Freedom Of High Seas Research Articles

Marine Biodiversity Management under the UNCLOS: Scope and Challenges in the era of blue Economy Policy

Developing a governance framework for marine biodiversity, explicitly to Marine Genetic Resources (MGRs) is crucial for the conservation and sustainable use of marine biodiversity. Addressing the challenge of protecting biodiversity in the global ocean requires a sound knowledge and understanding of the complex marine environment with a sound support for ocean governance, including data development and expert consultation, that could also contribute to the UN Decade of Ocean Science for the proposed 2021–2030 Sustainable Development. Future challenges include capacity building and new approaches to incorporate traditional knowledge. Even though the CBD framework put forward a legal framework for the governance of biological diversity from within national jurisdiction, but the issue of biodiversity governance from beyond national jurisdictions remained unaddressed. The United Nations Convention on the Law of the Sea (UNCLOS) framework leaves behind the marine scientific research activities under the ‘freedom of high seas’ regime, but the international community has become increasingly aware of the growing threats to marine biodiversity in ABNJ and been conferring alternatives to conserve and sustainably use it. UNCLOS proposes to promote sustainable use and conservation of marine living resources especially marine mammals and highly migratory species but specifically silent on marine genetic resources and promotion of marine scientific research in ABNJ for the efficient utilization of resources. UNCLOS lacks modern conservation principles (such as the ecosystem approach and precautionary principle) and conservation tools (such as strategic environmental assessments and marine spatial planning) that is part of achieving sustainable development goals. This paper aims to do critical study of UNCLOS provisions and the international legal principles and economical concepts to bring a balance between competing values, perspectives and interests in the conservation and sustainable governance of marine biodiversity is aimed through this paper.

국가관할권 이원지역의 해양생물다양성(BBNJ) 국제문서에 대한 논의 동향 및 주요 쟁점에 관한 연구

Marine biodiversity in the area beyond national jurisdiction(hereafter ‘BBNJ’) refers to biodiversity that exists in sea areas such as high seas or the area that are not under national jurisdiction. Since 2018, the United Nations has held intergovernmental conferences to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, with a view to developing the instrument as soon as possible. The BBNJ international instrument cannot but be paid attention as an international agreement that shakes the foundation of the principle of freedom of high seas, which has been firmly maintained since the adoption of the UN Convention on the Law of the Sea in 1982.<BR> The work on BBNJ international documents is currently progressing rapidly. International non-governmental organizations, such as the European Union, developing countries, IUCN, and the WNF, which are participating in intergovernmental conferences, are urging the establishment of the BBNJ international instrument as soon as possible. In addition, international organizations such as the International Maritime Organization, Food and Agriculture Organization of the United Nations, regional fisheries organizations and the Convention on Biological Diversity also pledged active participation and cooperation in the process of enacting the Convention. Therefore, BBNJ international instrument are expected to be enacted sooner or later.<BR> If the BBNJ international document is officially adopted, it can have a significant impact on various marine activities and related industries in the high seas, such as deep-sea fishing, international shipping, and ocean research in Korea. In preparation for this, this paper will first look at the discussion trends of BBNJ international documents. Next, I would like to examine the main issues of the BBNJ international document. Finally, based on these contents, I would like to derive implications for protecting domestic maritime activities and related industries.

Maintaining Freedom of Navigation and Overflight in the Exclusive Economic Zone and on the High Seas

Efforts to expand coastal State jurisdiction to include security jurisdiction in the EEZ were soundly rejected by a majority of the nations that participated in the UNCLOS negotiations The delegates present achieved consensus on provisions that accommodate the resource interests of the coastal State in the EEZ without diminishing user State interests in freedom of navigation and other internationally lawful uses of the sea in the zone. Continued efforts by some States to reinterpret the Convention to unilaterally and unlawfully advance their national interests in the EEZ impinge on traditional uses of the oceans by all States and are inconsistent with international law, long-standing state practice and the intent and negotiating history of UNCLOS. If these efforts succeed, the Convention will unravel over time and the international community will once again be plagued by a new wave of excessive maritime claims. Coastal State competency in the EEZ is strictly limited to resource rights, jurisdiction over resource-related offshore installations and structures, marine scientific research, and protection of the marine environment. Coastal States do not retain security jurisdiction in the EEZ, and may not regulate lawful military activities in the EEZ that are consistent with the UN Charter, UNCLOS, the Chicago Convention, and other relevant international law instruments. The creation of the EEZ was a package deal—coastal States were granted exclusive resource rights and user States retained the high seas freedoms of navigation and overflight, and other lawful uses of the seas associated with those freedoms, which have always applied beyond the territorial sea.

