Provisions Of UNCLOS Research Articles

Some Observations on the ‘Ambulatory’ Nature of the Normal Baseline

Abstract From the start of the discussion about the implications of sea level rise for the entitlements of coastal States to maritime jurisdictional zones, the question of the interpretation of Art. 5 unclos (and the corresponding rule of customary international law) on the ‘normal’ baseline of the territorial sea became an essential element of the debate. The then generally accepted interpretation of Art. 5 assumed that this normal baseline, viz., the low-water line along the coast, when physically moving as a result of sea level rise, would have the effect of also moving the outer limits of the maritime zones. This interpretation became known as the ‘ambulatory’ baseline, and was inter alia adopted by the ila Committee on Baselines in the Law of the Sea and the ila Committee on Sea Level Rise and International law. However, this interpretation has recently been challenged by a few authors, as well as, more importantly, by some States. This contribution briefly examines State practice, and concludes that the normal baseline of the territorial sea is indeed ‘ambulatory’ under the current law as reflected in Art. 5 unclos. However, a significant change in the interpretation (and application) of this provision is developing in State practice, to the effect that coastal States affected by sea level rise should be allowed to maintain their current normal baselines, as determined in accordance with the provisions of unclos, notwithstanding future changes to the low-water line. If this changed interpretation is not also reflected in a change of the text of Art. 5 (which would involve an amendment of unclos under its articles 312 or 313), we may be witnessing an example of tacit amendment (modification) of a treaty provision by subsequent practice. At the same time the relevant rule of customary international law would then be changed as well.

The Regime of Enclosed or Semi-Enclosed Seas with Special Regard for the Mediterranean Sea

Abstract unclos Part xi, relating to “enclosed or semi-enclosed” seas, is composed of only two provisions. Art. 122 provides for a definition that lends itself to some perplexities from the logical and terminological point of view. Art. 123 invites the States bordering such seas to coordinate their activities in certain subject matters, namely fisheries, protection of the marine environment and scientific research. In fact, Art. 123 invites bordering States to do something that, in most cases, is already mandatory under other unclos provisions. The poor substantive content of Part ix may be explained considering that it is a compromise result between the position of those States that proposed a special regime for enclosed or semi-enclosed seas and those that preferred to avoid the creation of a new category of seas. While the purpose of Art. 123 is only “promotional”, States bordering some enclosed or semi-enclosed seas have already put in place various forms of regional co-operation. This is the case of cooperation established in the Mediterranean Sea in the fields of protection of the environment (so-called Barcelona Convention system and accobams) and fisheries (General Fisheries Commission for the Mediterranean). Gaps remain in other fields, such as the protection of underwater cultural heritage, and some questions relating to navigation in certain environmentally sensitive areas still need to be addressed at the world level.

Testing The Suitability of The Indonesian and Vietnamese Baselines under UNCLOS

The method for drawing baselines for the determination of maritime areas has been regulated in UNCLOS through three legal baselines, namely Normal Baselines, Straight Baselines, and Archipelagic Baselines. Respectively these approaches have been modified to suit the typical geographic features of a coastal state. However, the determination of baselines by several states is inconsistent with applicable regulations and has the potential to cause disputes with neighboring states. Indonesia has established straight baselines based on archipelago theory, on the other hand, Vietnam has established straight baselines. This article tries to identify the suitability of determining the baseline from Indonesia and Vietnam based on UNCLOS provisions and concludes that there was a violation of Article 7 of UNCLOS by Vietnam.

The Indonesia's Strategies For Exclusive Economic Zone (EEZ) Sovereignty With 1982 UNCLOS Provisions: North Natuna Sea

North Natuna Sea's abundance of natural resources provides a tremendous pull for diverse parties, who, for the sake of profit maximization, are willing to commit any crime. A further report found that the claims of South East Asean countries and China on Indonesia's Exclusive Economic Zone (EEZ) waters in North Natuna Sea are completely divorced from the attractiveness of the natural resources. Considering the strategies to resolve any differences and the disputes between South East Asean countries and China in a peaceful manner through dialogue, affirming commitment to the goals and principles of UNCLOS, 1982, this paper provides a systematic review of the strategies as a the treaty of amity and cooperation in the South East Asian model for Indonesia’s stability which promotes agency and reflective practice. Comparing the current practice of the current waters’ cases in North Natuna Sea to the international stabilities reported in the literature, this review suggests that North Natuna Sea needs adopt two strategies that are concurrently executed and mutually supportive. The first is a diplomatic strategy consisting of two simultaneous steps, the first of which involves efforts to expedite the implementation of negotiations and the conclusion of a territorial boundary agreement between Indonesia and the Philippines, India, Malaysia, Palau, Singapore, Thailand, Timor-Leste, and Vietnam. sea. The second strategy is a defense diplomacy approach to China, by leveraging Indonesia-China bilateral defense cooperation and multilateral defense cooperation venues such as ARF and ADMM Plus where China is a discussion partner. Key words: Indonesia, Exclusive Economic Zone (EEZ), Sovereignty, 1982 UNCLOS Provisions, North Natuna Sea

BBNJ Agreement: High Seas Biodiversity as a Common Heritage (of Mankind)?

