Cooperation and Engagement in the Asia-Pacific Region [1 ed.] 9789004412026, 9789004412019

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Cooperation and Engagement in the Asia-​Pacific Region

Center for Oceans Law and Policy Edited by Myron H. Nordquist and John Norton Moore

VOLUME 23

The titles published in this series are listed at brill.com/​colp

Cooperation and Engagement in the Asia-​Pacific Region Edited by

Myron H. Nordquist, John Norton Moore, and Ronán Long

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Nordquist, Myron H, editor. | Moore, John Norton, editor. | Long, Ronán, editor. Title: Cooperation and engagement in the Asia-Pacific region / Edited by Myron H Nordquist, John Norton Moore, and Ronán Long. Description: Leiden, The Netherlands ; Boston : Brill Nijhoff, 2020 | Series: Center for oceans law and policy; 23 | Includes bibliographical references and index. | Summary: “The present Secretary- General of the International Seabed Authority (isa) provides an overview of the current status of deep seabed mining. A lack of specific regulations defining the terms and conditions for exploitation has been a significant barrier to deep seabed mining, but the Council of the International Seabed Authority has fast- tracked the development of regulations. Near universal acceptance of the UN Convention on the Law of the Sea, increased confidence in the isa, successful trial mining, increased demand for strategic metals and tightening supplies, among other factors, suggest seabed mining on a commercial scale will soon occur”– Provided by publisher. Identifiers: LCCN 2019037964 (print) | LCCN 2019037965 (ebook) | ISBN 9789004412019 (hardback) | ISBN 9789004412026 (ebook) Subjects: LCSH: Law of the sea–Pacific Area. | Law of the sea–East Asia. | Law of the sea–Southeast Asia. | Marine pollution–Law and legislation– Pacific Area. | Marine pollution–Law and legislation–East Asia. | Marine pollution–Law and legislation–Southeast Asia. | Freedom of the seas– Pacific Area. | Freedom of the seas–East Asia. | Freedom of the seas–Southeast Asia. | Fishery law and legislation–Pacific Area. | Fishery law and legislation– East Asia. | Fishery law and legislation–Southeast Asia. | Ocean bottom–Law and legislation–Pacific Area. | Ocean bottom–Law and legislation–East Asia. | Ocean bottom–Law and legislation–Southeast Asia. Classification: LCC KZA1146.P16 .C67 2020 (print) | LCC KZA1146.P16 (ebook) | DDC 341.4/5091823–dc23 LC record available at https://lccn.loc.gov/2019037964 LC ebook record available at https://lccn.loc.gov/2019037965

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 1872-​7 158 isbn 978-​9 0-​0 4-​4 1201-​9 (hardback) isbn 978-​9 0-​0 4-​4 1202-​6 (e-​book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents Preface ix Acknowledgments xii List of Illustrations xiii

Featured Remarks

Reflections on the Status and Prospects for Deep Seabed Mining in 2018 3 Michael Lodge



Reflections on the Past 25 Years of Ocean Law and Policy 9 David A. Balton



Maritime Autonomous Surface Ships in International Law: New Challenges for the Regulation of International Navigation and Shipping 18 Aldo Chircop

part 1 Spotlight on Regional Cooperation 1

Military Cooperation and International Custom in the Asia-​Pacific Region 35 John G. Hannink

2 Peace through Joint Marine and Cruise Tourism in the Disputed South China Sea Islands: Opportunities and Challenges 40 Yann-​huei Song 3 Multilateral Cooperation in Resolving or Managing International Issues 83 Helmut Tuerk 4 Jurisdictional and Substantive Aspects in the Application of unclos Article 83(3) in Recent International Decisions 99 Xinjun Zhang

vi Contents

part 2 Protection and Preservation of the Marine Environment 5 Candy and Poisons: Protecting Marine Environments While Meeting Societal Needs 119 Daniel Rittschof 6 The Duty to Cooperate in the Protection and Preservation of the Marine Environment 125 Chie Kojima 7 Environmental Impact Assessments in Protection and Preservation of the Marine Environment 139 Tianbao Qin and Fang Hou 8 Increasing Challenges to the Future Marine Environment 161 Stephen A. Macko

part 3 Freedom of Navigation 9 Freedom of Navigation: Where to Go When the Political Agenda Overshadows Legal Substance 179 Nong Hong 10 An Archival History of the Creation and Early Implementation of the Freedom of Navigation Program 206 James Kraska 11 Military Activities in Foreign Exclusive Economic Zones: Identification and the Application of Law 238 Xinmin Ma 12 Freedom of Navigation: Practices of Vietnam 295 Lan-​Anh T. Nguyen

Contents

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part 4 Straits Governance, including Malacca/​Singapore 13 The International Straits Regime: Notes on Uncertainties and “Other” Straits in the Northeast Asia-​Pacific Region 307 Ted L. McDorman 14 Passage through Indonesian Waters on Routes Used for International Navigation 318 Robert Beckman and Dita Liliansa

part 5 Search and Rescue 15 Towards the Establishment of a Search and Rescue Cooperation Mechanism in the South China Sea: Regulatory Framework, Challenges and Prospects 339 Yubing Shi 16 Understanding the Challenge: Mass Rescue Operations at Sea 356 Richard Button and Thomas Gorgol 17 Models for Maritime Collaboration in the South China Sea: National-​level Coordination 391 Brian Wilson

part 6 Sustainable Fisheries 18 Combating iuu: the Driving Force behind Development of International Fisheries Law? 417 Kuan-​Hsiung Wang 19 What’s in a Name: the Importance of Distinguishing between “Fisheries Crime” and iuu Fishing 433 Kathryn Youel Page and Alexis J. Ortiz

viii Contents

part 7 Marine Biodiversity of Areas Beyond National Jurisdiction (bbnj) 20 Negotiating a New Marine Biodiversity Instrument: Reflections on the Preparatory Phase from the Perspective of the European Union 443 Ronán Long and John Brincat 21 bbnj: Developments since Yogyakarta 469 J. Ashley Roach Index 507

Preface The Chinese Ministry of Foreign Affairs encouraged the University of Virginia’s Center for Oceans Law and Policy to hold its forty-​second annual conference in Beijing and helped to identify law of the sea experts in China and the region to be invited for the program. The conference was held from 23–​25 May 2018 on the topic of “Cooperation and Engagement in the Asia-​Pacific Region”. Michael Lodge, Secretary-​General of the International Seabed Authority, was a featured speaker on “Reflections on the Status and Prospects for Deep Seabed Mining in 2018”. He announced that the isa has fast-​tracked the development of terms and conditions for mineral exploitation increasing expectations that seabed commercial mining will soon occur. Former U.S. ambassador David A. Balton then shared his “Reflections on the Past 25 years of Ocean Law and Policy”. He highlighted serious concerns about mixed success worldwide to make fisheries more sustainable but despite geopolitical tension, noted that the Arctic States and others with significant interests have found ways to cooperate in a warming Arctic Ocean. The third featured speaker was Professor Aldo Chircop from Dalhousie University who discussed the new challenges for international navigation and shipping posed by maritime autonomous surface ships. In particular, he explored and discussed the legal issues in adapting existing rules at the International Maritime Organization for commercial vessels. Part 1 spotlighted regional cooperation. vadm Hannink, who now heads the U.S. Navy’s Judge Advocate legal service, spoke on military cooperation and internationalization in the Asia-​Pacific region. In his presentation, he examined common interests and cited specific examples of on-​going cooperation between the United States and other nations in the Asia-​Pacific region. Professor Yann-​hui Song from Taipei, Taiwan discussed the idea of promoting joint marine and cruise tourism in the disputed Paracel Islands in the South China Sea. He suggests that this effort would enhance maritime cooperation and development in this important East Asian semi-​enclosed sea. Next, former International Tribunal for Law of the Sea Judge Helmut Tuerk pointed out that as a semi-​enclosed sea the States bordering the South China Sea had a general directive to work together pursuant to the 1982 Convention. The Judge noted the existence of a framework for cooperation in a Code of Conduct that would establish a cooperative mechanism for bordering States. Xinjun Zhang of Tsinghua University discusses jurisdictional and substantive aspects in unclos article 83(3) dealing with provisional arrangements pending final agreement on delimitation of a continental shelf dispute where sovereignty over continental

x Preface or insular land is not involved. Professor Zhang endorses a need to balance the interests of States in pursuing economic development pending delimitation. Part 2 put a focus on protection and preservation of the marine environment. Professor Daniel Rittschof of the Duke University Marine Laboratory endorses developing technology as a necessary next step to meet demands for food and to help restore marine environments. He believes unclos has the structure to address these concerns. Law professor Chie Kojima of Musashino University examines the unclos duty to negotiate or consult in good faith. Dr. Kojima considers global, regional and sub-​regional organizations formed pursuant to the fish stocks agreement, whaling in Antarctic case, and with respect to illegal, unreported and unregulated fishing. Environmental Impact Assessments were the marine environment topic for Tianbao Qin and Fang Hou of Wuhan University’s Institute of Boundary and Ocean Studies. They believe that the International Court of Justice and the International Tribunal for the Law of the Sea (itlos) have facilitated the development of rules for environmental impact assessment. Lastly Professor Stephan A. Macko of the Department of Environmental Sciences, University of Virginia commented on increasing challenges to the future marine environment. He pinpoints chemical and physical forces that could alter entire ecosystems such as rising ocean acidity, waste plastics and increasing ocean temperatures. Part 3 deals with freedom of navigation. Dr. Nong Hong of the Institute of China-​American Studies located in Washington, DC, outlines the perspectives of the United States and China in the South China Sea dispute. She notes their divergent legal interpretations and discusses the relationship between military activities and freedom of navigation. The next contribution was by James Kraska, the Stockton Professor of International Law at the US Naval War College. Professor Kraska provides an archival history of the creation and early implementation of the US freedom of navigation program. The third speaker was the Vice President of both the Asian Society of International Law and the Chinese Society of the Law of the Sea, Xinmin Ma. He spoke on military activities in a foreign eez and covered five issues from a positivist perspective: right to conduct, legal framework, determining legality, resolving conflicts and lex ferenda. The last speaker in this Part was Associate Professor Lan-​Anh Nguyen, Vice Dean of the International Law Faculty of the Diplomatic Academy of Vietnam. She explained the freedom of navigation practices of Vietnam. Part 4 on straits governance featured two contributors. The first was Professor Ted L. McDorman of the Faculty of Law, University of Victoria, Canada. His comments were primarily on legal uncertainties concerning the unclos international straits regime followed by a brief look at the specific regimes in Jeju Strait, Korean Strait and Strait of Hainan. The second paper was jointly

Preface

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prepared by Professor Robert Beckman of the Faculty of Law, National University of Singapore and Dita Liliansa a Research Associate at the nus Centre for International Law. Their presentation was on “Passage through Indonesian Waters on Routes used for International Navigation”. Part  5 shifted to search and rescue (sar) operations. Associate Professor Yubing Shi from the South China Sea Institute at Xiamen University first examines the current global and regional regulatory framework and then identifies the challenges in this framework for furthering the construction of a regional sar cooperation mechanism in the South China Sea. The second paper was jointly submitted by Richard (Rick) Button Chief, Coordination Division, sar Office, U.S. Coast Guard and Tom Gorgol of the Mass Rescue Operations, sar Office, U.S, Coast Guard. Their comprehensive review discusses the lessons learned from previous maritime disasters and identifies challenges sar authorities must consider when planning, coordinating and conducting mass rescue operations at sea. Part 6 was devoted to sustainable fisheries. Professor Kuan-​Hsiung Wang of the Graduate Institute of Political Science in Taiwan highlighted the problem of deterring the expansion of illegal, unreported and unregulated (iuu) fishing activities. He then reviewed recent instruments and practices in international fisheries law for dealing with iuu fishing activities. The third paper was co-​authored by Kathryn Youel Page of the Office of Legal Adviser, U.S. Department of State and Alexis J. Ortis, an attorney in her office. They concluded that the use of the term “fisheries crime” to encompass and expand the concept of iuu fishing is counterproductive to efforts to understand and address iuu fishing in an international fisheries management context. The last Part looks to future cooperation, particularly with respect to the negotiations for a new marine biodiversity instrument beyond national jurisdiction (bbnj). The Director of the World Maritime University’s Global Ocean Institute, Nippon Foundation, Professor Ronán Long and John Brincat of the European Commission provide a comprehensive survey of the evolution of the bbnj negotiations. They trace the genesis of the Preparatory Committee 2016–​2017 and review its unique role in advancing the negotiation process towards the convening of an intergovernmental conference in 2018. J. Ashley Roach, retired from the Office of Legal Adviser, U.S. Department of State and now Visiting Senior Principal Research Fellow, Centre for International Law, National University of Singapore, then updates the bbnj negotiations through its first intergovernmental conference in 2018. Editorial note: Conference PowerPoint presentations are available at https://​ colp.virginia.edu/​annual-​conference

Acknowledgments Cooperation and Engagement in the Asia-​Pacific Region is part of a series of publications on oceans law and policy sponsored by the Center for Oceans Law and Policy, University of Virginia School of Law, in connection with its annual conference. This volume is largely based on presentations made 24–​25 May 2018 at the Center’s 42nd conference which was held in Beijing, China. The principal organizers were the Virginia Center and the National Institute for South China Sea Studies, the Chinese Society of International Law, and the Korea Maritime Institute. Additional sponsors were the China Institute of Boundary and Oceans Studies, Wuhan University; the Centre for International Law, Singapore National University; the K.G. Jebsen Centre for the Law of the Sea, Tromsø; the International Seabed Authority, and the U. S. Naval War College. Technical editing assistance for this volume was provided by Judith A. Ellis.

newgenprepdf

Illustrations Figures 8.1

Recent historic changes in ocean pH. Oceanic pH values have remained relatively constant until the most recent time frame, with dramatic declines predicted as atmospheric carbon dioxide increases. (National Academy of Sciences, 2003) 165 8.2 Chemical processes involved in Ocean Acidification. Relationships between pressure/​concentration of atmospheric carbon dioxide (pCO2), dissolved carbon dioxide in ocean waters (CO2(aq) and ocean pH. (Figure courtesy of nerc and the UK Ocean Acidification Program.) 166 9.1 US fonop s in the South China Sea Timeline 199 14.1 Southeast Asia transit region. (Source: L.M. Alexander, Navigational Restrictions within the New LOS Context: Geographical Implications for the United Nations (J. Ashley Roach, ed., Leiden/​Boston: Brill Nijhoff, 2017), Map 17 at p. 158 320 15.1 Maritime sar Regions in the Southeast Asian Region (Source: Ministry of Transportation of China) 350

Tables 2.1

The World Economic Forum’s Travel & Tourism Competitiveness Index 2009, 2015, 2017 Rankings 53 2.2 Possible Participating Parties in the Proposed Joint Marine & Cruise Tourism Cooperation Mechanism in the South China Sea 81 7.1 Documents related to environmental impact assessment 145 10.1 fon Operations conducted between April 15 and November 1, 1979 217 15.1 Status of ratification of main international instruments by coastal States in the scs 343

Featured Remarks

∵

Reflections on the Status and Prospects for Deep Seabed Mining in 2018 Michael Lodge* Abstract The present Secretary-​General of the International Seabed Authority (isa) provides an overview of the current status of deep seabed mining. A lack of specific regulations defining the terms and conditions for exploitation has been a significant barrier to deep seabed mining, but the Council of the International Seabed Authority has fast-​tracked the development of regulations. Near universal acceptance of the UN Convention on the Law of the Sea, increased confidence in the isa, successful trial mining, increased demand for strategic metals and tightening supplies, among other factors, suggest seabed mining on a commercial scale will soon occur. Challenges include concerns over potential environmental damage and strategies to mitigate and, as far as possible, prevent harmful impacts and pollution.

