravelling rather than the evolution of ocean governance.

Historic Salvage Law Revisited

Litigation involving the R.M.S. Titanic highlights the critical need for a more stable legal regime to protect shipwrecks, their cargo, and other aspects of underwater cultural heritage. The general maritime law, as articulated by admiralty courts in the United States, has begun to qualify salvage awards in terms of compliance with archaeological standards. Salvage law, however, does not provide language and rules readily applicable to historic wreck and related material. We are, therefore, in a period of transition between a heavy reliance on the common law of "treasure" salvage and the development of a truly general, universal regime to govern underwater heritage. At the center of this development is the Draft UNESCO Convention on the Protection of the Underwater Heritage, based upon the Buenos Aires Draft Convention of the International Law Association. The emerging regime of conventional law provides authority, bases of jurisdiction and other forms of international cooperation, to enforce a set of rules for protection and scientific management of heritage. Critical issues await further negotiations, including the definition of protected heritage, an accommodation of commercial salvage interests within the prescribed conservation and management standards, the status of warships, and the terms of coastal state jurisdiction within the permissible limits of the 1982 UNCLOS.

The Chinese Marine Environmental Protection Law

ABSTRACT The concept of marine environmental protection and its development was introduced to the People's Republic of China in the 1980s. This followed the enactment of the Environmental Protection Law (1979, 1989), a revision to the Constitution, and the adoption of international environmental laws. The Chinese Marine Environmental Protection Law (MEPL) was promulgated in 1983 after China signed the 1982 U.N. Convention on the Law of the Sea. Both national environmental laws and various international conventions and agreements influenced the MEPL. For example, the MEPL closely follows provisions outlined by the International Convention for the Prevention of Pollution from Ships (MARPOL) and other international treaties. China has concerns about marine pollution not only within its own territory but outside its jurisdiction as well. Thus, the MEPL explicitly states that the provisions of the law apply to areas beyond China's territorial sea. As provided by the MEPL, China has the right to assert jurisdiction over foreign vessels beyond its territorial sea when they engage in activities that cause pollution to China's environment. However, questions arise as to China's coastal state jurisdiction. China's view on sovereignty is a controversial issue, and it is unclear whether the MEPL can be invoked to confer liability in waters outside of China's jurisdiction. Despite uncertainty over the jurisdiction issue, the MEPL is a significant and comprehensive law for marine protection. It regulates five major sources of marine pollution: coastal construction projects, off-shore oil exploration and exploitation, land-source pollutants, vessel pollution, and the dumping of wastes at sea. The purpose of this paper is to provide a brief comparison of the MEPL and relevant international laws and an understanding of critical issues covered by the MEPL.

Innocent passage —past and present

The regime of innocent passage was developed to accommodate conflicting State interests in the territorial sea. Security and, more recently, environmental interests of coastal States, are opposed to the interests of maritime States in minimizing interference with navigation. This article discusses the regime of innocent passage in international law through the analysis of relevant treaty rules, including recent developments at IMO, and state practice. Specific attention is given to passage by warships and to coastal state jurisdiction over pollution by vessels in general and over ships carrying hazardous cargoes in particular.

Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International, 1998), 632 pages

Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International, 1998), 632 pages Doris König Doris König Search for other works by this author on: Oxford Academic Google Scholar Yearbook of International Environmental Law, Volume 10, Issue 1, 1999, Pages 823–826, https://doi.org/10.1093/yiel/10.1.823 Published: 01 January 2000

The NAFO Model of International Collaborative Research, Management and Cooperation

Following extension of fisheries jurisdiction to 200 nautical miles by Coastal States in the Northwest Atlantic in 1977, the Northwest Atlantic Fisheries Organization (NAFO) was established through a multilateral convention. NAFO differed substantially in form and modalities from its predecessor fisheries organization, International Commission for the Northwest Atlantic Fisheries (ICNAF), which had been responsible for international fisheries management in the Northwest Atlantic from 1949. The structure of NAFO was designed to reflect the circumstances of Coastal State jurisdiction over fisheries in much of the area, the existence of several self-contained stocks outside 200 miles on the Flemish Cap, and the existence of several stocks which straddle the boundary between the Coastal States jurisdiction and the waters outside the 200-mile zones of the Coastal States. NAFO functioned relatively smoothly during its first years (1979–85). From l985 to the early1990s, decisions by the Fisheries Commission of NAFO were ineffective because of extensive use of the objection procedure by one member of NAFO. During the past two years, this conflict has abated. Progress has been made in devising a more effective management and enforcement regime. Recent international legal developments, especially the 1985 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, will have significant implications for the functioning of NAFO. In particular, the implementation of a precautionary approach to management will pose significant challenges and opportunities for NAFO.

The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement

AbstractThe 1995 UN Straddling and Highly Migratory Fish Stocks Agreement is designed to implement the management principles of the LOS Convention applicable to these stocks. This contribution focuses upon those aspects of the 1995 Agreement related to surveillance and enforcement, dispute settlement and the role and competence of regional fisheries management organisations (RFOs). The Agreement seeks to delegate fisheries management authority over straddling stocks to the RFOs. A key issue that will confront an RFO will be compatibility of management measures inside and outside the 200-nautical mile zone. An RFO will have to choose between a "top down" (the RFO managing the entire stock) or a "bottom up" (the coastal state having independent authority within 200 nautical miles) approach. While the 1995 Agreement is careful not to trample upon coastal state jurisdiction within 200 nautical miles, the preferred resource management approach supported by the 1995 Agreement and this contribution is the "top down" model.