The UNCLOS does not expressly address genetic resources. In 2017, the United Nations convened a conference to negotiate an Agreement on conservation and sustainable use of BBNJ. Based on UNCLOS provisions, which prohibit the modification of the principle of freedom on high seas, it is not possible for marine genetic resources on high seas to be ruled as res communis humanitatis, but as res communis.

The Italian Law Authorizing the Creation of an Exclusive Economic Zone

Abstract With Law No. 91/2021 Italy authorized the establishment of an exclusive economic zone, an epoch-making change in Italian foreign policy. For decades, the governments of the Peninsula, conditioned by the interests of national fishermen and by the advice of the Navy, have pushed for a limitation of the extension of jurisdiction in the Mediterranean. There is no doubt that in semi-enclosed seas the EEZ regime is more difficult to apply, but by now almost all the coastal States of this sea have declared an EEZ or are preparing to do so. The regime will coincide with the provisions of UNCLOS on the subject. The most delicate problem is undoubtedly that of delimitation. In the past, Italy has negotiated disadvantageous delimitation lines of the continental shelf, which are now being proposed, by the States with which such agreements have been concluded, as “all purposes” delimitation lines. The problem arises for the moment essentially with Tunisia, since in the other cases the agreements are with EU countries, and with Algeria, with which there are no agreements in force but which has declared an EEZ that overlaps with areas potentially subject to Italian (and other countries’) jurisdiction.

Consistency and Predictability in International Tribunals Decision on Maritime Delimitation Cases From 2009 to 2019

The rules of maritime delimitation are of paramount importance in the law of the sea because coastal states will not be able to effectively exercise their legal uses of the sea without definite boundary. However, as customary law, Articles 15, 74 and 83 of UNCLOS did not provide much guidance in any particular delimitation case. Meanwhile, concluded bilateral agreements had not created enough practice of law to qualify as customary law. Thus, it is left to the international tribunals to form the delimitation rules. However, cases decided by the international tribunals show a lack of consistency in applying two main methods based on relevant provisions of UNCLOS. Both equidistance and the equitable principle has been used on plenty of occasions, as well as other criteria. This study aims to examine whether the approach of international tribunals to maritime delimitation cases has become more predictable and consistent during 2009-2019. Limited to the cases decided by the ICJ, ITLOS, and PCA, the study found that there is no significant deviation from the application of Article 15 UNCLOS within the proceedings of the cases. However, the unpredictability of the decision in the Ghana/Cote d’Ivoire case shows that the Court is more focus on the consistency of methodology than principle matter. In applying Article 74 and 83 UNCLOS, the Tribunals also put more effort into ensuring a consistent methodology. However, plenty of discretion also available for the Tribunals. Although such discretion is crucial, it needs to utilise carefully to maintain the consistency and predictability of the law. Without the consistent interpretation and predictable translation of UNCLOS from the International Tribunals, it is impossible to preserve the Law of Maritime Delimitation.

The Cross-Fertilization of UNCLOS, Custom and Principles Relating to Procedure in the Jurisprudence of UNCLOS Courts and Tribunals

Cross-fertilization of international law entails interaction of norms in international law and can occur in the context of interaction between different sources of law; different branches of international law or different subject-matter areas; and interaction between a treaty norm belonging to a one area of international law and a customary norm arising from another area of international law. There are different avenues for cross-fertilization of international law: it can result from the application of Art. 31 (3) (c) of the Vienna Convention on the Law of Treaties (VCLT)1 in the process of interpreting a particular treaty, from the application of other rules of international law together with a particular treaty or from reference to the jurisprudence of other international courts or tribunals by adhering to the approach adopted in this jurisprudence. This article examines the question of cross-fertilization of international law in the context of the jurisprudence of the courts and tribunals operating within the dispute settlement system established under the UN Convention on the Law of the Sea (hereinafter ‘UNCLOS’ or ‘Convention’).2 It will demonstrate how these adjudicatory bodies have employed Art. 31 (3) (c) VCLT, Art. 293 UNCLOS which explicitly enables them to apply other rules of international law not incompatible with the Convention, and the international jurisprudence in order to interpret and apply the UNCLOS while situating it the broader context of international law. Note will be taken of UNCLOS provisions incorporating or referring to other rules of international law which also contribute to the cross-fertilization of international law.