Keywords deep seabed mining –​minerals –​International Seabed Authority –​regulations

Last year, the Council of the International Seabed Authority took a decision to fast track the development of regulations for exploitation of deep seabed minerals. The forthcoming publication of the first official draft of the exploitation regulations, which we expect by the end of this month, is a significant moment for the law of the sea. It removes one of the last remaining barriers to seabed mining taking place at a commercial scale. Nearly everyone in this room will be aware of the long history behind Part xi of the Convention, starting from the famous and frequently misquoted speech by Ambassador Pardo to the First Committee of the UN General Assembly in

* Secretary-​General, International Seabed Authority.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_002

4 Lodge 1967. This was followed by the General Assembly Resolution on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction and the Use of their Resources in the Interest of Mankind, and from there we can trace a straight line right through to the adoption of the Convention in 1982. Everyone will also no doubt be aware that it was problems with the deep seabed mining regime, contained in Part xi and Annex iii of the Convention, that led directly to the prolonged delay of 12 years before the Convention entered into force in November 1994. Indeed, this only became possible with the adoption of the 1994 Implementation Agreement, which creatively found solutions to every single one of the problems identified with respect to the original Convention text. As a side note, and speaking as a legal practitioner for a moment, let me add that as we work our way through the exploitation regulations, we constantly pause to admire the subtle way in which that Agreement dealt with the problematic elements of Part xi. Even when the International Seabed Authority came into existence in 1996 it was met with scepticism by many States, particularly by those who had been less than satisfied with Part xi of the Convention. Although the Authority moved relatively quickly—​by 2001—​to regularize the position of the group of registered pioneer investors following the adoption of the first set of Regulations on Prospecting and Exploration for Polymetallic Nodules, there then followed a long period during which there was very little commercial interest in deep sea minerals, and consequently little interest by States in the work of the Authority, beyond keeping the administrative costs down. During this period, most of the pioneer investors substantially reduced their exploration programmes in light of general uncertainty surrounding the future of deep seabed mining. There were no new technologies in sight and very little interest on the part of investors. This all began to change in 2011, when the small island nation of Nauru applied for an exploration contract in one of the areas reserved by the Authority for developing countries under the so-​called site-​banking system introduced by Henry Kissinger in 1978. One of the main factors that paved the way for this was the 2011 Advisory Opinion of the Seabed Disputes Chamber, which clarified the law relating to the responsibilities and obligations of sponsoring States. Since 2011 we have seen a rapid growth in exploration activity. The Authority has now issued 29 exploration contracts, covering three different mineral resource types, which are located in the Atlantic, Pacific and Indian Oceans. Contractors include States, state enterprises and private sector companies, and contractors sponsored by both developed and developing States. Exploration expenditure has increased dramatically, and all members of the Authority are

Reflections on the Status and Prospects

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reaping the benefit of increased scientific knowledge of the deep seafloor. Several contractors are actively testing prototype mining equipment, which will help us to better understand the environmental impacts of mining. As a result, we are in my view at a very exciting place for the Authority and for this new industry. After all these years we are approaching the point where contractors will need to make the huge investments needed to move to commercial exploitation. The question is, how to make that transition and how to overcome the remaining barriers to progress. One of the major barriers is the lack of specific regulations that will define the terms and conditions for exploitation. Of course, the Convention and the 1994 Agreement provide the basic legal framework, including the rights and duties of the Authority and contractors, the governing principles for environmental protection, and rules on responsibility, liability and dispute settlement. But there is a need to elaborate this basic framework through regulations that will clearly define the process of applying for exploitation rights, the process and content of environmental impact assessments, and the financial terms of mining contracts. This is the work that the Authority is currently undertaking. At the end of this month, after two rounds of global stakeholder consultation, and numerous workshops and other meetings over a period of three years, as well as various technical studies and reports, we will be issuing a first complete draft of the exploitation code for consideration by the governing bodies of the Authority. So why should it work this time when it has failed so many times before? What is different this time around? For a start, we have achieved near universal participation in the Convention. The Authority has 168 members, including the European Union and nearly all of the major maritime powers. More importantly, perhaps, there is no indication at all of any interest by any State or mining company to operate outside the Convention regime. There is also an increase in participation by developing countries, although more remains to be done. Second, the Authority, by and large, is functioning well and appears to have a high degree of confidence among its members, even those who were most sceptical in 1994. One indicator of this is that more than 95% of budget contributions are paid. Another is the increased level of engagement by member States, including in the development of a first ever strategic plan for the Authority, to be debated in July this year. Third, the stakes are higher this time around. Much more has been invested, especially, but not exclusively, by the private sector. This includes investment in technology, which in my view at least, should no longer be regarded as a limiting factor. In the last year, we have already seen successful trial mining for

6 Lodge seafloor massive sulphides take place at 1,600 metres water depth in Japanese waters, as well as tests of a nodule collector at 5,000 metres in the Clarion Clipperton Zone. In April 2019, Germany and Belgium will carry out a prototype mining test in their contract areas. Although the investments to date are small compared to the investment that will be needed for a full scale commercial mining operation, they are nevertheless significant, and many of the companies involved, such as Lockheed Martin, Deme, China Minmetals Corporation, Maersk and Fugro, are important industry players. Fourth, the economics of deep seabed mining are very different to what they were even a few years ago. Increasing global population, urbanization, rising consumption and aggressive development of technologies that depend heavily on certain strategic metals, which happen to be the same metals we find in seabed minerals, are pushing market forecasts substantially higher. For example, the World Bank estimates that the annual global demand for nickel, now around two million metric tons, will rise 50 percent by 2030. Similar long-​ term trends can be observed for cobalt and copper. One key driver for this is that a transition to a low carbon society will require vast amounts of metals and minerals. Decreasing use of fossil fuels to mitigate the effect of climate change will require increasing consumption of metals. As a recent article in Nature explains, “Mineral resourcing and climate change are inextricably linked, not only because mining requires a large amount of energy, but also because the world cannot tackle climate change without adequate supply of raw materials to manufacture clean technologies”. Alongside increased demand, we are seeing a tightening of supply. Historically low investment in exploration has slowed the rate of discovery of new resources. Poor governance, social conflict and increased environmental regulation means that marginal deposits may not be economically viable. Most analysts agree that the global mining industry is not in a strong position to quickly bring on stream new capacity to meet a shortfall in production, or to deal with unforeseen shocks, such as the decision last month by the Democratic Republic of Congo, the source of two-​thirds of the world’s cobalt, to increase royalty rates from 2% to 10% overnight. In this situation, seabed minerals become more attractive to investors. Total land-​based reserves of nickel are about 76 million metric tons. Roughly the same amount, in the form of nodules, lies on the seafloor within the Clarion-​Clipperton Zone alone. The story for cobalt is similar: land reserves of about seven million metric tons are matched or even exceeded by nodules in the zone. So much for the positive signs, now let me turn to look at some of the challenges.

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First, it is evident that there is a vociferous and growing environmental lobby that has existential concerns about deep seabed mining. In saying this I want to make it clear that I do not in any way want to understate the importance of environmental protection. This is something that we take very seriously. The Convention makes it clear that, as a regulator, the Authority has the responsibility to protect the marine environment from the harmful impacts of mining and must develop environmental regulations that ensure that exploration and exploitation take place in a manner that prevents serious harm to the marine environment, both on the ocean floor and in the water column. We also need to establish and clearly articulate a monitoring regime that can be made more robust as development proceeds. At the same time, contractors need clearly to understand what are permitted and non-​ permitted impacts so that they can reduce, mitigate and, as far as possible, prevent harmful impacts and pollution that can affect wider ecosystems and habitats. But I am disturbed by the fact that popular perception of deep seabed mining is increasingly subject to wildly inaccurate and distorted scenarios portrayed by the media and interest groups. Suggestions that deep seabed mining will inevitably cause large-​scale irreversible damage and ecosystem collapse appear to be grossly exaggerated and lack any basis in fact. Furthermore, the ocean conservation lobby appears reluctant to address the real and evidently uncomfortable issue for them, which is the environmental trade-​off between land-​based mineral production and seabed mineral production. It is perhaps worth putting some context and perspective around deep seabed mining. First, the nature of the operation. The environmental management techniques that will be used by the Authority, contractors and sponsoring States are tried and tested. They include environmental impact assessment, based on collection of baseline data during exploration; long-​term monitoring both during and after impact; use of best available technology to minimize impacts and risk mitigation measures. Many guidelines and standards for this new industry can easily be adapted from existing offshore industries. The major problem we have is scientific uncertainty, which can only be addressed through continued data collection and analysis and constant refinement of management responses. This is the essence of the precautionary approach, which does not mean, as some have proposed, that mining is banned until scientific uncertainty is resolved, but that it proceeds with necessary controls and risk mitigation measures put in place. Operators must also play their part by reducing the risk of incidents to as low as reasonably

8 Lodge practicable, to the point where the cost of further risk reduction would be disproportionate to the benefits of such reduction. Second, the scale of operations. The 29 exploration contracts currently issued by the Authority cover about 1.1  million square kilometres of seafloor, with about 800,000 square kilometres under exploration in areas under national jurisdiction. But that is a miniscule portion of the ocean floor—​less than 0.5%. The part of this area that might eventually be mined is even less, since exploration areas are typically much larger than mineable areas. In the case of polymetallic nodules, for example, we would expect a typical 20-​year mining operation to impact an area of around 8,500 square kilometres, or about 1% of the original exploration area. For other mineral resources, the geographic footprint is even smaller. Another challenge is that we are beginning to see some of the old political concerns that led to the failure of the 1982 Convention resurface. These include, for example, concerns around the potential impact of mineral production from the deep seabed on the economies of developing land-​based producers of such minerals, as well as renewed calls for the operationalization of the Enterprise. These debates are likely inevitable, and there is no doubt that they reflect real and legitimate concerns amongst some of the developing countries. The difficulty is that most of these concerns have been resolved by the 1994 Agreement. For example, in the case of impacts on land-​based producers, the 1994 Agreement makes it clear that the only recourse shall be through an economic assistance fund to be established from the royalties paid to the Authority. There is perhaps a danger that political expectations will not be satisfied, and we need to ensure that all voices are heard. The third challenge is that we are about to enter unknown waters in the form of the forthcoming international conference on the conservation and sustainable use of marine biological diversity beyond national jurisdiction. Time does not allow for a discussion of all the issues involved with this negotiation, but it is important to ensure that the outcome does not undermine in any way the arrangements that have been painstakingly developed over the past 25 years in implementing Part xi and the 1994 Agreement. Nevertheless, I am confident that at the end of the day, the solid foundation provided by the Convention and the 1994 Agreement will prevail. The Area and its resources are the common heritage of mankind and States have the right to exploit its resources, provided they do so under the framework of Part xi and subject to the supervision of the Authority.

Reflections on the Past 25 Years of Ocean Law and Policy David A. Balton* Abstract The past 25 years have witnessed an impressive range of activity in the field of ocean law and policy. This article offers some reflections on illustrative examples of work in this field, and on the motivations that spurred such initiatives, and considers how effective and lasting these efforts and their results may turn out to be. The international community—​ governments, stakeholders, intergovernmental organizations, and others—​has devoted considerable efforts to make marine fisheries more sustainable in the face of growing worldwide demand for seafood and improved fishing technology. Despite these efforts, the record of success in this endeavor is mixed at best. For the Asia-​Pacific region, which relies significantly on seafood for protein, this raises serious concerns. The Arctic Ocean offers a fascinating case for testing how well nations can cooperate in managing the full range of human activities in a specific marine environment. Until recently, nations did not really need to cooperate extensively in the Arctic Ocean, as the year-​round extent of ice coverage made most human activities there difficult if not impossible. But conditions have changed profoundly due to the warming of the region. Arctic States—​and other States with significant interests in the region—​have in the past decade found ways to cooperate on Arctic Ocean issues, despite serious geopolitical tensions. The ocean and its challenges have attracted unprecedented high-​level attention in recent years. High-​profile conferences on ocean matters have sprung up in the past decade, including the Our Ocean Conferences, the UN Ocean Conferences relating to Sustainable Development Goal 14, the Economist Ocean Summits and similar gatherings. Are these making a significant difference? And where are they—​and we—​headed?

* David A. Balton joined the Woodrow Wilson Center’s Polar Initiative January 2018 as a Global Fellow. He previously served as the Deputy Assistant Secretary for Oceans and Fisheries in the Department of State’s Bureau of Oceans, Environment and Science, attaining the rank of Ambassador in 2006. The author’s PowerPoint is available at https://​colp.virginia.edu/​sites/​ colp.virginia.edu/​files/​beijing-​balton-​keynote.pdf.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_003

10 Balton Keywords ocean fisheries –​Arctic Ocean –​ocean policy –​Food and Agriculture Organization –​ marine biodiversity –​sustainable development –​overfishing

…

I met a traveller from an antique land, Who said—​“Two vast and trunkless legs of stone Stand in the desert. … Near them, on the sand, Half sunk a shattered visage lies, whose frown, And wrinkled lip, and sneer of cold command, Tell that its sculptor well those passions read Which yet survive, stamped on these lifeless things, The hand that mocked them, and the heart that fed; And on the pedestal, these words appear: My name is Ozymandias, King of Kings; Look on my Works, ye Mighty, and despair! Nothing beside remains. Round the decay Of that colossal Wreck, boundless and bare The lone and level sands stretch far away.” percy shelley, Ozymandias



∵

Introduction

Ozymandias, perhaps the greatest of the Egyptian Pharaohs, more commonly known as Ramesses ii, could reasonably have laid claim to being the most powerful person on the planet in his day. He commanded an enormous empire of extraordinary wealth and cultural achievement. And yet the gigantic statue of Ozymandias, described by the traveler in Shelley’s sonnet, today lies shattered in the sands of the Nubian Desert. The lesson suggested is one of humility—​we should consider with circumspection the durability of human constructs, including our own. The past 25 years have witnessed an impressive range of activity in the field of ocean law and policy. This article does not attempt to chronicle or analyze the full range of this activity but instead offers some reflections on illustrative examples of work in this field, and on the motivations that spurred such initiatives,

Reflections on the Past 25 Years of Ocean Law and Policy

11

and considers how effective and lasting these efforts and their results may turn out to be.