STRENGTHENING INTERNATIONAL LAW AS A GUARANTEE FOR HIGH SEAS FISHERIES CONSERVATION

High seas is one of the ocean areas beyond of national jurisdiction. The implication of that definition made high seas turn into a free access to all states. One of freedom of high seas had known of yore is freedom of fishing, as if high seas fishery is inexhaustible. However, technological advances in fishing gear and people demand towards ocean fish causing overfishing and Illegal, Unreported, and Unregulated (IUU) Fishing are unavoided. Living resources and the environment of the high seas are more susceptible due to weak regulation on the UNCLOS 1982 which are cooperation for conservation and no restriction on exploitation. With that regard, international law-making concerning management and conservation concept based on the high seas fisheries sustainability need to be done. This article was written by normative research conducted with library studies by maximizing data in any journals and books. The concept of Marine Protected Areas (MPAs) and the establishment of Conservation Zone in the high seas is considered to have potential for fisheries management development that guarantee the sustainability of diversity high seas fisheries. Keywords: conservation; fish; high seas; UNCLOS.

Reasonable Restrictions on Freedom of High Seas by “Marine Protected Areas on the High Seas”: An Empirical Research

The UN member states have been consulting on the establishment of high seas MPAs under the BBNJ Agreement since December 2017.This issue brings about the potential conflicts between the jurisdiction of the high seas MPAs and the traditional freedom of the high seas. Although it is generally accepted that the freedom of the high seas can be reasonably restricted, it is acknowledged that there are great controversies among States on the specific forms, approaches and applicable scopes of the restrictions of the high seas freedoms by the high seas MPAs. At present, there are four recognized high seas MPAs in the world. The practice of these four MPAs contributes positively to the interpretation of the reasonable restrictions on the freedom of the high seas. Accordingly, this paper concludes that the international community should gradually carry forward future restrictions on the freedom of the high seas with some suggestions.

Obligations of ‘Due Regard’ in the Exclusive Economic Zone: Their Context, Purpose and State Practice

Abstract The exclusive rights of the coastal state over the natural resources in the exclusive economic zone (EEZ) coexist with the high seas freedoms of communication of other states. This particular coexistence of state competences is a distinguishing feature of the 200-mile zones. Articles 56(2) and 58(3) United Nations Convention on the Law of the Sea (LOSC) require that coastal states have ‘due regard’ to the rights, freedoms and duties of other states in the zone, and vice versa. It is suggested that the two provisions are not ‘dormant’. State practice indicates the contrary, as well as future paths for clarification. The obligation to have ‘due regard’ constitutes a linchpin in the conceptual underpinnings of the EEZ, and requires an interpretation of the concrete provisions that are applicable, in keeping with the Convention’s nature as a strategic ‘package deal’ with a particular bearing on international peace and security.

Renewable energy from the high seas: Geo-spatial modelling of resource potential and legal implications for developing offshore wind projects beyond the national jurisdiction of coastal States

Offshore wind energy projects are currently restricted to the exclusive economic zones of coastal States. Recent advances in technology are raising the prospect of utilising excellent wind resources on the high seas.Using a global geo-spatial model we identify potential resource areas for this. In the shallow water case for bottom fixed foundations the largest locations are found on the Mascarene Plateau in the Indian Ocean and the Grand Banks in the North Atlantic. The deep water case for floating platforms identifies the largest regions on the Grand Banks/Flemish Cap and Rockall Bank/Hatton Ridge, both in the North Atlantic. The overall legal framework for wind energy projects on the high seas is the United Nations Convention in the Law of the Sea. Flag states will play a central regulatory role for high seas wind energy developments. There is the danger that flags of convenience might evolve and unduly undercut environmental and safety standards that are in place for projects on the territorial sea and EEZ. Such abuse of high seas freedom could compromise the UNCLOS principle of ‘due regard’. Marine spatial planning approaches and the establishment of cooperative mechanisms, led by the IMO, could safeguard against such potential misappropriation.

Regulating Shipping in the Arctic Ocean: An Analysis of State Practice

The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.