The Timor Sea Treaty: An Australian Perspective

Abstract In March 2018, Australia and Timor-Leste signed a treaty in a ceremony in New York, witnessed by the UN Secretary-General, which will permanently delimit their maritime boundaries and establish a special regime over the Greater Sunrise gas fields in the Timor Sea. Not only does this Treaty represent an important milestone in the relationship between the two States, it also marks the successful conclusion of the first-ever conciliation conducted under the dispute resolution provisions of the UN Convention on the Law of the Sea (unclos). How this untested process led to the ending of the long-running and complex dispute over maritime delimitation in the Timor Sea merits further consideration. This article will provide an Australian perspective on these historic proceedings, focussing on how the process led to a positive outcome for the Parties and the key features of the agreement reached. We will begin by outlining briefly the background to the dispute between Australia and Timor-Leste. We will then consider the nature of the conciliation provisions of unclos, and what makes them unique. We will then explore some of the procedural aspects of the Timor-Leste/Australia Conciliation which led to a successful outcome in the proceedings. Finally, we will outline the key elements of the agreement reached between the Parties.

Legitimacy, Jurisdiction and Merits in the South China Sea Arbitration: Chinese Perspectives and International Law

One of the most significant events in China’s history of engaging international law was its legal defeat in the South China Sea Arbitration case. The case was brought by the Republic of Philippines on its disputes with China concerning maritime entitlements in the South China Sea. The Arbitral Tribunal ruled in favor of the Philippines, first on the jurisdiction and admissibility issues in October 2015, and finally on the merits in July 2016. China not only refused to accept the Tribunal’s authority, but also vigorously attacked the final award as being invalid and even illegal. This paper critically examines the different views, particularly the Chinese perspectives, on three major legal aspects of this case, including (1) the legitimacy of the Arbitral Tribunal, (2) whether the Tribunal had jurisdiction over the case, and (3) whether the Tribunal erred in applying UNCLOS on certain important legal issues concerning the merits of the case, in light of the two awards (the SCS Jurisdiction Award and the Merit Award) and the relevant rules and doctrines in international law. The paper then argues that, while the Tribunal’s own legitimacy seems to be unquestionable, whether it had jurisdiction over the dispute is debatable. Most likely it has, but China’s certain arguments against the jurisdiction are worthy of discussion. However, the final award’s interpretation and application of certain provisions of UNCLOS are problematic and possibly erroneous. The analysis, however, suggests that China would have been in a much better position on the legal front had it formally participated in the case from the jurisdictional stage. Finally, the paper discusses the implication of the arbitration on China’s attitude toward international law.

Maritime Boundaries Delimitation and Dispute Resolution in Africa

Africa’s borders are bestride with many challenges ranging from religious and terrorist movements to cattle rustling, military conflicts to human trafficking. The challenges are endless, but whether the boundary disputes are terrestrial or maritime, they are mostly about security and prestige. Growing human population, political awareness and environmental challenges mean that the problems are likely to heighten, unless they are resolved. Despite the provisions of UNCLOS, Africa has several unresolved maritime boundary disputes. In this light, this article aims to examine the African situation, and discuss the challenges involved in the delimitation and management of maritime boundaries in Africa. This article presents the issues, causes, essence and the security imperative of maritime boundary disputes in Africa.

Морские научные исследования и программа Арго: международно-правовое регулирование

The article is devoted to the consideration of an issue of “marine scientific research” as it is regulated under international law and the applicable Russian legislation. Particular attention is paid to the analysis of the relevant provision of the 1982 United Nations Convention on the Law of the Sea (hereinafter UNCLOS) governing the conduct of marine scientific research in territorial sea, exclusive economic zone, continental shelf, the international seabed area beyond national jurisdiction, high seas. The article is outlined the general principles of the conduct of marine scientific research which shall be conducted exclusively for peaceful purposes. Draws attention to marine scientific research in the exclusive economic zone and on the continental shelf which shall be conducted with the consent of the coastal State. Emphasis is made on the analysis of legal aspects of the Argo Programme, launched for the purpose of conducting marine scientific research with the use of drifting buoys. The article considers practical and legal issues that arise in connection with the adoption in light of the relevant provisions of UNCLOS of the of international documents related to the Argo Programme, namely: Resolution XX-6 of the Assembly of the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (1999); the Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly regarding the deployment of profiling floats in the High Seas within the framework of the Argo Programme (2008). In accordance with it, an IOC Member State must be informed in advance of the deployment in the High Seas of any float within the framework of the Argo Programme that may enter its EEZ. In implementing this provision, the Executive Secretary of IOC will invite all IOC Member States to state that they wish to be notified of it. In this light, denotes the position of the Russian Federation on the Argo Programme as marine scientific research and its wish to be notified of the deployment in the High Seas of all Argo Programme floats that may enter its EEZ.