Ocean Fisheries

Twenty-​five years ago, we began to realize that we were not managing ocean fisheries well. A number of key fish stocks had collapsed and others were growing depleted. The exercise of fisheries jurisdiction by coastal States within their Exclusive Economic Zones (eez s), codified in the 1982 Law of the Sea Convention, had not ushered in a new age of sustainable fisheries, as some had hoped. Many coastal States struggled to bring proper management to fisheries in their eez s. Growing high seas fisheries, fueled by improved technology and declining opportunities of foreign vessels to fish in certain eez s, received only spotty management, undermined in numerous cases by the use of flags of convenience. Conflicts between coastal States and distant water fishing nations over fish stocks that occurred on both sides of the 200-​mile line were growing acute. Thus, while the 1982 Convention on the Law of the Sea provided an agreed legal framework for governing ocean fisheries, actual management produced only mixed results. A  number of regional fisheries management organizations (rfmo s) existed, but they operated more or less independently of one another and with virtually no guidance or direction institutions at the global level. The Food and Agriculture Organization (fao), through its Committee on Fisheries, served as a venue for governments to exchange views about ocean fisheries, but fao devoted itself primarily to providing assistance to developing States rather than to promoting sustainable ocean fisheries worldwide. The 1992 United Nations Conference on Environment and Development prompted greater attention to this state of affairs. Agenda 21, adopted at that meeting of world leaders, called for significant improvements in the governance of ocean fisheries. An explosion of activity followed in the coming years. At the global level: –​ fao produced the 1993 Agreement  to Promote  Compliance  with International Conservation and Management Measures by Fishing Vessels on the High Seas, the first treaty to elaborate a clear set of obligations of flag States concerning their high seas fishing vessels. –​ fao also developed a comprehensive non-​binding instrument, the 1995 Code of Conduct for Responsible Fisheries, which still serves as the framework for fao’s overall mission in fisheries and aquaculture.

12 Balton –​ At the United Nations, negotiations on an implementing agreement to the 1982 Convention got underway, culminating in the adoption of the United Nations Fish Stocks Agreement in 1995. This treaty and the three sessions of its Review Conference have guided States in strengthening management of straddling and highly migratory fish stocks, particularly through rfmo s. –​ The United Nations General Assembly passed resolutions that effectively ended the use of large-​scale driftnets on the high seas and, later, curtailed bottom trawling and other destructive fishing practices. –​ In 1999 and 2001, the fao adopted International Plans of Action on topics such as managing fishing capacity, protecting seabirds in the course of longline fishing operations, managing shark fisheries and, perhaps most notably, combatting illegal, unreported and unregulated fishing. At the regional level, States created new rfmo s and strengthened the mandates of existing rfmo s. The rfmo s began to collaborate as never before, adopting similar (sometimes identical) measures and sharing data. “iuu fishing” (illegal, unreported, and unregulated fishing) became not only a recognized acronym but also a rallying cry for concerted efforts to enforce fisheries rules more effectively. fao followed up the adoption of the International Plan of Action on iuu fishing with the negotiation and adoption of the Port State Measures Agreement, which now boasts more than 55 parties and provides an exceptional new tool with which to keep illegally harvested fish from entering the stream of commerce. Responding in part to advocacy from environmental groups and consumer preferences, the European Union and the United States—​two of the largest seafood markets in the world—​have begun to restrict importation of illegally caught fish and to crack down on seafood fraud. Agenda 2030, adopted at the United Nations, includes Sustainable Development Goal 14, with a target of having 10 percent of the world’s ocean conserved, including through marine protected areas (mpa s), by 2020. Individual coastal States accelerated the creation of large marine protected areas in which they restricted and sometimes prohibited commercial fishing. The Commission for the Conservation of Antarctic Marine Living Resources adopted the world’s largest mpa in the Ross Sea. The list of such activities to promote sustainable fisheries is, of course, much longer. But has all of this activity helped? Certainly ocean fisheries are better off today than if none of these steps had been taken. But are they enough to guarantee sustainable fisheries into the future? The world’s ocean as a whole is not in good shape. As highlighted by the series of Our Ocean Conferences launched by the United States several years ago, the quest for sustainable ocean fisheries remains just that—​a quest. The

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challenges we face in fulfilling that quest now also compete for attention with two other, interrelated, challenges:  stemming marine pollution and coping with the adverse effects on the ocean of climate change and acidification. With respect to ocean fisheries, we have not yet successfully overcome three main barriers to long-​term sustainability: (1) we must end overfishing, which is driven in large part by excess fishing capacity; (2) we must continue to combat iuu fishing; and (3) we must prevent damage caused to marine ecosystems by certain types of fishing practices. While we have made some real headway in addressing issues (2) and (3), we have still not solved the overfishing problem. fao produces a biennial publication known as the “State of World Fisheries and Aquaculture” (sofia),1 which most experts generally regard as the best source of overall statistics in this field. The 2018 sofia reveals that, while the total amount of fish captured in the ocean has remained relatively stable over the past few decades, there are some alarming trends in these capture fisheries: The state of marine fishery resources, based on fao’s monitoring of assessed marine fish stocks, has continued to decline. The fraction of marine fish stocks fished within biologically sustainable levels has exhibited a decreasing trend, from 90.0 percent in 1974 to 66.9 percent in 2015. In contrast, the percentage of stocks fished at biologically unsustainable levels increased from 10 percent in 1974 to 33.1 percent in 2015, with the largest increases in the late 1970s and 1980s. In 2015, maximally sustainably fished stocks (formerly termed fully fished stocks) accounted for 59.9  percent and underfished stocks for 7.0 percent of the total assessed stocks. In other words, overfishing remains a real concern. The percentage of fish stocks harvested at unsustainable rates has increased steadily in past decades and today represents roughly a third of such stocks. If this trend continues—​ and unless further action is taken to reduce overfishing and excess fishing capacity, we should expect it to continue—​serious consequences for food security and the marine environment will follow.

The Arctic Ocean

The Arctic Ocean offers a fascinating case for testing how well nations can cooperate in managing the full range of human activities in a specific marine 1 http://​www.fao.org/​state-​of-​fisheries-​aquaculture.

14 Balton environment. Until recently, nations did not really need to cooperate extensively in the Arctic Ocean, as the year-​round extent of ice coverage made most human activities there difficult if not impossible. But conditions have changed. The extent of Arctic sea ice coverage and the volume of Arctic sea ice have both diminished drastically. Large portions of the Arctic Ocean are now ice-​ free for several months each year. Scientists predict that the entire ocean will be ice-​free during the summer before the middle of this century. Serious consequences from the diminishment of sea ice have begun to make themselves felt, particularly coastal erosion, which is forcing the relocation of some towns along the Arctic coast. Arctic Ocean monitoring programs also reveal other climate-​related changes, including sea surface temperature increases and the beginning of sea level rise. In addition, the Arctic Ocean is experiencing even faster acidification that most other marine areas, due to the fact that cold water absorbs more carbon dioxide than warm water. With these serious problems have also come some new opportunities, as human activities in the Arctic are increasing. As foreseen in the 2009 Arctic Marine Shipping Assessment, we are already witnessing an uptick in Arctic shipping, a trend that is almost certain to continue. The warming Arctic Ocean may also make possible significant new offshore hydrocarbon development and potential new fisheries. The nations of the Arctic—​and other interested States—​have responded to the changing Arctic Ocean in a number of ways. They have primarily acted through the Arctic Council, which has in recent years emerged as the preeminent forum for addressing pan-​Arctic issues. Until recently, most people knew of the Arctic Council from the analyses and assessments it produced, such as the Arctic Climate Impact Assessment and the Arctic Marine Shipping Assessment noted above. Over the past decade, the Arctic Council has taken a greater role in policy-​making, including with respect to Arctic Ocean issues. For example, the Arctic Marine Strategic Plan 2015–​2025 provides a framework for action based on four agreed goals: –​ Goal 1: Improve knowledge of the Arctic marine environment, and continue to monitor and assess current and future impacts on Arctic marine ecosystems; –​ Goal 2: Conserve and protect ecosystem function and marine biodiversity to enhance resilience and the provision of ecosystem services; –​ Goal 3: Promote safe and sustainable use of the marine environment, taking into account cumulative environmental impacts; and –​ Goal 4: Enhance the economic, social and cultural well-​being of Arctic inhabitants, including Arctic indigenous peoples and strengthen their capacity to adapt to changes in the Arctic marine environment.

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The Arctic Council has also served as the venue for the negotiation of binding agreements among the Arctic States, producing three such treaties beginning in 2011. Each of these three agreements—​on search and rescue, on marine oil pollution, and on scientific cooperation—​related largely if not exclusively to the Arctic Ocean. Nations have also taken action outside of the Arctic Council to address the changing Arctic Ocean conditions. The International Maritime Organization (imo) developed a set of amendments to existing regulations, now known collectively as the “Polar Code,” designed to strengthen the safety and environmental security of vessels operating in the Arctic and Antarctic regions. The Polar Code entered into force at the start of 2017. This marks an historic milestone in the imo’s work to protect ships and people aboard them, both seafarers and passengers, in the harsh environment of the waters surrounding the two poles.  But additional steps will be needed as Arctic shipping increases. Some current issues include the development of shipping measures by the United States and Russia in the Bering Strait region and consideration of a possible phase-​out or ban on heavy fuel oil in the Arctic. Nine nations and the European Union have also negotiated the “Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean,” which they signed on October 3, 2018. This treaty commits its parties not to authorize commercial fishing in the large high seas area in the middle of the Arctic Ocean until they have adequate scientific information with which to manage such a fishery properly and until there is an international mechanism in place through which to develop and adopt appropriate management measures. In the meantime, the parties will undertake a Joint Program of Scientific Research and Monitoring to advance understanding of the changes occurring in the Arctic Ocean as they may relate to potential fisheries. These examples of international cooperation, which have taken place at a time of serious friction between Russia and other Arctic States concerning other matters, offer hope of a willingness to find common ground in meeting shared challenges more broadly. That spirit of cooperation will play a critical role if the States in question are to succeed in taking the next steps together as the Arctic Ocean continues to change.

High Level Attention

Returning now to the ocean as a whole, we should note the extraordinary growth in the past decade in high-​level meetings concerned with ocean issues.

16 Balton Through 2017, the four Our Ocean conferences, launched by the United States and taken up by others, have generated commitments by governments, international organizations, philanthropies and other civil society groups valued at over usd $16.1 billion. The commitments focus on the key ocean issues of our time: sustainable fisheries, marine pollution, and climate-​related impacts on the ocean. States have also used these Conferences to announce or confirm their efforts to protect at least 12.4  million square kilometers of ocean—​an area more than the size of the United States and Mexico combined. Moreover, these Conferences will continue: in Indonesia in 2018, in Norway in 2019, and in Palau in 2020. The United Nations has also devoted remarkable time and resources to the ocean in the past few years. Agenda 2030, as noted above, included Sustainable Development Goal 14: conserve and sustainably use the world’s oceans, seas and marine resources. Following the adoption of all 17 Sustainable Development Goals, the United Nations decided to devote its first high-​level conference, in June 2016, to implementing Sustainable Development Goal 14. Like the Our Ocean Conferences, this gathering brought together States, international organizations, the private sector and civil society in a spirit of partnership and commitment, resulting in yet further initiatives to strengthen ocean conservation and governance. After almost a decade of preliminary discussions, 2017 marked the beginning of actual negotiations on a possible new implementing agreement to the 1982 Law of the Sea Convention, this one focused on biodiversity in marine areas beyond national jurisdiction. If delegations can overcome serious differences of view, particularly over the proposed benefit sharing arrangements for marine genetic resources, this agreement could reshape ocean governance in significant ways.

Some Concluding Thoughts

As noted above, this article has not described the entire range of ocean law and policy that has emerged over the past 25 years, but rather has provided some illustrative examples. Other examples from the fields of maritime security, maritime boundary delimitation, ocean energy and potential ocean mining, marine science, etc., certainly deserve mention in a fuller accounting. Still, from the examples offered, a few conclusions and predictions seem apt. –​ The high-​level attention accorded to ocean issues is not going away. The United Nations ocean conference will reconvene in 2020 and the Our Ocean

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Conference series will continue annually at least that long. Other events highlighting the challenges and opportunities will continue in parallel. –​ Conservation and management measures for ocean fishing will grow stricter even as demand for fishery resources continues to increase. The rfmo s will function more and more as part of a true system, with the United Nations General Assembly and the fao providing additional overarching guidance and direction. The prospect of a new agreement on biodiversity beyond national jurisdiction may provide further oversight of this system. –​ The major markets for fisheries products, particularly the European Union, Japan, and the United States, will make adjustments to their rules concerning the importation and sale of fishery products to make them more similar to one another. In doing so, they will have additional influence to spur sustainable fishing practices worldwide. If China also joins this effort, using its import market to drive sustainable fishing practices, that would add significantly to this effort. –​ The drive to establish mpa s will continue and will ultimately fulfill, and possibly surpass, the 10 percent threshold set in Sustainable Development Goal 14. Most of the mpa s will be within areas under national jurisdiction, but additional mpa s on the high seas will also come on line, particularly if an agreement on biodiversity beyond national jurisdiction contains an effective mechanism for establishing them. –​ In the Arctic, States concerned will create some stronger ocean governance mechanism or mechanisms to allow them to address the burgeoning growth in human activity in the Arctic Ocean. That mechanism may begin with a new marine science organization for the Arctic, but could evolve into a more robust entity over time. If all of this comes to pass, those involved in ocean law and policy may take considerable satisfaction in their work in the coming years. But, like Ozymandias, we should not assume that such achievements will last forever. That large statue lying in ruins in Egypt will continue to serve as a reminder of the limits of human undertakings.

Maritime Autonomous Surface Ships in International Law: New Challenges for the Regulation of International Navigation and Shipping Aldo Chircop* Abstract In 2017 the International Maritime Organization (imo)’s Maritime Safety Committee included a scoping exercise on Maritime Autonomous Surface Ships (mass) in its work agenda. The mass concept includes commercial vessels that may be fully or partially automated and includes crewless but remotely operated ships. The technologies that make this possible are on the horizon and expected to be developed and operationalized soon. Given that the appropriate crewing of vessels is a requirement in the United Nations Convention on the Law of the Sea, 1982, International Convention on Safety of Life at Sea, 1974 and other international maritime conventions, it is unclear at this time how these new technologies will be accommodated by the existing legal frameworks and the changes needed, as well as what is desirable from a social responsibility perspective. This presentation will explore the legal issues and discuss how existing rules could be adapted through interpretation or amendment to accommodate mass.