The High Seas Freedom to Lay Submarine Cables and the Protection of the Marine Environment: Challenges in High Seas Governance

The freedom to lay submarine cables and pipelines, one of the most venerated high seas freedoms under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), faces an uncertain future under the new international legally binding instrument (ILBI) being negotiated in the United Nations. UN General Assembly Resolution 72/249, authorizing the intergovernmental conference for the new ILBI, does not expressly mention submarine cables or pipelines but states that “the work and results of the conference should be fully consistent with the provisions of” UNCLOS. The issues in a new ILBI that are likely to have an impact on the freedom to lay submarine cables and pipelines in areas beyond national jurisdiction are (1) area-based management tools, and (2) environmental impact assessments (EIAs), which are mechanisms used to protect and preserve the marine environment and biodiversity. The challenge for high seas governance (and indeed, the perennial challenge for the law of the sea) is how to balance these two ostensibly competing, but equally valuable, interests: the protection of the marine environment and biodiversity and the high seas freedom to lay submarine cables in areas beyond national jurisdiction.

Невоенные угрозы безопасности в Арктике

Невоенные угрозы безопасности в Арктике

The Northern Sea Route and the Seaward Extension of Uti Possidetis (Juris)

Once considered impassable due to icebound conditions of the High Arctic, receding ice attributed to climate change and projections of ice-free polar seasons in coming decades may soon make the Northeast Passage a commercially viable conduit for seafaring traffic. A major stretch of this waterway atop Russia, straddling Eurasia from Providence Bay to Murmansk, passes through important geographic bottlenecks that scantily ever have been traversed by non-Russian ships, until most recently. This stretch, referred to as the Northern Sea Route, is claimed by Russia as historic waters, making its use subject to Russia’s complete sovereign decisions. The United States regards the Route as an international strait connecting two high seas, making transit free and open to all ships, military or commercial, in accordance with traditional High Seas freedoms and a newer right of transit passage. This article considers the prospect of a coming clash in the waters of the High Arctic over the legal status of the Northern Sea Route. Through analogous application of the Roman law principle of uti possidetis juris, a principle adapted to international law, but with serious criticism, this article argues that Russia’s claim of sovereign control over the Route finds legal support but is pragmatically and strategically weak. Existing lacunae in the governing international law of the sea nevertheless make consideration of the principle valuable, particularly components of the principle that emphasise factual circumstances, called effectivités, which support Russia’s claim. The creeping pelagic significance of this principle, historically tethered to terrestrial border delimitations and more recently to factual patterns involving gross human rights abuse, is affirmed, notwithstanding doctrinal criticisms about its topical application.

Marine Scientific Research: Its Potential Contribution to Achieving Responsible High Seas Governance

Abstract The absence of an internationally agreed definition for marine scientific research (MSR), coupled with the high seas freedom status of ‘scientific research’, raise, inter alia, questions of marine environmental protection on the high seas. The international community finds it particularly difficult to deal with activities on the high seas generally and especially so when these involve high seas freedoms. This difficulty, usually described as one of high seas governance, is manifesting itself in a growing range of contexts, and constitutes one of the principal challenges now facing the LOSC. This article briefly describes the response by the parties to the London Convention 1972 and its 1996 Protocol to a MSR activity proposed to be conducted on the high seas, highlights certain implications of this response for MSR specifically and high seas freedoms generally, and suggests a consequent way forward in addressing the broader high seas governance issues under the LOSC.

Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas

Abstract This article explores developments in connection with marine protected areas (MPAs) on the high seas, beginning with a brief survey of existing high seas MPAs, recent initiatives such as the designation of the South Orkney Islands MPA, the creation of a network of OSPAR MPAs and the work undertaken by the UN General Assembly on developing a framework for oceans governance in areas beyond national jurisdiction. It considers: the absence of a clear legal basis for the creation of MPAs on the high seas; the relationship between MPA designation and traditional high seas freedoms; and the complex jurisdictional arrangements that govern activities on and in the high seas.

Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China's Exclusive Economic Zone

China's views on coastal State authority in the exclusive economic zone (EEZ) are not supported by State practice, the negotiating history of the United Nations Convention on the Law of the Sea (UNCLOS), or a plain reading of Part V of the Convention. All nations may legitimately engage in military activities in foreign EEZs without prior notice to, or consent of, the coastal State concerned. Efforts were made during the negotiations of UNCLOS to broaden coastal State rights and jurisdiction in the EEZ to include security interests. However, the Conference rejected these efforts and the final text of the Convention (Article 58) ultimately preserved high seas freedoms of navigation and overflight and other internationally lawful uses of the seas related to those freedoms, to include military activities, in the EEZ.

