Navigational Rights Research Articles

Keeping the Arctic ‘Cold’: The Rise of Plurilateral Diplomacy?

At a time when the Arctic region faces significant climatic transformations, a triple governance gap threatens to fuel major diplomatic tensions among regional actors over natural resources, navigation rights and fishery management. This article argues that a plurilateral diplomatic approach could help close these gaps by establishing an effective ‘web of contracts’ involving institutional networks defined around the Arctic Council as the central node of Arctic governance and NATO, the International Maritime Organization (IMO) and the United Nations Development Programme (UNDP) / the Global Environment Facility (GEF) as supporting agencies. In so doing, the article makes a twofold contribution to the literature on global governance. It explains how governance gaps could be closed in a manner that does not require extensive institutional frameworks or rigid legal mandates, and it highlights the role of institutional networks in sustaining regional and global governance.

The Indonesian Legal Framework on Baselines, Archipelagic Passage, and Innocent Passage

As an archipelagic state, Indonesia is faced with a wide range of potential maritime security threats. This article analyzes the existing Indonesian legislation on baselines, archipelagic passage, and innocent passage in accordance with the 1982 United Nations Convention on the Law of the Sea. The article demonstrates the challenges that exist in implementing the key navigational rights laws.

The Seabots are Coming Here: Should they be Treated as ‘Vessels’?

Unmanned Marine Vehicles (UMVs), like their aerial cousins Unmanned Aerial Vehicles (UAVs), are not easily classified under existing legal regimes. Even though unmanned, should these seagoing drones be treated as ‘vessels’ under the Law of the Sea Convention articles on navigation rights and duties? Are they ‘vessels’ under the International Regulations for Preventing Collisions at Sea (COLREGs, 1972)? If so, should they be accorded a manoeuvring priority vis-à-vis other vessels? Are the differences between autonomous UMVs and the increasingly automated manned vessels all that great, such that classification should turn on whether the vessel is manned rather than on how navigation and collision avoidance decisions are made and executed?

The Seabots are <strike>Coming</strike> Here: Should They Be Treated as 'Vessels'?

Unmanned marine vehicles (UMVs), like their aerial cousins, the UAVs, are not easily classified under existing legal regimes. Even though unmanned, should these seagoing drones be treated as under the Law of the Sea Convention articles on navigation rights and duties? Are they under the Rules of the Road (i.e., the COLREGS)? If so, should they be accorded a maneuvering priority vis-a-vis other vessels? Are the differences between autonomous UMVs and the increasingly automated manned vessels all that great, that classification should turn on whether the vessel is manned rather than how navigation and collision avoidance decisions are made?

Compulsory Pilotage and the Law of the Sea: Lessons Learned from the Torres Strait

The regulation of navigation by shipping has been one of the longest standing issues confronting the law of the sea. Once states began to assert various forms of control and regulation over their adjacent waters, the issue of regulating the passage of foreign-flagged ships needed to be addressed. While the navigational rights and freedoms of shipping is now relatively settled under both the LOSC and contemporary state practice, a counterpoint to this has gradually emerged over the past 30 years due to a growing environmental awareness by coastal states of the need for enhanced environmental protection and management of not only their waters, but also their marine environmental resources and adjacent coastal areas. One response by coastal states has been to adopt compulsory pilotage regimes under which certain ships are required to take on board pilots, or avail themselves of pilotage services, as they pass through certain waters. Pilotage has a long maritime history, and is closely connected with efforts to secure the safety of shipping and the safety of a port from wayward ships. Once pilotage is required beyond internal waters in the territorial sea of a coastal state including an international strait the LOSC imposes constraints on the coastal state regulation of foreign shipping within those waters. Those rights of the coastal state are not unilateral and must be understood in the context of not only the LOSC but also related mechanisms and frameworks, especially those dealing with ship safety and the regulation of navigation overseen by the International Maritime Organisation (IMO). This essay looks at these issues in the context of a compulsory pilotage regime that has been adopted by Australia and Papua New Guinea (PNG) for the Torres Strait, and then considers what options may be available for equivalent measures to be adopted for the Straits of Malacca and Singapore.

Preserving Tradition that is Necessary to Exercising Essential Rights: Some Reflections on the ICJ Decision on Navigational Rights on the San Juan River

Abstract In 2009 the ICJ delivered a decision on the interpretation of the 1858 Treaty of Limits between Costa Rica and Nicaragua. While the main issue concerned commercial navigation on the San Juan River, a small part of the Court’s decision dealt with private navigational rights that benefit the few riparian inhabitants of the Costa Rican bank. On the basis of humanitarian concerns, the Court decided that the treaty implicitly guarantees also private navigational rights, originating in a tradition predating the Treaty of Limits, and necessary nowadays to access schools and medical practices. The article takes the Court’s interpretation as the starting point for a reflection on the importance of human rights law in the preservation of communal traditions that cannot rely on international rules protecting groups according to their identity.