Keywords maritime autonomous surface ships  –​international navigation  –​shipping  –​ international maritime organization –​international maritime law –​automation –​ unmanned vessels

1

Introduction

International shipping is on the verge of a technological revolution with potentially far-​reaching implications for international law with the advent of

* Aldo Chircop is Professor of Law, Canada Research Chair (Tier 1) in Maritime Law and Policy at the Schulich School of Law, Dalhousie University, Halifax. The author’s PowerPoint is available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​beijing-​chircop.pdf.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_004

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maritime autonomous surface ships (mass). mass is provisionally defined as “a ship which, to a varying degree, can operate independent of human interaction.”1 Recently coined by the International Maritime Organization (imo), the mass concept includes commercial vessels with varying degrees of autonomy. They may be fully or partially automated or be crewless and remotely operated ships and levels of automation may vary during a voyage.2 The technologies that make this possible are on the horizon and expected to be operationalized in the near future. Artificial intelligence in the operation of onboard systems and perhaps an entire ship promises to be a game changer in a cost-​conscious industry whose regulation is premised on human presence on and control of the ship. At this time there is little understanding of how mass will impact maritime regulation and indeed the extent to which these vessels can be accommodated by existing rules. The imo is taking a concerted and cross-​divisional approach to scoping out the regulatory concerns raised to understand the full range of impacts before considering any regulatory action that might be needed. In 2017 the imo’s Maritime Safety Committee (msc) convening for the 98th session included a scoping exercise on mass in its work agenda with the aim of producing a study by 2020.3 The msc gave the matter detailed consideration at its 99th session in May 2018 and established a working group, with work to be continued by a correspondence group.4 Following completion of the scoping exercise it is expected that interim guidelines for mass will need to be developed.5 The Legal Committee (leg) also considered the matter at its 105th session and decided to include the subject on its work agenda and produce a study by 2022.6 Among others, discussion highlighted the need “to ensure

1 Report of the Working Group, IMO Doc MSC 99/​WP.9 (23 May 2018), annex. 2 The levels of autonomy are understood as follows: “1. Ship with automated processes and decision support: Seafarers are on board to operate and control shipboard systems and functions. Some operations may be automated. 2. Remotely controlled ship with seafarers on board: The ship is controlled and operated from another location, but seafarers are on board. 3. Remotely controlled ship without seafarers on board: The ship is controlled and operated from another location. There are no seafarers on board. 4. Fully autonomous ship: The operating system of the ship is able to make decisions and determine actions by itself.” Ibid. 3 Report of the Maritime Safety Committee on its 98th Session, IMO Doc MSC 98/​23 (28 June 2017), 78–​79. 4 Report of the Maritime Safety Committee on its 99th Session, IMO Doc MSC 99/​22 (5 June 2018) (msc 99 Report), 25–​33. 5 Report of the Working Group, supra note 1, 5. 6 Report of the Legal Committee on its 108th Session, IMO Doc LEG 105/​14 (1 May 2018), 20.

20 Chircop that there was no gap or discrepancy in the international legal framework related to mass” and “before undertaking the scoping exercise, the Committee should consider the desirability of mass, as no State had so far voiced its willingness or readiness to register mass, to allow mass into its waters or ports or to grant mass the right of safe passage.”7 The overall understanding is that the msc would lead and coordinate the work on this matter. The Marine Environment Protection Committee (mepc) and Facilitation Committee (fal) would also be invited to consider impacts on the instruments for which they are responsible.8 Onboard automation per se is not new. The industry has long introduced various levels of automation on the bridge and in the engine room. However, mass are being touted as a potential game changer in international and domestic shipping, in great part because of the significant reduction or elimination of the crew complement and a shift towards shore-​based personnel conducting remote monitoring and control, and using artificial intelligence and big data in autonomous decision-​making systems. The potential commercial interest lies in reducing the human factor in accidents, more energy efficient ships, lower operational costs, substantially reduced atmospheric emissions, elimination of sewage and garbage, and lower susceptibility to pirate attacks. On the other hand, these high-​tech ships will be expensive builds, will need to interact with crewed ships and smaller vessels, and will have systems that could pose cyber security challenges. They also trigger considerations for regulatory requirements, qualifications and training of shore-​based personnel, port inspections, and insurance, among other concerns. From both public and private law perspectives, the international regulatory regimes for shipping are largely premised on human presence and control.9 At this time there is legal uncertainty concerning the deployment of technologies that minimize further or remove altogether the human element on board. During msc 99 discussions it was observed that “the exercise, including the work conducted by the leg Committee, should not entail any kind of recognition or agreement by imo with regard to the use of mass.”10 This raises an interesting question as to the extent to which the existing legal framework across

7 Ibid. at 19. 8 msc 99 Report, supra note 4, 33. 9 For a general overview of how instruments in the international law of the sea and international maritime law are based on the ‘human factor’, see Aldo Chircop, ‘Testing International Legal Regimes:  The Advent of Automated Commercial Vessels’, 60 German Yearbook of International Law (2017): 109. 10 msc 99 Report, supra note 4, at 29.

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the international law of the sea and international maritime law stands in the way of these new technological and consequential commercial developments. In particular, what changes to the existing legal framework might be needed to ensure these new technologies will be deployed without compromising maritime safety, environment protection and maritime security, and ideally enhancing them? What is desirable from a social responsibility perspective? This subject raises challenges and opportunities for current international maritime regulation. Technology has long been a key driver in the regulation of shipping, such as the advent of steel hulls, steam engines, supertankers, onboard refrigeration, containerization, global positioning system (gps), automatic identification systems (ais) and so on. Generally, those technologies heralded new commercial practices. More often than not, international rules and standards tended to respond to commercial developments and casualties, usually in hindsight rather than proactively anticipating issues. More recently, there have been regulatory developments that are future oriented, such as the regulation of polar shipping and adoption of a strategy for the reduction of greenhouse gas emissions in shipping. mass offer the possibility of proactive regulation that may well help shape future technological developments, but such regulation will have to consider the risk of racing ahead on what is realistically achievable from a technological perspective. The risk could be exacerbated by the goal-​based approach to maritime regulation, which sets an outcome to be achieved against standards described as functional requirements, leaving the regulatees flexibility on how to meet the regulatory goal instead of complying with a prescribed standard, technology or procedure. There is a recent lesson to heed in this regard. On ballast water management, maritime regulation raced ahead with prescribing new rules and standards before the technologies needed were fully developed, causing difficulties for compliance. There is growing literature on the public and private law issues raised by mass and the topic is certain to generate greater scholarly attention.11 This 11

For example:  Eric Van Hooydonk, ‘The Law of Unmanned Merchant Shipping:  An Exploration,’ 20 Journal of International Maritime Law (2014):  403; Paul W.  Pritchett, ‘Ghost Ships:  Why the Law Should Embrace Unmanned Vessel Technology,’ 40 Tulane Maritime Law Journal (2015–​2016): 197; Hannah Stones, ‘Objective and Subjective Safety in Unmanned Shipping,’ 16(9) Shipping and Trade Law (2016): 4; Trudi Hogg and Samrat Ghosh, ‘Autonomous Merchant Vessels: Examination of Factors that Impact the Effective Implementation of Unmanned Ships,’ 8 Australian Journal of Maritime and Ocean Affairs (2016): 206; Michal Chwedczuk, ‘Analysis of the Legal Status of Unmanned Commercial Vessels in U.S. Admiralty and Maritime Law,’ 47 International Journal of Machine Learning and Cybernetics (2016):  123; Robert Veal and Michael Tsimplis, ‘The Integration of Unmanned Ships into the Lex Maritima,’ Lloyd’s Maritime and Commercial Law Quarterly

22 Chircop chapter adds to this literature by focusing on the international public law regulatory issues concerning mass under the existing framework for commercial shipping and by exploring policy and legal options to address them. The chapter starts by considering competences and jurisdiction over mass in the international law of the sea and follows with discussion of the international maritime law rules and standards that nourish the jurisdictions concerned, before providing concluding observations. 2

Competences and Jurisdiction over mass

An appropriate starting point for a discussion of the regulatory challenges that mass raise is competencies and jurisdictions in the international law of the sea and international maritime law. The United Nations Convention on the Law of the Sea, 1982 (losc)12 provides far reaching protections for international navigation and for this purpose sets out delicate jurisdictional balances over international shipping between flag, port and coastal States. Those balances are frequently supported by the expectation that the respective powers to be exercised are to be informed, guided and even prescribed by international rules, standards, procedures and generally accepted practices with a central role assigned to the competent international organization with respect to international shipping matters. Although not mentioned by name, this organization is clearly the imo.13 Thus, the imo plays a critical role in nourishing the jurisdictional rights and obligations with rules and standards for international shipping and it does this through a corpus of international maritime law consisting of over 50 treaty instruments and hundreds of codes, recommendations and guidelines.14 The imo administers this body of regulation through a system of structures, substructures and processes designed to provide expertise and enable inputs from member delegations and organizations granted consultative status.15 The (2017): 303; Robert Veal, ‘Unmanned Ships on the IMO Work Agenda,’ 17(5) Shipping and Trade Law (2017): 1; Chircop, supra note 9. 12 United Nations Convention on the Law of the Sea, 10 December 1982 (entered into force 16 November 1994), 1833 UNTS 396 (losc). 13 ‘ “Competent or Relevant International Organizations” under the United Nations Convention on the Law of the Sea,’ 31 Law of the Sea Bulletin (1996): 79. 14 List of Codes, Recommendations, Guidelines and other Environment-​ related Non-​ mandatory Instruments, Note by the Secretariat, IMO Doc 70/​INF.7 (10 August 2016). 15 For a discussion of imo structures and processes, see Aldo Chircop, ‘The International Maritime Organization’ in Donald R. Rothwell et al. (eds.), The Oxford Handbook on the Law of the Sea (Oxford University Press, 2015), 416.

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checks and balances in the losc are in effect mirrored by checks and balances in the regulatory system. This is the system that will scrutinize the regulatory response to mass and related technologies and their impact on maritime safety, environment protection and security. Against this backdrop, the jurisdictions enjoyed by flag, port and coastal States over international shipping will naturally extend to mass and will be guided by the international rules and standards for these technologies developed through the imo. The flag State has the right to register any class of ship, including mass,16 and prima facie these ships will enjoy international navigational rights irrespective of their class, as in the case of all other ships.17 Those rights are accompanied by the flag State’s due diligence duty to exercise effective jurisdiction and control over its ships for administrative, technical and social matters.18 More specifically, this duty relates to:  taking measures necessary to ensure safety at sea; ensuring ships are in the charge of properly qualified master and officers and crewed in accordance with their class; ensuring that the master and crew are conversant with and required to comply with international safety, collisions avoidance, pollution prevention and radio communications rules; ensuring conformity with generally accepted international regulations, procedures and practices and taking any steps necessary to secure their observance; requiring the master to offer assistance to persons in distress at sea; ensuring compliance with international rules and standards; and providing for effective enforcement, including preventing the operation of ships not in compliance with manning requirements.19 As will be readily obvious from the above, mass could pose challenges for the flag State in performing its due diligence duty, particularly with respect to the rules on manning. On the one hand the interpretational difficulties posed could be significantly alleviated with appropriate regulatory responses from the imo, but on the other hand imo regulation has to be compatible with the rights and obligations of states under losc.20 A contemporary and correct interpretation of the provisions of losc would open the door for imo regulation of mass on issues that would otherwise stand as obstacles. For example, the manning requirement that a ship must be “in the charge of” could be extended to include a shore-​based team that is in control of the ship. The human competency and qualification requirements could be extended to the shore-​based 16 17 18 19 20

losc, supra note 12, art 91. Ibid. art 90. Ibid. art 94. Ibid. arts 94, 98, 217. Ibid. art 311(2).

24 Chircop personnel in control of the class of the mass concerned. The radio communication requirements could also be performed by a shore-​based crew so long as they are able to maintain situation awareness. More of an issue is how the flag State might require the provision of humanitarian assistance at sea when there are no master and crew on board and how it will be able to exercise effective jurisdiction and control when the mass is fully autonomous or remotely controlled from another jurisdiction. The former could potentially be addressed by the imo by establishing exceptions for such vessels under the International Convention for the Safety of Life at Sea. The flag State’s duty to exercise effective jurisdiction and control could be difficult to discharge in the case of a fully autonomous or remotely operated vessel when the shore-​based team is located in a jurisdiction other than the flag State. The flag State will face constraints of territoriality in exercising jurisdiction over persons (as distinct from a ship) in a foreign jurisdiction. Its ability to exercise extra-​territorial jurisdiction will be limited, especially if the shore-​based team consists of non-​nationals. Nonetheless the losc duty of the flag State remains. The difficulty in discharging it does not speak to an interpretation issue in the convention, but rather to the due diligence responsibility of the flag State to ensure it is in a position to exercise effective jurisdiction and control. A losc state party has a duty to discharge its obligations in good faith:21 it has a right to register ships over which it can exercise jurisdiction and control and that right is accompanied by a core obligation. This author argues that where a state is unable to exercise jurisdiction and control over mass, it should refrain from registering such ships and lead other jurisdictions to believe that it is in control when it is not.22 It should leave the registration of mass to jurisdictions that are in a position to exercise effective jurisdiction and control over the shore-​based team charged with the vessel operation. In a

21 22

Ibid. art 300. In recent years the UN General Assembly has taken a firmer position with flag States that do not discharge their duties. In 2013 it urged ‘flag States without an effective maritime administration and appropriate legal frameworks to establish or enhance the necessary infrastructure, legislative and enforcement capabilities to ensure effective compliance with and implementation and enforcement of their responsibilities under international law, in particular the Convention, and, until such action is taken, to consider declining the granting of the right to fly their flag to new vessels, suspending their registry or not opening a registry, and calls upon flag and port States to take all measures consistent with international law necessary to prevent the operation of substandard vessels.’ ‘Oceans and the Law of the Sea’, UN General Assembly Resolution UN Doc A/​68/​L.18 27 November 2013 para 147.

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way, this approach to the registration of mass may serve to enhance the beneficial link of the vessel to the flag State. Coastal and port States enjoy substantial jurisdiction over ships navigating into ports and while in port. In general, the coastal State’s jurisdiction over international shipping exercising international navigation rights during passage through the territorial sea and Exclusive Economic Zone (eez) is significantly more limited. The coastal State has the power to regulate innocent passage through the territorial sea in a manner that does not apply “design, construction, manning or equipment [standards] unless they are giving effect to generally accepted international rules or standards.”23 Clearly this constraint applies to the regulation of mass, but it can be argued that until the imo regulates such ships there is nothing to prevent the coastal State from continuing to require manning of all ships exercising innocent passage because in doing so it would be applying international rules in losc, the International Convention for the Safety of Life at Sea, 1974 (solas)24 and International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (stcw).25 There could be strong reasons why a coastal State would insist on manning of mass while in passage in areas of its territorial sea, such as where there is heavy traffic, critical infrastructures at sea such as those for the production of renewable energy, and accommodation of other ocean uses such as aquaculture farms, fishing and recreational boating. This author is of the view that such coastal State laws and regulations governing the passage of mass would not constitute hampering of innocent passage. And when the imo embarks on the actual regulation of mass, it will be important for the organization to recognize that there might be navigational situations when some human presence on board of an otherwise autonomous vessel is highly desirable. The coastal State’s ability to require manning on ships exercising the right of transit passage is less clear. In recognition of the special status of straits used for international navigation, the losc poses additional constraints on the coastal State in regulating transit passage. It may adopt laws and regulations for the safety of navigation and the regulation of maritime traffic as provided in Article 41, which concerns sea lanes and traffic separation schemes.26 In regulating mass, the coastal State is in a position to require such vessels to navigate in sea lanes and traffic separation schemes adopted through the imo, but not necessarily to require them to be manned, unless this is an international 23 24 25 26

losc, supra note 12, art 21. Adopted 1 November 1974 (entered into force 25 May 1980), 1184 UNTS 2 (solas). Adopted 7 July 1978 (entered into force 28 April 1984), 1361 UNTS 2 (stcw). Ibid. art 42(1)(a).