Report of the Tokyo meeting and progress to date

Abstract Military and intelligence gathering activities will likely become more intensive, intrusive, controversial and dangerous. Regarding the regime covering these activities, there is general agreement that the exercise of the freedom of navigation and overflight in and above Exclusive Economic Zones (EEZs) should not interfere with the rights of the coastal State in the EEZ. But there is disagreement regarding interpretations of relevant 1982 UNCLOS provisions, the means to resolve the disagreements, or if there is even a need to do so. Increased dialogue between maritime powers and coastal States is necessary to reach a mutual understanding of key terms with a goal of developing some agreed voluntary guidelines for such activities and the means and manner of implementing them.

Access to Marine Bioresources: Hitching the Conservation Cart to the Bioprospecting Horse

Bioprospecting involves the collection of biological material for screening for commercially exploitable biologically active compounds or attributes, including genetic information. The authors assess the claim that bioprospecting has the potential to act as a sustainable carrot for biodiversity-rich states to conserve marine environments. They analyze the tensions between the international conventions that address bioprospecting in marine areas: the Biodiversity Convention and the Law of the Sea Convention. In particular, they reject any suggestion that there is a legal presumption in favor of coastal states granting access to marine bioprospectors. They argue that the different approaches taken by the marine scientific research provisions of UNCLOS to fundamental research and research with commercial potential is unrealistic because of the difficulties of drawing the distinction in practice. As a result, the danger is that scientific research will get caught in the hard bargaining increasingly associated with bioprospecting. The authors argue that coastal states will derive greater benefit from research collaborations rather than the distant prospect of winning the product royalty lottery.

Towards a Declaration on “Navigational Rights” in the Sea‑lanes of the Asia‑Pacific

Introduction As part of the overall process of implementing confidence-building measures (CBMs) in the Asia-Pacific region much attention has been devoted to maritime security and the need to expand and strengthen inter-state co-operation in that domain. This focus on maritime security recognizes of and other as fundamental principles but has failed to properly define the terms and identify their possible contribution as CBMs in their own right. This article aims to bring these issues to the centre of attention, by investigating the rationale for the formulation of a Declaration on in the sea-lanes of the Asia-Pacific(1) as a CBM. The article is divided into three sections. The first section is devoted to examining the relevant navigational regimes according to the 1982 United Nations Convention on the Law of the (UNCLOS) and how the provisions of UNCLOS might be interpreted in order to establish a definition of navigational rights which can be applied in practice. In the second section, the degree of international acceptance of navigational rights, as provided for under UNCLOS, is outlined, with a focus on the countries within the Asia-Pacific and the multilateral fora in the region, such as the Council for Security Cooperation in the Asia-Pacific (CSCAP) and the Workshops on Managing Potential Conflicts in the South China Sea. The third section discusses the advantages and problems associated with a possible declaration of in the region and its contribution as a CBM within the region's overall security processes. Much of the discussion centres on the attitude towards navigational and maritime issues as expressed in declarations by the Association of Southeast Asian Nations (ASEAN), CSCAP and the Workshops on Managing Potential Conflicts in the South China Sea. Defining of Navigation and Navigational Rights: Provisions of UNCLOS As a starting point in the search for a definition of of the text of UNCLOS will be used, originating from Article 2 of the 1958 Geneva convention, applying to the high seas. UNCLOS confirms the right of freedom of navigation on the high seas in Part VII, Section 1, Article 87.(2) Freedom of navigation is also referred to in other parts of UNCLOS but is not explicitly defined, although by implication UNCLOS adopts the definition in the 1958 Geneva convention. UNCLOS also contains sections dealing with navigation through different kinds of water areas. It is necessary to examine the three regime types of innocent passage, transit and archipelagic sea-lanes that may apply to sea-lanes in the Asia-Pacific, and to identify the navigational rights associated with each of these. Part II, Section 3 of UNCLOS is devoted to Innocent Passage in the Territorial Sea and in Article 17 it is stated that Subject to the Convention, ships of all states ... enjoy the right of innocent through the territorial sea.(3) In Article 18, the term passage is defined as the means of navigation through the territorial sea for either of two purposes: first, traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, and second, proceeding to or from internal waters or calling at such roadstead or port facility. Furthermore, the has to be continuous and expeditious.(4) Article 19 states that to qualify as innocent, the should not be prejudicial to the peace, good order or security of the coastal state: in practice this applies to any activity not having a direct bearing on passage, among them military actions, fishing and environmental pollution.(5) Article 21 spells out the right of coastal states to adopt laws and regulations relating to innocent through the territorial sea.(6) However, According to Article 24, the coastal state shall not hamper innocent through the territorial seas and shall not impose requirements on foreign ships which in practice would deny or impair the right of innocent passage, or discriminate against ships from any particular state. …