Marine renewable energy and public rights

Marine renewable energy is likely to be an important part of UK energy policy over the next decades. A start has already been made, but to generate power on a significant scale requires the use of vast areas of ocean, on which there are competing claims. Legislation, and in particular the Energy Act 2004, goes a long way towards giving developers the legal infrastructure they need, to invest with confidence. But it is far from perfect, in dealing with important competing rights. This article has a narrow (but important) focus. It assumes that there are no problems over jurisdiction or international law. It is concerned principally with the rights of UK citizens. The issue is about reconciling the generation of large-scale marine renewable energy with other legitimate uses of the sea, and in particular fishing and navigation rights.

American and Chinese Views on Navigational Rights of Warships

Opposing American and Chinese views on navigational rights of warships in the exclusive economic zone (EEZ) reached a climax in 2009 with a number of incidents. Developments in 2010 indicate that the general climate between the two States in the South China Sea has not improved. By focusing on navigational rights of warships in the EEZ as well as in the territorial sea, the present contribution highlights some salient features of the relevant ocean policies of both States, some of which seem hard to square with the United Nations Convention on the Law of the Sea. After having noted that these opposing positions of China and the United States concerning navigational rights of warships are hard to reconcile at present, the article looks for possible solutions as to the future.

The right of inland navigation in Wales

Policy towards navigation along inland water resources for recreation and leisure has long been an area of contestation in England and Wales, largely due to differential rights and motivations betw...

Los balleneros anglo-estadunidenses y la cuestión de la “extranjerización” del comercio peruano a fines de la época colonial, 1790-1820

La mayor parte de los historiadores coincide en señalar que el fin del monopolio mercantil español en la costa oeste del océano Pacífico fue resultado de las reformas imperiales en el ámbito comercial. Desde nuestra perspectiva, esta explicación es insuficiente pues no toma en consideración los tratados internacionales firmados por la corona mediante los cuales cedió derechos de navegación a barcos de otras naciones en aguas territoriales españolas. En este artículo proponemos que el monopolio español en el Pacífico fue socavado por la masiva intrusión de barcos balleneros anglo-estadunidenses que llegaron amparados por los tratados de pesca de 1790 y 1795. Al combinar la pesca con el contrabando, los balleneros llevaron, tal vez sin proponérselo, al colapso de los sistemas de control del comercio extranjero. La apertura de la navegación al tráfico ballenero desempeñó, en consecuencia, una participación significativa en el desmantelamiento del monopolio comercial español en aguas del Pacífico sudamericano.

I. INTERNATIONAL COURT OF JUSTICE,CASE CONCERNING THE DISPUTE REGARDING NAVIGATIONAL AND RELATED RIGHTS (COSTA RICA V NICARAGUA)JUDGMENT OF 13 JULY 2009

The technique of ‘evolutive interpretation’ is well known in public international law.2It is particularly associated with treaty regimes like that of the European Convention on Human Rights (ECHR).3The currency of this technique of interpretation has, however, been less evident ingeneralpublic international law. It is not insignificant therefore that the International Court of Justice (ICJ), in a case about navigational and related rights has now made unambiguously clear that, where the parties have used generic terms in a treaty, aware that the meaning of the terms was likely to evolve over time, and where the treaty is one of continuing duration, the parties as a general rule must be presumed to have intended those terms to have an ‘evolving meaning’.4

Arctic Ocean Choke Points and the Law of the Sea

As the international law of the sea has developed throughout the centuries, and there has been a growing acceptance of the legitimacy of a range of maritime zones, there has been a need to provide certainty with respect to the freedom of navigation through certain waters. The initial focus was to assure freedom of navigation in the territorial sea, and this saw the gradual recognition of innocent passage which guaranteed rights of navigation by foreign-flagged vessels. The innocent passage regime developed alongside expanding claims by coastal states to a broader territorial sea, and as long as expansive claims to a territorial sea were kept under check significant disruption to maritime traffic through straits used by international navigation was minimised. However, as the territorial sea regime became more accepted as a part of customary international law, and then was recognised in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, it was evident that the particular issues that arose concerning navigation through straits would have to be addressed.