26 Chircop rule or standard adopted by the imo. The coastal State could regulate transit passage of mass for the purpose of prevention, reduction and control of pollution, but only by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait.27 In any case of coastal State regulation of transit passage by mass, its legislation must “not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage …”.28 Where mass navigate through internal waters and while in port, in principle they are subject to the coastal/​port State’s full territorial jurisdiction. In practice, and in the interest of facilitating maritime trade, most coastal and port States tend to apply international maritime safety, environmental and security regulations in exercising jurisdiction over international shipping in their ports. As international regimes are adapted by the imo to accommodate mass, this can be expected to continue, unless there emerge security concerns or potential impacts on port operations and the well-​being of coastal communities and local economies. There do not appear to be interpretational issues for losc provisions when mass vessels are in foreign ports. There could be practical issues to be addressed in exercising port State control,29 for example in requesting permission to board and inspect the unmanned vessel and interview relevant personnel when the shore-​based team is located in a different jurisdiction. 4

Implications for International Maritime Law

The international maritime conventions are largely premised on a human presence on board. Ship construction and bridge ergonomics take into consideration the use of the vessel as a safe work space and as appropriate accommodation and passageways for seafarers. The design of the bridge and bridge resource management are based on the assumption that humans are onboard when navigating the vessel.30 There is no such standard for a shore-​based control room for mass and clearly this will be necessary. Similarly, safety aspects in the design and equipping of the ship assume a human presence on board. If a vessel is crewless, the solas and Convention on Load Lines, 196631 and 27 28 29 30 31

Ibid. art 42(1)(b). Ibid. art 42(2). Ibid. art 218. solas, supra note 24, chap v, reg 15. Adopted 5 April 1966 (entered into force 21 July 1968) 640 UNTS 133.

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27

protocol of 198832 requirements for life boats, mustering stations, deckhouse accommodations, guard rails, safe passageways, etc., may not be needed to the same extent as a crewed vessel, if at all. The human factor plays a central role in the control and navigation of the ship. solas equates crewing with a ship’s safety requirement and outcome. It provides that “from the point of view of safety of life at sea, all ships shall be sufficiently and efficiently manned.”33 The crew must maintain a continuous watch34 and provide danger messaging and weather reporting to other ships and authorities.35 The continuous watch or watches must be appropriate to the prevailing circumstances and conditions on all seagoing ships at all times.36 solas includes crew requirements for distress situations.37 The various documentary and reporting requirements, such as the keeping of record books and provision of notices are similarly based on humans discharging such tasks. The Convention on the International Regulations for Preventing Collisions at Sea, 197738 establishing the Rules of the Road for safe navigation at sea is similarly premised on “good seamanship”. Thus the expected conduct of those in charge of the navigation of a ship relies on human training, knowledge and judgment. There is no exemption from compliance with the rules or from exercising the precaution necessary and expected in the ordinary practice of seamen.39 There is a requirement for proper lookout by all means available –​ including eyes and hearing!40 Leaving the crewing element aside, mass will raise other issues in the rules when they interact with other vessels, especially crewed vessels, because they do not enjoy a privileged right of way.41 Vessels in the vicinity of one another are expected to maintain each other’s course and to be ready to communicate, and while course tracking is already automated, the communication requirement would need to be examined. All ships are required to carry lights and shapes for day time and night navigation, but at this time mass do not have dedicated lights and shapes to identify them from other traffic. As many as 75 to 96 per cent of accidents are attributed to human 32 33 34 35 36 37 38 39 40 41

Protocol of 1988 Relating to the International Convention on Load Lines, 1966, adopted 11 November 1988 (entered into force 3 February 2000), Can TS 2010 No 17. solas, supra note 24, chap v, reg 14. Ibid. chap iv, reg 12. Ibid. chap v, reg 31. Ibid. chap viii, reg 1. Ibid. chap iv, reg 16. Adopted 20 October 1972 (entered into force 15 July 1977), 1050 UNTS 16. Ibid. rule 2(a). Ibid. rule 5. Ibid. rule 3.

28 Chircop error42 and collisions frequently involve mistakes on both ships involved. In the case of a mass collision with another vessel, especially a crewed vessel, it remains to be seen what impact this would have on the attribution of contributory negligence. These and other functions are performed by properly trained and certified crews. States are expected to require that companies ensure their ships are manned in compliance with applicable safe manning requirements of the administration.43 They are responsible to employ certificated seafarers, in compliance with stcw “for service on their ships” (i/​1).44 The imo’s Principles of Minimum Safe Manning provide some flexibility, in that companies “may increase or decrease manning levels depending on availability and appropriate procedures and of specific capability enabling technology/​automation.”45 But to date the expectation is that ships are manned.46 The provision of services to the ship, such as pilotage, is similarly based on interactions between the master and officer on watch on the one hand and the pilot boarding the ship on the other hand. The response by the master of the ship to a distress call from another vessel is consistently premised on assistance provided by humans. If seafarers are removed from ships, requirements for the proper training and certification of shore-​based crews will be needed. At this time stcw does not apply to shore-​based crews and shore-​based personnel are not considered “seafarers”.47 In addition to stcw, the occupational health and safety protections of seafarers are currently governed by the Maritime Labour Convention, 2006, but the definition of seafarer in this instrument precludes the inclusion of shore-​based personnel.48 Instruments on marine environment protection from shipping are also impacted by mass. In the case of fully crewless ships, particular International

42 43 44 45 46 47 48

Allianz, Safety and Shipping Review 2017, 3, online . stcw, supra note 25, reg i/​14. Ibid. reg i/​1. imo Assembly, Principles of Minimum Safe Manning, Resolution A.1047(27) of 30 November 2011, IMO Doc. A 27/​Res.1047 (20 December 2011). Human Element Vision, Principles and Goals for the Organization, Resolution A.947(23) adopted 27 November 2003, IMO Doc. A 23/​Res.947 (26 February 2004). The term ‘ “seafarers” should be understood as persons competent to perform the designated duties and responsibilities on board the ship.’ Report of the Working Group, supra note 1, at 3. Seafarer means ‘any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies.’ Maritime Labour Convention, adopted 23 February 2006 (entered into force 20 August 2013) 45 ILM 792, art ii(1)(f).

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Convention for the Prevention of Pollution from Ships, 1973/​78 (marpol)49 provisions may become redundant to such vessels, such as Annexes iv on sewage and v on garbage, thus justifying the case for exemptions from certain requirements, such as related record keeping, as was the case with unmanned non-​self-​propelled barges. The requirement of familiarity with procedures for ballast water operations on board under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (bwm)50 convention would have to be transferred to shore-​based personnel who may have remote control of the vessel. The marpol and bwm conventions will likely be addressed without major concerns. More of an issue can be expected to be the navigation of mass vessels with due regard to the potential of striking unseen animals, such as marine mammals. This is an ongoing concern with crewed ships and the additional look-​out needed and recommended slower speeds would need to be addressed.51 Also challenging will be the case of a mass vessel in need of assistance and a place of refuge. The current imo guidelines on this matter anticipate a three-​way communication process between a coastal State authority, salvor and master on board the ship.52 The role of the master is key because this person is usually the one with the best information and appreciation of the actual condition of the ship and whose communications to the coastal State authorities are vital for the assessment of the risk and decision-​making. mass raise maritime security concerns and may require a need to revisit the International Ship and Port Facility Security Code (isps Code)53 to accommodate them. A substantial concern is cyber security. The isps Code defines “ship security plan” as “a plan developed to ensure the application of measures on board the ship designed to protect persons on board, cargo, cargo transport units, ship’s stores or the ship from the risks of a security incident.”54 The security plan will need to include cyber threats and preventative measures. 49 50 51 52 53 54

Adopted 2 November 1973 (not in force), 1340 UNTS 184, as amended by the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, adopted 17 February 1978 (entered into force 2 October 1983), 1340 UNTS 61. Adopted 13 February 2004 (entered into force 11 September 2017), IMO Doc. BWM/​ CONF/​36 (16 February 2004). Guidance Document for Minimizing the Risk of Ship Strikes with Cetaceans, IMO Doc. MEPC.1/​Circ.674 (31 July 2009). Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23) of 5 December 2003, IMO Doc. A 23/​Res.949 (5 March 2004). Adopted by SOLAS/​CONF.5 Res.2 on 12 December 2002 (effective on 1 July 2004), as amended. Ibid. reg A/​2.

30 Chircop The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 (sua Convention) is also potentially impacted. For example, the list of offences against a ship and persons on board a ship would likely benefit from interpretation or further development to take into consideration a cybercrime against the ship.55 The amending protocol of 2005 enlarged the list of offences, but still fell short of identifying hacking of a ship’s systems as an offence.56 Other provisions of the sua convention as amended will need to be studied to determine how it would apply to mass. 5

Conclusion

The imo’s strategic directions for 2018–​2023 provide that the organization will keep “under review the technical and operational safety aspects of all types of ships.”57 The organization’s work on autonomous shipping is only just starting. We can expect the scoping exercise to lead to the adoption of initial guidelines for mass and eventually these will be followed by a longer-​term regulatory agenda. It is highly desirable for the imo to take a proactive and systemic legal response, rather than reactive and instrument-​by-​instrument adjustments to accommodate mass. Indeed, at this time, it may be said that the imo response is proactive but only because the pertinent technologies remain largely at the concept or pilot stage. However, the history of maritime regulation shows that frequently the regulator has been challenged to maintain pace with technological and commercial development. It will be important for the imo to accelerate the pace on this file as it is conceivable that its efforts, despite the early start, might be overtaken by technological and commercial developments. It will also be important to ensure constructive and consistent interpretation of pertinent provisions of the international maritime conventions, and likely also the losc, although the interpretation of the latter is a responsibility of the parties to this instrument and not the imo.

55 56 57

Adopted 10 March 1988 (entered into force 1 March 1992), 27 ILM 668, art 3. The offence concerning seizure or the exercise of ‘control over a ship by force or threat thereof or any other form of intimidation’ does not easily extend to hacking of a ship’s systems. Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted 14 October 2005 (entered into force 28 July 2010), IMO Doc LEG/​CONF 15/​21 (1 November 2005), art 4. Strategic Plan for the Organization for the Six-​year Period  2018 to 2023, Resolution A.1110(30) adopted on 6 December 2017, IMO Doc A 30/​Res.1110 (8 December 2017).

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The imo will need to ensure integration of the various efforts on mass. Although consideration of the issue is being led by the msc, it appears that the leg committee will undertake a separate focused study on its conventions. It would have been desirable to ensure a truly systemic approach for the various committees to work through a single structure on this issue, such as a joint working group. It will be important for mass to operate under the no more favourable treatment principle, although in the initial stage it is possible that there may be regulatory exemptions. In the long run mass vessels will be engaged in trades and competing with crewed ships and should not enjoy any particular regulatory advantage. There should be a level playing field for all commercial operators.

pa rt 1 Spotlight on Regional Cooperation

∵

­c hapter 1

Military Cooperation and International Custom in the Asia-​Pacific Region John G. Hannink* Abstract This presentation examines common interests among the United States and countries in the Asia-​Pacific region, as well as prospects for continued and increased cooperation. It focuses on the notable progress that has already been made in conducting military exercises, counter-​piracy operations, and disaster response, and efforts to continue to strengthen our collaboration in these areas. The remarks also highlight the importance and mutual benefits of cooperation to ensure peace, stability, effective communication, and economic prosperity in the Asia-​Pacific maritime environment.

Keywords military –​ cooperation –​ Asia-​Pacific region –​ economics –​ peace –​ stability



Importance of the Asia-​Pacific to the United States

There is no region more vital to the security and prosperity of the United States, and truly to that of the world, than the Asia-​Pacific. In our geography and in our outlook, in our history and our future, the United States is inextricably tied to this region. –​ The United States has over 65,500 km of Pacific shoreline, as compared to less than 46,000 km of Atlantic shoreline. * John G. Hannink is a Vice Admiral in the United States Navy. He is currently serving as the 44th Judge Advocate General of the Navy, after 34 years of service as a pilot and a judge advocate. Any views expressed in the remarks are his own and do not necessarily represent the views of the U.S. Department of Defense or the U.S. Government. This work was completed as a part of Vice Admiral Hannink’s official duties; as such, it is in the public domain and is not subject to copyright law.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_005

36 Hannink –​ Five of the United States’ seven defense treaties are with Asia-​Pacific countries. –​ In the past, we were drawn into major conflicts in the Asia-​Pacific. At ­present, it is our economic interests that are focused, in large part, on this ­region. – 7 of our top 8 trading partners, with whom we have nearly $2 trillion in annual trade, are in the Asia-​Pacific. This includes approximately $650 billion of goods and services passed between the United States and China annually, and $270 billion per year in trade with asean countries. The United States’ interest in the Asia-​Pacific region is historic, deep, and enduring. For more than 70 years, we and our allies and partners have worked to create unprecedented peace and prosperity. We have done this together through a firm dedication to the rules-​based order, under which disputes are resolved peacefully and there is unimpeded lawful commerce and freedom of the seas. If we are to continue to enjoy the prosperity we have all come to rely upon, we must continue to cooperate in maintaining this rules-​ based order.