Area-based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Sea Area Concept

AbstractArea-based management is an important tool to improve integrated conservation of high seas biodiversity. While States clearly support the need to protect high seas biodiversity, some States remain reluctant to adopt internationally binding measures that may have an impact on high seas freedoms. Since there is limited experience to date with the application of area-based management tools on the high seas, this article examines the practical implications of establishing such measures through an analysis of the International Maritime Organization’s (IMO) particularly sensitive sea area concept. After providing an overview of the legal complexities associated with the designation of high seas marine protected areas, this article introduces the PSSA concept and identifies the unique features that make it appropriate as a measure for protecting high seas biodiversity. The core of the analysis is an examination of State practice within the IMO in the context of the potential designation of a PSSA in the Southern Ocean.

Is the International Seabed Regime of the LOSC 1982 an Objective Regime Valid Erga Omnes? (Reviewing the Legal Status of Seabed from the Perspective of the Law of Treaties)

The existence of the Area as a place who has a big natural resources potention, becomes the conflict source especially about the exploration rights in that place. UNCLOS III gave the solution to the status of the Area as a Common Heritage of All Mankind that set in the special regulation regime. The born of the regime got the opposition from the United States of America and several countries whose want the Area serve by “first come first serve regime” or the freedom of high seas. The other problem is the special regime can be applied by the states whose not the party of UNCLOS III like United States of America?

High Seas Fisheries Governance: A Framework for the Future?

This paper focuses on the importance of accountable governance arrangements to successfully manage high seas fisheries. It proposes replacing the current right of open access to high seas fisheries with defined property rights issued to nation states and managed within a governance framework designed to optimise environmental and economic outcomes from the use of high seas fisheries. We propose that the high seas freedom to fish be transformed to a right to share in the net wealth generated from sustainable harvest of high seas fisheries. Management of high seas fisheries should ensure that: (i) all nations have a right to benefit from high seas fisheries, (ii) all harvesting is environmentally sustainable, (iii) fisheries resources are used efficiently, and (iv) management agencies are accountable. Rather than relying on the cooperation of nations through regional fisheries management organisations (RFMOs), we suggest the establishment of accountable management organisations of which nations are benefici...

A Korean perspective

The adoption of the EEZ in the 1982 UNCLOS represents the culmination of an effort by some parts of the international community to separate “jurisdiction” over the natural resources in offshore waters from the “sovereignty” manifest in the territorial sea. It is clear that the EEZ is a zone that is neither territorial waters nor wholly high-seas. It is also a zone in which competencies are balanced between the need of coastal States to have sufficient authority to exploit and manage their economic resources and the need of all other States to retain high-seas navigation and communications freedoms and uses related to such freedoms. From South Korea's perspective, the EEZ is a sui generic zone in which military and intelligence activities are limited or not allowed without the consent of the coastal State. This is equally applicable in peace and war. Although several States stress that Article 58 of the 1982 UNCLOS permits such activities, increasing EW and IW capabilities may result in reinterpretation of certain provisions of the 1982 UNCLOS.

Evolving principles of international fisheries law and the north pacific anadromous fish commission

International fisheries law, now shaped by the 1982 Law of the Sea Convention, has been subject to a philosophical evolution in the latter half of the twentieth century, from protecting freedoms of high seas fishing nations to supporting proprietary rights of coastal nations. This shift is illustrated by events in North Pacific international anadromous stocks management, which have recently culminated in the restrictive Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, the founding instrument of the North Pacific Anadromous Fish Commission (NPAFC). Organizations like NPAFC will shape future international fisheries management for a world with growing human populations and growing potential for international conflicts over natural resources. The place of the NPAFC Convention in the law of the sea regime, the relationship between NPAFC and other international resource management bodies, and the flexibility that the organization maintains through its future management challenges will cycle into future international legal philosophy on cooperative marine resource management.

The Collision Avoidance Regulations as a Regulator of International Navigation Rights: Underlying Principles and their Adequacy for the Twenty-first Century

The high seas freedom of navigation, and the lesser rights of transit, archipelagic sea lane and innocent passage applicable in straits used for international navigation, archipelagic sea lanes and the territorial sea respectively, have been said to embrace two notions: ‘one is the right to make progress over the surface of the sea, the other is the duty to make progress only in an orderly way, as to speed, steering, lights and so on – the manner of operation of the right’.