Indian Ocean maritime claims

This paper analyses contemporary maritime claims in the Indian Ocean Region. It examines sovereignty disputes around the region, including in the Persian Gulf and Mozambique Channel before moving on to assertions of maritime jurisdiction. These include claims over internal and archipelagic waters, as well as assertions over rights of navigation in territorial waters and beyond to the exclusive economic zone (EEZ). The paper concludes with an examination of recent claims over areas of continental shelf beyond the EEZ and issues in relation to maritime boundary-making in the region.

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.

Navigational Rights on the San Juan River: A Commentary on the Costa Rica v. Nicaragua Case

The Costa Rica/Nicaragua case concerns a dispute with regard to navigational and related rights of Costa Rica on the San Juan River. This river runs approximately 205 km from Lake Nicaragua to the Caribbean Sea, and part of the border between Costa Rica and Nicaragua runs long the right bank of the San Juan River. The section at issue in this dispute is the part of the river which runs from a point three English miles below a Nicaragua’s town, Castillo Viejo, to the mouth of the river at the Caribbean Sea.

International legal implications of the Philippine Treaty Limits on navigational rights in Philippine waters

The Philippine Treaty Limits define the colonial territorial limits of the Philippine Archipelago and impose serious restrictions on navigational rights and freedoms accorded to ships under the Law of the Sea Convention (LOSC), which the Philippines has signed and ratified. This paper discusses these navigational rights and freedoms and analyses the inconsistencies between the navigational regimes provided for in LOSC and their implementation in various Philippine maritime zones of jurisdiction.

Charting a Sustainable Course through Changing Arctic Waters

Abstract As the Arctic ice recedes, the opportunities for all year round routing of merchant shipping through Arctic waters rise. The freeing up of Arctic waters may also attract increased numbers of scientific research vessels, vessels servicing oil and gas installations, foreign fishing vessels and warships. The prospect of major navigational channels opening up in this region bring risks to a pristine Arctic environment and its indigenous inhabitants. This article highlights the threats posed to the species, habitats and ecosystems of Arctic waters from increased shipping transits of the region including the potential for increased vessel source discharges of noxious and hazardous substances and the catastrophic consequences of groundings for the Arctic environment and its biodiversity. It reviews the legal controversies over the status of certain parts of Arctic waters and the navigational regimes applicable to foreign flag vessels transiting Arctic waters under the 1982 United Nations Law of the Sea Convention (LOSC). The need to balance navigational rights with appropriate environmental safeguards under an increasing array of international environmental principles including the precautionary approach and obligations to assess the impact of ship based activities on the global environment and its marine components is examined. The article then analyses some of the regulatory mechanisms which have been devised to promote environmentally sustainable navigation for shipping in sensitive areas of ocean space subject to high levels of shipping traffic through the International Maritime Organisation (IMO).

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 Arctic in International Law: Time for a New Regime?

Long neglected in terms of international governance and management, the Arctic is slowly attracting greater attention as a region in need of an effective regime. Whilst the Arctic is not plagued by unresolved territorial disputes, there is the spectre of rising tension over yet to be asserted maritime claims over the vast Arctic Ocean. When this issue is added to the growing alarm over the impact of climate change upon the Arctic, which brings with it not only associated significant environmental change but also increased access within the region, it becomes clear that a region which for all of the Twentieth Century was pushed to the side when it came to the regulation of international affairs has the potential to take centre stage as state interests are awoken and global concerns advance. This paper reviews some of these recent developments with a particular focus upon outer continental shelf claims to the Arctic Ocean, navigational rights and freedoms within the Northeast and Northwest Passage, and the development of the Arctic Council. It argues that the circumstances are ripe for the development of an Arctic Treaty, borrowing from some of the concepts and principles which have been adopted in Antarctica.

Tilting at Offshore Windmills: Regulating Wind Farm Development Within the Renewable Energy Zone

Offshore wind farms are likely to be a key component of the United Kingdom's strategy for renewable energy, and the Energy Act 2004 introduced a new legislative framework for the development of wind farms beyond the limits of territorial sea within designated renewable energy zones. The compatibility of the new arrangements with international marine and environmental obligations is analysed. Rights of navigation, the protection of the marine environment and the decommissioning of turbines at the end of their operational life all raise significant legal issues. The introduction of the Energy Act is an important development in assisting the construction and operation of offshore wind farms. But the law was passed at a time when a number of major reviews had concluded that the legislative and policy framework for the protection of the marine environment suffered severe weaknesses. It is unfortunate that the UK Government did not consider the creation of an offshore renewable energy industry as an opportunity to develop and apply the sort of new marine conservation strategies and legal frameworks being advocated as essential in this area.