Regional Cooperation

Cooperation at this level requires open communication, and often difficult compromise, but we have made great strides together. A key example is the Code for Unplanned Encounters at Sea, or “cues”. cues was agreed to at the 2014 Western Pacific Naval Symposium, which was hosted by the Chinese People’s Liberation Army Navy in Qingdao. While it is not legally binding, cues permits repeated and effective communication between military forces. The safety procedures, communications, and maneuvering guidelines ensure predictability and thereby reduce the chance of mishap when our naval ships encounter each other at sea. cues has resulted in more professional interaction between our military forces and has made all of our navies and sailors safer. Cooperation between nations is also bolstered by our militaries operating together in combined exercises, such as the U.S. Navy’s Rim of the Pacific, or rimpac, exercise held every two years in Hawaiian waters. rimpac brings together 26 Pacific countries, with representation from non-​Pacific regions, for realistic training to advance the participants’ ability to co-​operate across the spectrum of naval mission sets. Exercises in 2016 on submarine search and rescue and disaster relief missions prepared us to respond more smoothly to relieve suffering and to project aid into even the most challenging environments. Practice at rapid, efficient explosive ordnance disposal, multi-​day diving and

Military Cooperation and International Custom

37

salvage, air to land transfers, and large-​scale fleet movements means that we will be prepared to react together to any crisis that confronts us, from counter-​ piracy operations to enforcement of UN sanctions against those who threaten the peace and security of the international community. The United States has also long worked with asean on supporting economic integration, expanding maritime cooperation, cultivating emerging leaders, promoting opportunity, and addressing transnational challenges throughout the Asia-​Pacific. Beginning as a dialogue partner in 1977, our cooperation accelerated through the 1990s, and continues today through our dedicated Mission and our Resident Ambassador to asean. We have worked with asean through political and security exchanges to address maintenance of peace and stability in the region, South China Sea disputes, and the threat of terrorism. Our mutual engagement on economic issues has enabled the continued blossoming of prosperity across the region and the successful establishment of a Trade and Investment Framework Agreement with asean to expand trade and resolve our disputes peacefully and equitably. Since 2016, u.s.-​asean Connect has deepened our economic cooperation with asean states, facilitating greater investment and broader spread of development than ever before. Our partnerships are also strengthened when we support each other through challenging times of national crisis. The overwhelming response to the effects of natural disasters  –​from the 2004 earthquake that triggered tsunamis on Sumatra, India, Thailand, Myanmar, Sri Lanka, and Somalia, to the 2011 tsunami striking Japan, to the 2013 Typhoon Haiyan affecting China, Micronesia, the Philippines, and Vietnam –​showed the commitment of the Asia-​Pacific community. Countless rescue workers and supplies poured into the affected areas. Navies from the United States, Australia, Japan, and China, to name a few, cooperated in delivering supplies and in providing medical care. Funds flowed from many of our governments and our people. These outpourings of cooperation and good will show us that our shared goals and friendship greatly outweigh our differences, on both personal and governmental levels.

U.S.-​China Cooperation

The same can be said about the relationship between the United States and China. While our differences are oftentimes what make headlines, we have a shared history of cooperation as well. –​ Some notable examples, in addition to those already mentioned, include U.S. –​Chinese anti-​piracy exchanges in the Gulf of Aden.

38 Hannink –​ The memorandum on Rules of Behavior, restating clearly and in a functional way customary international and treaty law, has improved how the United States and China interact in the air and at sea, decreasing the risk of mishap and improving our ability to operate safely when in proximity to each other. –​ Recurring engagements between our militaries, such as Military Maritime Consultative Agreement meetings, allow meaningful exchanges on safety in the maritime and air environments, provide fora to identify and work toward common goals, and allow our two countries to candidly explore our differences in opinion and practice. –​ Our joint disaster response exchanges, most recently held last November in Oregon, United States, foster direct ties between our militaries, enhance mutual understanding, reduce the risk of misperception, and prepare us to cooperate in emergencies in the Pacific. These examples show the U.S. and China have a variety of common interests and the drive to find collaborative solutions, and that our shared goals greatly outweigh our differences.

Economic Prosperity

That fact is most clear when considering economic prosperity. The interests of the United States, China, Japan, Indonesia, Singapore, Korea, and all other nations represented here today converge on a desire to maintain the unprecedented period of development and peace that has fueled the Asia-​Pacific and world economies for more than 70 years. The key to continued progress is international trade, which is the lifeblood of this modern global economic order, and the key to that trade are the oceans it passes over. The once imposing physical barriers are now vital conduits for commerce and communication. Nowhere is that truer than the Asia-​Pacific, whose population is surrounded and connected by ocean waters. The peace, stability, and economic prosperity of this region and its waterways affect everyone on the planet. Maintaining them requires continued cooperation and mutual respect. The customary rights, freedoms, and uses of the seas, including military activity and freedom of navigation outside territorial seas, and innocent and transit passage through territorial seas have provided the openness and the security that allows all maritime nations to develop robust trade, fuels a potent global economy, and has lifted millions out of poverty. This customary law of the sea is the product of centuries of state practice, engagement, and negotiation, and is clearly reflected in the Law of the Sea Convention. Everyone’s

Military Cooperation and International Custom

39

commerce benefits when nations respect each other’s rights and freedoms, including navigation, overflight, laying cables, and military activity. Continued economic prosperity requires true freedom of the seas, built upon the stability of the rules-​based international order. Settling disagreements peacefully reinforces the rules-​based order. The South China Sea is a perfect example of the nexus of free seas and spreading prosperity; it requires peaceful, rules-​based cooperation to remain so. Many countries rely on the South China Sea to move the majority of their total trade. These overlapping and joint interests necessitate close cooperation, including adherence to international standards of safe navigation and reciprocal conduct, and domestic legislation and regulations that are consistent with international law and respect for the rights of other states. Actions by any state that impair or deny another state’s high seas freedoms, overflight, or other navigational rights undermine the rules-​based order of the seas and the stability underpinning our joint prosperity and peace. Stability results only from countries working in partnership based on shared obligations and mutual benefits in upholding international norms. The United States stands as a ready partner to the community of Asia-​Pacific nations as we look forward to continuing cooperative efforts in the region. We also look forward to working together to face new challenges and opportunities, such as the evolving uses of autonomous vessels, the cyber domain, and space. All offer the potential of great benefit to our nations, as well as the potential for differing interpretations, divergent efforts, or even conflict. We must approach them in the same spirit of partnership and cooperation, based on shared obligations and benefits that have allowed us to build our current rules-​based international order. I am proud to serve in a U.S. Navy whose persistent global presence has reinforced the vital importance of free and open waterways that connect our world – not just for the United States, but for all nations. The unimpeded flow of goods, travelers, and information is foundational to the functioning of the global economy. We owe it to our world community to find a way to preserve and extend the stability and security that we have so painstakingly built and maintained in the Asia-​Pacific, and that has granted us all unprecedented prosperity. I look forward to our continued work together.

­c hapter 2

Peace through Joint Marine and Cruise Tourism in the Disputed South China Sea Islands: Opportunities and Challenges Yann-​huei Song* Abstract China opened the disputed Paracel Islands to marine and cruise tourism in April 2013. Although the cruise route was established for a variety of purposes, helping assert China’s territorial and maritime claims to the disputed islands in the South China Sea is considered an important one with political and diplomatic implications. This type of so-​called “patriotic tourism” has the potential to increase tensions in the South China Sea. It also gives rise to problems for successful implementation of the 21st Century Maritime Silk Road Initiative. This chapter explores the idea of promoting joint marine and cruise tourism in the disputed South China Sea areas so that peace, stability and prosperity can be enhanced through maritime cooperation and development in this important East Asian semi-​enclosed sea.

Keywords tourism – Paracel Islands – South China Sea – Lima Declaration – blue economy – Hainan Province – cooperation

i

Introduction

Open and sustainable tourism is often recognized for its ability to drive peace, security and understanding because it pressures governments to cease hostilities and establish more harmonious relations in order to attract more tourists. As people gain exposure to other countries’ maritime claims and rights to use * Yann-​huei Song is a Research Fellow, Institute of European and American Studies, Taipei, Taiwan and Global Fellow, Peace Research Institute Oslo (prio) Oslo, Norway. Author’s PowerPoint available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​beijing-​song.pdf.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_006

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the waters of disputed areas through travel and tourism, their tolerance and acknowledgement of the rights of others should increase. It is suggested that an open and sustainable tourism sector will be supportive of higher levels of positive peace, and that countries with more open and sustainable tourism sectors tend to be more peaceful.1 An example demonstrating the important role played by open and sustainable tourism in promoting peace, security and understanding between countries and people is the practice of Canada and the United States in the Gulf of Maine with respect to joint management and protection of the disputed Machias Seal Island and its adjacent waters. Machias Seal Island is a low-​lying rocky offshore island located roughly 19 kilometers (12 miles) from the nearest points in the United States (Cutler, Maine) and Canada (Grand Manan Island).2 The island has been described as a unique place to visit, and the next best thing to heaven to avid bird watchers.3 Machias Seal Island is designated a bird sanctuary by the US and Canadian Wildlife Services.4 Ownership of the island has been disputed for many years, with both the US and Canadian governments claiming sovereignty.5 Each year, Machias Seal Island becomes the summer nesting home for a great number and variety of migratory seabirds including Atlantic Puffins, Razorbills, Common Murres and Arctic Terns. Other species present during the summer months are Common Terns, Black Guillemots and Common Eiders. In addition, seabirds such as petrels, shearwaters and gannets are frequently 1 See Tourism as a Driver of Peace: Quantitative Analysis on the Link between Peace and Tourism, World Travel & Tourism Council, May 2016, at 1–​2, available at https://​sp.wttc.org/​-​/​ media/​files/​reports/​special-​and-​periodic-​reports/​tourism-​as-​a-​driver-​of-​peace_​full-​report-​-​-​ web.pdf?la=es. 2 For more information, visit http://​lighthousefriends.com/​light.asp?ID=1371 (accessed 2018/​3/​29). 3 Machias Seal Island, Sea Watch Tours, at http://​www.seawatchtours.com/​puffins-​and-​ machias-​seal-​island.html. 4 See Machias Seal Island Migratory Bird Sanctuary, Environment and Climate Change Canada –​ Atlantic Region, Canadian Wildlife Service, available at https://​www.canada.ca/​ en/​environment-​climate-​change/​services/​migratory-​bird-​sanctuaries/​locations/​machias-​seal-​ island.html (accessed 2018/​3/​29) and Machias Seal Island: US and Canada collaborate on bird sanctuary management despite sovereignty dispute, 1 Times (Gulf of Maine) 1a (Summer 1997), available at http://​www.gulfofmaine.org/​times/​summer97/​page1a.html. 5 See David L. VanderZwaag, The Gulf of Maine Boundary Dispute and Transboundary Management Challenges: Lessons to Be Learned, 15 Ocean And Coastal Law Journal 241 (2010); Sue Nichols, The Gulf of Maine Boundary: Reviewing the Issues, 4–​6, Cadastral Studies Occasional Paper No. 12; Beverly Cook, Lobster Boat Diplomacy: The Canada-​US Grey Zone 29 MARINE POLICY 385, 385–​90; Ted L.  McDorman & David L.  VanderZwaag, American-​ Canadian Boundary Dispute, and Cooperation, in Max Planck Encyclopedia of Public International Law (Oxford University Press 2013), available at http://​opil.ouplaw.com/​ view/​10.1093/​law:epil/​9780199231690/​law-​9780199231690-​e579.

42 Song sighted on the water, and many other shore and land species are found on the island.6 Machias Seal Island is the largest puffin colony on the Maine coast, with thousands more birds than any other site. Seabird watching tours are conducted from mid-​May through mid-​August every year.7 The American and Canadian bird-​watching businesses bring tourists to the island by chartered boats. Sea Watch Tours is the only company in Canada with access to the island,8 but the American Bold Coast Charter Company also operates bird-​watching tours visiting the island. The cost of an approximately five-​hour seabird watching tour between Cutler Harbor of Maine to Machias Seal Island is approximately usd $150.9 Another example of continuous tourism operation on disputed islands is the scuba-​diving tourism resort of Pulau Layang Layang (Swallow Reef) located in the southern reaches of the Spratly archipelago in the South China Sea, a spot occupied by Malaysia in 1983. Ownership of this land feature is also claimed by China, Taiwan, and Vietnam. In 1991, Malaysia began construction on a dive resort on the feature.10 Swallow Reef covers an area of 14-​square kilometers (land area 0.35 Km2) and the resort is dubbed as one of the world’s best dive destinations due to its breathtaking underwater scenery featuring vibrant coral walls and large sea animals in crystal clear waters with visibility ranging between 30 and 60 meters year-​round. Hammerhead sharks, pigmy seahorses, Jacks and Barracudas, as well as rare manta rays are among the unique marine life on display.11 It is the only land feature located in the disputed Spratly archipelago that is open to international tourists. In 2018, a six-​day, five-​night scuba-​diving tour costs usd $1,500 during the regular season, and usd $1,650 during the high season.12 In 1991, Choon-​ho Park, a distinguished Korean international law expert and former Judge of the International Tribunal for the Law of the Sea, wrote, 6 7 8 9 10

11 12

For more information, visit the website of Sea Watch Tours at http://​seawatchtours.ca/​ (accessed 2018/​3/​29). Machias Seal Island, supra note 3. Sea Watch Tours, supra note 6. For more information about the tour, visit https://​www.boldcoast.com/​ (accessed 2018/​3/​ 29). Ghazali Musa, Sharifah Latifah Syed A.  Kadir, and Lawrence Lee, Layang Layang:  An Empirical Study on Scuba-​Divers’ Satisfaction, 2 Tourism in Marine Environments 2 (2006), available at https://​www.researchgate.net/​publication/​233645574_​Layang_​ Layang_​An_​Empirical_​Study_​on_​Scuba_​Divers’_​Satisfaction. For more information, visit the official site of Layang Layang Island Resort Malaysia at http://​www.layanglayang.com/​. For accommodation and diving package prices, Regular Season 2018 –​March 1 to March 31, 2018 and May 8 to September 1, 2018; High Season 2018 –​April 1 to May 7, 2018, visit DIVE THE WORLD at http://​www.dive-​the-​world.com/​dive-​resorts-​malaysia-​layang-​ layang-​resort.php.

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43

Both Canada and the United States claim the ownership of the famous bird sanctuary [Machias Seal Island]. Canada has run the lighthouse since 1832, and the United States traces its claims back to the time of the American Revolution. The American and Canadian bird-​watching businesses share the trade by landing bird-​watching tourists on the disputed island by turns and paying taxes to their respective governments. This is no settlement of the dispute. If the present generation is not wise enough to settle the territorial disputes as Chinese leader Deng Xiao-​ping wisely noted on the occasion of his visit to Tokyo in October 1978, we in East Asia can learn from the Canadian and American wisdom.13 In April 2014, when meeting with President of the Philippines Benigno Aquino iii in Manila, Barak Obama, the President of the United States, made the following remarks at a joint press conference: And I  think that there are going to be territorial disputes around the world. We have territorial disputes with some of our closest allies. I suspect that there are some islands and rocks in and around Canada and the United States where there are probably still some arguments dating back to the 1800s. But we don’t go around sending ships and threatening folks. What we do is we sit down and we have some people in a room –​ it’s boring, it’s not exciting, but it’s usually a good way to work out these problems and work out these issues.14 Is it a good way for China and the Southeast Asian countries that border the disputed South China Sea to transform this important East Asian semi-​ enclosed sea from a sea of conflict into “a sea of peace, friendship and cooperation” by setting up a marine and cruise tourism cooperation mechanism? Is it useful to the implementation of the 21st Century Maritime Silk Road initiative by promoting open and sustainable tourism in the South China Sea? Is it desirable for the policy decision-​makers of China and the asean countries to have some people in a room to work out the South China Sea problems by looking

13 14

Choon-​Ho Park, Territorial Disputes Over Uninhabited Islands:  The Case of South China Sea, at 8, paper presented at the South China Sea Meeting, Hong Kong, May 25–​30, 1991. Remarks by President Obama and President Benigno Aquino iii of the Philippines in Joint Press Conference, April 28, 2014, The White House, Office of the Press Secretary, available at https://​obamawhitehouse.archives.gov/​the-​press-​office/​2014/​04/​28/​ remarks-​president-​obama-​and-​president-​benigno-​aquino-​iii-​philippines-​joi.

44 Song at shared tourism precedents seen in the United States and Canada in the Gulf of Maine and Malaysia in the disputed Spratly archipelago? We are likely to see tensions grow in the South China Sea if China unilaterally expands its marine and cruise tourism to the seven islands it occupies in the Spratly archipelago, particularly the three largest artificial islands –​Fiery Cross Reef, Subi Reef, and Mischief Reef. They are large enough for commercial aircraft to land on 3,000-​meter-​long runways, and for smaller cruise ships to enter their harbors. However, what political and economic benefits would China obtain if Beijing were to open the Chinese-​occupied islands in the Paracel and Spratly archipelagoes to tourists from not only China, but also the Southeast Asian claimants, and even countries considered “outsiders,” such as the United States, Japan, Australia, France, and the United Kingdom? The purpose of this paper is to explore the possibility of developing marine and cruise tourism in the disputed South China Sea islands to achieve China’s and asean’s goal of transforming the South China Sea from a sea of confrontation into a sea of peace, friendship and cooperation. This paper consists of ten parts. After this introductory part, Part ii describes the increasing tensions in the South China Sea, which has the potential to affect peace and stability in this important East Asian semi-​enclosed sea. Part iii addresses China’s and asean’s member States’ shared commitment to making the South China Sea a “sea of peace, friendship and cooperation.” Part iv discusses tourism development in Asia, the concept of marine and cruise tourism, and the potential of the blue economy in tourism. This is followed by examining the Maritime Silk Road (msr) and its relations with the development of open and sustainable tourism in Part v. The role played by China’s Hainan Province in promoting tourism cooperation is explained in Part vi. Part vii examines the so-​called “patriotic tourism,” developed or to be developed, in the disputed South China Sea islands. Part viii focuses on asean countries’ interest in promoting marine and cruise tourism, and potential for doing so successfully. A number of proposals made by scholars to promote maritime cooperation in the South China Sea are introduced in Part ix. A proposal to establish a joint marine and cruise tourism cooperation mechanism in the South China Sea is offered in the concluding Part x of this article. ii

Tension Growing in the South China Sea

China has undertaken island and reef construction in the Paracel Islands for military purposes since 1974 when it seized the archipelago from Vietnam. Since 2013, mainly in response to increasing U.S.  interference in South China Sea

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45

issues and the filing of the South China Sea arbitration case by the Philippines, China has conducted extensive land reclamation work on some of the islands and reefs it controls in the Spratly Islands. The work includes construction of both civil and military facilities and structures, including administrative buildings, harbors, munitions depots, hangars, runways, helipads, underground tunnels and storage, sensor arrays, radar systems and missile shelters. J-​11B fighter jets and H-​6 bombers have also been sent to Yongxing Dao (Woody Island), the largest in the Paracel island group with a 3,000-​meter long airstrip.15 Before the Chinese land reclamation work, Taiping Island (Itu Aba), controlled by Taiwan, was the largest in the Spratly archipelago with an area of 0.49 km2 (square kilometers), but now it falls far behind the Chinese reclaimed Fiery Cross Reef (2.8 km2), Subi Reef (4.3 km2), and Mischief Reef (5.6 km2), which are described by the United States as “man-​made islands.” China’s continuing island construction and military building on strategic islands and reefs in the Paracel and Spratly archipelagoes is considered one of the major sources of tension in the South China Sea. Former U.S. Secretary of State Tillerson warned in December 2017 that the United States cannot accept these islands being continuously developed, and “certainly not for military purposes.”16 On December 17, 2017, President Donald J. Trump announced the “National Security Strategy of the United States of America,” according to which Washington considers Chinese dual-​use construction activities on the occupied islands in the South China Sea to be “endanger[ing] the free flow of trade, threaten[ing] the sovereignty of other nations, and undermin[ing] regional stability.”17 This was followed by the accusation made in the 2018 U.S. National Defense Strategy, stating that “China is a strategic competitor using predatory economics to intimidate its neighbors while militarizing features in the South China Sea.”18 In February 2018, U.S. Defense Secretary Mattis said

15

A Constructive Year for Chinese Base Building, amti, Center for the Strategic and International Studies, Washington, D.C., December 14, 2017, https://​amti.csis.org/​ constructive-​year-​chinese-​building/​. 16 On Meeting the Foreign Policy Challenges of 2017 and Beyond, Remarks by Rex W. Tillerson Secretary of State, The 2017 Atlantic Council-​Korea Foundation Forum, Washington, DC., December 12, 2017, https://​www.state.gov/​secretary/​remarks/​2017/​12/​276570.htm. 17 National Security Strategy of the United States of America, the White House, December 18, 2017, https://​www.whitehouse.gov/​wp-​content/​uploads/​2017/​12/​NSS-​Final-​12-​18-​ 2017-​0905.pdf (accessed 2017/​`2/​25), at 46. 18 Summary of the 2018 National Defense Strategy of the United States of America: Sharpening the American Military’s Competitive Edge, Department of Defense, January 19, 2018, https://​www.defense.gov/​Portals/​1/​Documents/​pubs/​2018-​National-​ Defense-​Strategy-​Summary.pdf, at 1.

46 Song that “what made the [US-​China] competition explicit was the turning of atolls and features in the South China Sea into military outposts.”19 On April 18, 2018, President Trump and Japanese Prime Minister Abe expressed concern over China’s militarization activities in the South China Sea during a news conference at Trump’s private Mar-​a-​Lago club, stressing the need to demilitarize the disputed features and maintain peace and openness in the South China Sea.20 Defense Secretary Mattis made similar remarks when attending the Shangari-​ La Security Dialogue in June 2018 in Singapore.21 Assertive actions by China in the South China Sea in the first half of 2018 include: conducting the largest military drill with 48 warships; 76 aircraft and more than 10,000 sailors and soldiers; installing new electronic jamming radars on Fiery Cross Reef and Mischief Reef; landing military transport aircraft on Mischief Reef; jamming a U.S. Navy jet’s equipment while patrolling in the South China Sea; erecting a monument on Fiery Cross Reef; “challenging” two Australian frigates and an oil replenishment ship as the Australian vessels were sailing to Vietnam; and installing anti-​ship cruise missiles and surface-​to-​air missile systems on Fiery Cross Reef, Subi Reef and Mischief Reef. In response to the Chinese military buildup in the disputed Spratly Islands, the U.S. government warned that “there will be near-​term and long-​term consequences.”22 During the entire eight-​years of the Obama Administration, there were six instances of the US Navy performing a Freedom of Navigation Operation (fonop). In comparison, within one year since May 2017, seven fonop s were conducted under the Trump administration. More importantly, President Trump removed the White House and the National Security Council (and a broader interagency process) from decision-​making on fonop s. Now, the U.S. Defense Department decides the schedule of regular fonop s in the South 19

20 21

22

Press Gaggle by Secretary Mattis en Route to Washington, D.C., News Transcript, U.S. Depart of Defense, February 17, 2018, available at https://​www.defense.gov/​News/​ Transcripts/​Transcript-​View/​Article/​1444921/​press-​gaggle-​by-​secretary-​mattis-​en-​ route-​to-​washington-​dc/​. Patricia Lourdes Viray, Japan, US call for demilitarization of South China Sea, The Philippine Star, April 20, 2018, available at https://​www.philstar.com/​headlines/​ 2018/​04/​20/​1807778/​japan-​us-​call-​demilitarization-​south-​china-​sea. See Remarks by Secretary Mattis at Plenary Session of the 2018 Shangri-​La Dialogue, Secretary of Defense James N.  Mattis; John Chipman, Director-​General and Chief Executive, iiss June 2, 2018 https://​translations.state.gov/​2018/​06/​02/​remarks-​by-​ secretary-​mattis-​at-​plenary-​session-​of-​the-​2018-​shangri-​la-​dialogue/​. Agence France-​Presse, White House warns China of ‘consequences’ for military buildup in South China Sea, The Philippine Star, May 4, 2018, available at https://​www.philstar.com/​headlines/​2018/​05/​04/​1812109/​white-​house-​​ warns-​china-​consequences-​military-​buildup-​south-​china-​sea.

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47

China Sea under the authority of U.S. Pacific Command. In May 2018, China was disinvited from participating in the biennial Rim of the Pacific (rimpac) 2018 exercises. If the United States responds to China’s moves by conducting more and stronger actions, particularly by asking China to stop the dual-​use construction work in the South China Sea, it is likely to see tensions grow in this important strategic water. Something needs to be done before serious armed conflict erupts in this important East Asian semi-​enclosed sea, through which $3.4 trillion worth of shipping trade transited in 2016,23 and where it is believed there are about 11 billion barrels of untapped oil and 190 trillion cubic feet of natural gas reserves.24 The adoption of a regional code of conduct in the South China Sea between China and the asean countries, having legally binding force, could be one means of working out problems in the South China Sea. The development of a joint marine and cruise tourism cooperation mechanism in the South China Sea could also help promote peace, stability and prosperity in this contested sea. iii

China’s and asean Countries’ Shared Commitment to Making the South China Sea “A Sea of Peace, Friendship and Cooperation”

Since the early 1990s, China has proposed putting aside the territorial disputes and jointly developing resources, both living and non-​living, in the South China Sea, but no progress has been made. In 2002, China and the asean countries signed the Declaration on the Conduct of Parties in the South China Sea (doc) in which they agreed, inter alia, that pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities, in areas related to marine environmental protection, marine scientific research, safety of navigation and communication at sea, search and rescue operations, and combating transnational crime including, but not limited to, trafficking in illicit drugs, piracy and armed robbery at

23 24

How much trade transits the South China Sea? China Power, csis, August 2, 2017, Updated October 27, 2017, https://​chinapower.csis.org/​much-​trade-​transits-​south-​china-​sea/​ (accessed 2017/​12/​26). Contested areas of South China Sea likely have few conventional oil and gas resources, Today in Energy, U.S. Energy Information Administration, April 3, 2013, https://​www.eia.gov/​ todayinenergy/​detail.php?id=10651.

48 Song sea, and illegal arms trafficking.25 Although marine and cruise tourism is not listed, it is not excluded and could be promoted in accordance with the spirit and principle of the Declaration. The asean countries and China also reaffirmed that the adoption of a code of conduct (coc) in the South China Sea would further promote peace and stability in the region. They agreed to work, on the basis of consensus, towards the eventual attainment of this objective.26 Three years after the signing of the doc, the national oil companies of China, the Philippines and Vietnam signed the Tripartite Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea (jmsu), in which the three countries announced their commitment to transforming the South China Sea as a sea of conflict into “an area of peace, stability, cooperation, and development.” At the same time, they stressed that the signing of the Agreement should not undermine the basic position held by the Government of each Party on the South China Sea issues.27 In 2007, China and Indonesia signed the Memorandum of Understanding on Marine Cooperation; in 2009, China and Malaysia signed the Agreement on Marine Science and Technology Cooperation; in 2011, China’s State Oceanic Administration and Thailand’s Ministry of Natural Resources and Environment signed a Memorandum of Understanding on Marine Cooperation; and, in 2013, China and Brunei signed an agreement on joint venture in oil field services and other bilateral cooperation areas in the South China Sea. In addition to these bilateral agreements, a three billion yuan (usd $473 million) China-​a sean Maritime Cooperation Fund was established in 2011, aiming to enhance port and maritime transport cooperation. Maritime connectivity has become a priority field and key direction in the development of the cooperation relationship.28

25 Declaration on the Conduct of Parties in the South China Sea, November 4, 2002, para. 6.  The document is available at http://​asean.org/​?static_​post=​ declaration-​on-​the-​conduct-​of-​parties-​in-​the-​south-​china-​sea-​2. 26 Ibid., para. 10. 27 Oil Companies of China, the Philippines and Vietnam signed Agreement on South China Sea Cooperation, Embassy of the People’s Republic of China in the Republic of the Philippines, at http://​ph.china-​embassy.org/​eng/​zt/​nhwt/​t187333.htm. The text of the agreement is available at http://​pcij.org/​blog/​wp-​docs/​RP_​China_​Vietnam_​Tripartite_​ Agreement_​on_​Joint_​Marine_​Seismic_​Undertaking.pdf. 28 See Cai Penghong, China-​ a sean Maritime Cooperation:  Process, Motivation, and Prospects, China Institute of International Studies, September 25, 2015, available at http://​www.ciis.org.cn/​english/​2015-​09/​25/​content_​8265850.htm.

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In 2012, China’s State Oceanic Administration issued the Framework Plan for International Cooperation for the South China Sea and Its Adjacent Oceans (2011–​2015) and proposed establishing a China-​a sean maritime partnership. The Framework Plan focused on promoting maritime cooperation between and among the countries bordering the South China Sea.29 In November 2012, the 15th asean-​China Summit was held in Phnom Penh on the 10th Anniversary of the doc, where the two sides issued a joint statement agreeing “to continue [to] uphold the spirit and principles of the doc to contribute to the promotion of peace, friendship, mutual trust, confidence and cooperation between and among asean Member States and China” in the South China Sea. Tourism was listed as one of the 11 priority areas of asean-​China strategic partnership and cooperation.30 In November 2014, at the 17th asean-​China leaders’ meeting in Nay Pyi, Myanmar, Premier Li Keqiang stated:  “China is willing to work with asean countries to turn the South China Sea into a ‘sea of peace, friendship and cooperation’ for the benefit of people of all countries in the region.”31 This policy position was reiterated by President Xi Jinping at the Conference on Interaction and Confidence Building Measures in Asia that was held in Beijing in April 2016. In September and November 2017, during their visits to Brunei, Cambodia, Laos, and Vietnam, President Xi and Premier Li reiterated that the Chinese government held the same position on the situation in the South China Sea. In November 2017, at the 12th East Asia Summit, Premier Li stated that “regional countries have the confidence, wisdom and ability to properly address the South China Sea issue and make the South China Sea a sea of peace, friendship and cooperation.”32 In February 2018, at the asean Foreign Ministers’ Retreat in Singapore, the participating ministers recognized the benefits of establishing the South China 29

State Oceanic Administration, Fruitful results of cooperation between China and ASEAN in the low sensitivity marine areas, China News, April 27, 2016, available at http://​ www.chinanews.com/​gn/​2016/​04-​27/​7850162.shtml (in Chinese). 30 Chairman’s Statement of the 15th asean-​ China Summit Phnom Penh, Cambodia, November 19, 2012, para. 4.  The document is available at http://​ myasean.kln.gov.my/​myaseanv2/​index.php/​outcome-​of-​major-​meetings-​mainmenu-​68/​ 74-​chairman-​s-​statement-​of-​the-​15th-​asean-​china-​summit-​phnom-​penh-​cambodia-​19-​ november-​2012. 31 Remarks by H.E. Li Keqiang Premier of the State Council of the People’s Republic of China at the 17th asean-​China Summit, November 14, 2014, available at http://​ www.fmprc.gov.cn/​mfa_​eng/​wjdt_​665385/​zyjh_​665391/​t1212266.shtml. 32 Speech by Li Keqiang at the 12th East Asia Summit, November 14, 2017, available at http://​ english.forestry.gov.cn/​index.php?option=com_​content&view=article&id=1680:speech-​ by-​li-​keqiang-​at-​the-​12th-​east-​asia-​summit&catid=21&Itemid=105.

50 Song Sea as “a sea of peace, stability and prosperity.”33 This policy goal is shared by China and the asean. In early March, at a press conference held by the First Session of the 13th National People’s Congress in Beijing, Chinese Foreign Minister Wang Yi stated that: In the year ahead, China will work with asean countries to seize the opportunity, broaden cooperation, prevent interference and overcome challenges. Cherishing what we have worked so hard to achieve, China and asean countries will speed up the coc consultation, actively explore a mechanism of cooperation among the coastal states, and promote peace and cooperation in the South China Sea.34 On April 10, 2018, when meeting with the Philippine President Rodrigo Duterte at the Boao Forum for Asia annual conference, President Xi stated:  “We should continue to properly handle [the] South China Sea issue, and discuss joint exploration, development and cooperation at an appropriate time, thus making the waters a sea of cooperation and friendship.”35 On April 28, 2018, the Heads of State/​Government of asean Member States met in Singapore for the 32nd asean Summit, where, again, they “recognized the benefits of having the South China Sea as a sea of peace, stability and prosperity” and welcomed, among other things, practical measures that could reduce tensions in the area.36 More recently, in early August 2018, China and asean members agreed on a draft code of conduct (coc) that will be used for further intensive negotiations by the two sides to adopt the final version of the code in the South China Sea.37 To date, however, it is difficult to imagine the realization of the shared policy goal between China and the asean countries to make the South China Sea “a 33 34 35 36 37

Press Statement by the Chairman of the asean Foreign Ministers’ Retreat Singapore, 6 February 2018, para. 11, available at http://​asean.org/​storage/​2018/​02/​Press-​Statement-​ by-​the-​Chairman-​of-​the-​ASEAN-​Foreign-​Ministers-​Retreat-​clean.pdf. Foreign Minister Wang Yi Meets the Press, Ministry of Foreign Affairs of the People’s Republic of China, March 9, 2018, at http://​www.fmprc.gov.cn/​mfa_​eng/​zxxx_​662805/​ t1540928.shtml. Xi calls for elevating Sino-​Philippine ties, China Daily, April 10, 2018, at http://​ www.chinadaily.com.cn/​a/​201804/​10/​WS5accde60a3105cdcf651760a_​2.html. Chairman’s Statement of the 32nd asean Summit, Singapore, April 28, 2018, para. 23, available at http://​asean.org/​storage/​2018/​04/​Chairmans-​Statement-​of-​the-​32nd-​ ASEAN-​Summit.pdf. John Geddie and Christian Shepherd, Southeast Asia, Beijing hail milestone in South China Sea talks, Reuters, August 2, 2018, https://​www.reuters.com/​article/​us-​asean-​singapore/​ southeast-​asia-​beijing-​hail-​milestone-​in-​south-​china-​sea-​talks-​idUSKBN1KN0SB.

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51

sea of peace, friendship and cooperation.” Accordingly, it is suggested that the establishment of a South China Sea marine and cruise tourism cooperation mechanism by China and the Southeast Asian claimants, or by China and the asean as a group, could help achieve the stated goal of transforming the South China Sea into a region of peace, stability, friendship, cooperation and joint development. iv

Tourism Development in Asia, the Concepts of Marine/​Cruise Tourism and Potential of the Blue Economy in Tourism

Tourism is one of the world’s largest industries, generating 10% of world gdp, one in every ten jobs and 30% of world trade in services.38 Tourism can boast of virtually uninterrupted growth over time, despite occasional shocks. International tourist arrivals have increased from 25 million globally in 1950 to 278 million in 1980, 674 million in 2000, and 1,235 million in 2016. International tourism receipts earned by destinations worldwide have surged from US $2 billion in 1950 to US $104 billion in 1980, US $495 billion in 2000, and US $1,220 billion in 2016.39 Asia and the Pacific recorded 308 million international tourist arrivals in 2016, an increase of 9%, or 24 million over 2015, the highest increase in both relative and absolute terms across the five unwto regions.40 International tourism receipts increased 5% in real terms to US $367 billion, US $17 billion more than in 2015. Asia and the Pacific accounted for 25% of the world’s arrivals and 30% of the world’s receipts.41 It is forecast that tourism will grow at 4% per year over the next ten years, and there will be an estimated 1.8 billion international arrivals in 2030.42 In 2016, China (4th) and Thailand (9th) were among the world’s Top 10 in terms of international tourist arrivals. Thailand ranked third, China fourth, and Hong Kong (China) ninth in terms of international tourism receipts.43 China 38

39 40 41 42 43

Taleb Rifai, Secretary General, World Tourism Organization (unwto), Tourism: growth is not the enemy; it’s how we manage it that counts, unwto, Press Release, PR No. 1, Opinion article 1, August 15, 2017, available at http://​media.unwto.org/​press-​release/​ 2017-​08-​15/​tourism-​growth-​not-​enemy-​it-​s-​how-​we-​manage-​it-​counts. unwto Tourism Highlights, 2017 Edition, p. 2, available in the website of the unwto at https://​www.e-​unwto.org/​doi/​book/​10.18111/​9789284419029. The five regions are: Africa, Americas, Asia-​Pacific, Europe, and Middle East. Supra note 36, at 7. David Scowsill, President & ceo, World Travel & Tourism Council, Declaration for the International Year of Sustainable Tourism for Development 2017, Foreword, at https://​ www.wttc.org/​-​/​media/​files/​reports/​declaration-​iystfd.pdf. Supra note 20, at 6.

52 Song continues to lead global outbound travel, following ten years of double-​digit growth in spending, and after rising to the top of the ranking in 2012. Expenditures by Chinese tourists grew by 12% in 2016 to reach US $261 billion. China’s outbound tourists rose by 6% to reach 135 million in 2016.44 According to the World Economic Forum’s Travel and Tourism Competitiveness Report, the majority of the countries and economies that are bordering the South China Sea moved up the rankings in 2017, and Vietnam is one of the countries with the greatest increase (see Table 2.1).45 Marine and cruise tourism represent a significant share of the tourism industry and is an important component of the growing, sustainable Blue Economy, which is understood as “sustainable use of ocean resources for economic growth, improved livelihoods and jobs, and ocean ecosystem health.”46 It can help promote conservation and sustainable use of marine environments and species, generate income for local communities (thus alleviating poverty), and maintain and respect local cultures, traditions, and heritage. More importantly, sustainable use of marine resources for tourism development will contribute to achieve the Sustainable Development Goals (sdg s) within 2030,47 particularly Goals No. 8,48 No. 12,49 and No. 14.50 Marine tourism is defined as “recreational activities that involve travel away from one’s place of residence and which have as their host or focus the marine environment.”51 China National Tourism Administration defines marine tourism as “the aggregate of phenomena and relationships generated from marine 44 45

46 47

48 49 50 51

Supra note 20, at 13. The Travel & Tourism Competitiveness Report 2017, World Economic Forum, Insight Report, 2017, available at https://​www.weforum.org/​reports/​the-​travel-​tourism-​ competitiveness-​report-​2017. See also Asia Tourism –​healthy growth, with few exceptions, Business-​ in-​ Asia.com, available at http://​www.business-​in-​asia.com/​industries/​ tourism_​first_​qtr09.html. The World Bank, What is the Blue Economy? June 6, 2017, at http://​www.worldbank.org/​ en/​news/​infographic/​2017/​06/​06/​blue-​economy. On September 25, 2015, the 193 states of the United Nations adopted Agenda 2030 and a set of goals to end poverty, protect the planet and ensure prosperity for all as part of a new sustainable development agenda. Each of these 17 goals has specific targets to be achieved over the next 15 years. For the sdg s, visit the website of the United Nations at https://​www.un.org/​sustainabledevelopment/​sustainable-​development-​goals/​. Goal 8:  Promote inclusive and sustainable economic growth, employment and decent work for all. Id. Goal 12: Ensure sustainable consumption and production patterns. Id. Goal 14: Conserve and sustainably use the oceans, seas and marine resources. Id. The marine environment is defined as “those waters which are saline and tide-​affected” See Mark Orams, Marine Tourism:  Development, Impacts and Management (Taylor and Francis, 1998), at 9.

53

Peace through Joint Marine and Cruise Tourism table 2.1 The World Economic Forum’s Travel & Tourism Competitiveness Index 2009, 2015, 2017 Rankings

Country/​ Economy

2009 Rank (133 countries)

2015 Rank (141 countries)

2017 Rank (136 countries)

Cambodia China Hong Kong Indonesia Laos Malaysia Myanmar Philippines Singapore Taiwan Thailand Vietnam

108 47 12 81 n/​a 32 n/​a 86 10 n/​a 39 89

105 17 13 50 96 25 134 74 11 32 35 75

101 15 11 42 94 26 n/​a 79 13 30 34 67

Sources:  The Travel & Tourism Competitiveness Report 2017, World Economic Forum, Insight Report, 2017, available at https://​w ww.weforum.org/​r eports/​ the-​t ravel-​t ourism-​c ompetitiveness-​r eport-​2 017 and Asia Tourism  –​ healthy growth, with few exceptions, Business-​ i n-​ A sia.com, available at http://​ www.business-​i n-​a sia.com/​i ndustries/​t ourism_​f irst_​q tr09.html

tours, entertainment and vacationing conducted under certain social and economic conditions to meet people’s spiritual and material needs.”52 Marine tourism, “a collective term for all sorts of tourism activities including sightseeing, vacationing and special tours based on marine resources,”53 can be further classified as coastal tourism, offshore tourism and ocean-​going tourism, according to the distance from the land.54 In addition to cruising and sailing, marine tourism covers a wide range of activities taking place in coastal waters, the seas and oceans such as scuba diving, snorkeling, underwater fishing, water skiing, windsurfing, tours to marine parks, wildlife mammal watching, 52 53 54

Marine Tourism, China National Tourism Administration, at http://​www.cnta.com/​ English_​Column/​201603/​t20160329_​765129.shtml. Ibid. Ibid.

54 Song etc. There are about six million active scuba divers and 20 million snorkelers worldwide.55 Cruise tourism is defined as “a luxurious form of travelling, involving on all-​ inclusive holiday on a cruise ship [for] at least 48 hours, according to [a]‌specific itinerary, in which the cruise ship calls at several ports or cities.”56 Based on location, duration, main function, and destination, eight types of cruises can be identified: (1) expedition cruises; (2) river cruises; (3) sea cruises; (4) theme cruises; (5)  mini cruises; (6)  world cruises; (7)  transit cruises; and (8)  turnaround cruises.57 Worldwide, the cruise industry has shown an annual passenger compound annual growth rate of 6.55% from 1990–​2019.58 In 2018, ten large new cruise ships are scheduled for delivery, including the world’s largest cruise ship, Symphony of the Seas (Royal Caribbean, 228,081 gross tons, with accommodations for up to 6,680 passengers), Carnival Horizon (Carnival Cruise Line, 133,500 gross tons, 3,960 passengers), Norwegian Bliss (Norwegian Cruise Line, 168,028 gross tons, 4,004 passengers), msc Seaview (msc Cruises, 153,516 gross tons, 6,592 passengers), and Mein Schiff 1 (tui Cruises, 111,500 gross tons, 2,894 passengers), which represents a milestone year for the world’s cruise ship business.59 In March 2018, Xiamen Port Holding Group, China International Travel Service and Costa Cruises announced a cruise route visiting Brunei, Cambodia, Malaysia, Philippines, Singapore, and Vietnam  –​the six countries along the Maritime Silk Road. The 15-​day tour departed from Xiamen, east China’s Fujian Province with 1,800 passengers on board.60 According to China Communication and Transportation Association (ccta), China’s 15 cruise ports received 5,807 cruise ships with 18.1 million outbound and inbound tourists in 2017.61 55

Fast Facts:  Recreational Scuba Diving and Snorkeling, The Diving Equipment and Marketing Association (dema), https://​c.ymcdn.com/​sites/​www.dema.org/​resource/​ resmgr/​imported/​Diving%20Fast%20Facts-​2013.pdf. 56 Cruise Tourism: From a broad perspective to a focus on Zeeland, Research Centre for Coastal Tourism, 2012, available at http://​www.kenniscentrumtoerisme.nl/​l/​library/​download/​ 13920 (accessed 2018/​411), at 3. 57 Ibid, at 3–​4. 58 Cruise Market Watch, Growth of the Ocean Cruise Line Industry, available at https://​ www.cruisemarketwatch.com/​growth/​ (accessed 2018/​4/​12). 59 Allan E.  Jordan, Record Year for Cruise Ship Introduction Begins, The Maritime Executive, April 5, 2018, https://​www.maritime-​executive.com/​article/​record-​year-​for-​ cruise-​ship-​introductions-​begins#gs.IgU6xn0. 60 New cruise route to six Southeast Asian countries launched in Xiamen, China Daily, March 9, 2018, available at http://​www.chinadaily.com.cn/​a/​201803/​09/​ WS5aa1fc85a3106e7dcc140a32.html. 61 Chinese cruise ports receive over 18 million tourists, China Daily, February 19, 2018, available at http://​usa.chinadaily.com.cn/​a/​201802/​19/​WS5a8a6673a3106e7dcc13d07a.html.

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Marine and cruise tourism is a multifaceted domain: it is a flow of people, money, ideas, and experiences. It contributes to the preservation of culture and fosters jobs creation and the development of infrastructure. A diverse range of businesses contributes to the marine tourism industry, including charter fishing boat operators, sea kayak tour guides, scuba-​diving instructors, whale watch cruise operators, charter yacht companies, cruise ship companies, boat maintenance shops, coastal resorts, scuba tank-​fill shops, windsurfer rental agencies, fishing equipment suppliers, island ferry services, souvenir collectors, photographers, rubbish collectors, airlines, travel agencies, food suppliers, etc. Tourism has the ability to drive peace, security and understanding. It can help support peace by putting pressure on governments to cease hostilities and establish more harmonious relationships in order to attract more tourists. As people become more exposed to other cultures and people through marine and cruise tourism, their degree of tolerance and acknowledgement of the rights of others should increase. The rapidly growing number of tourists, however, has the potential to severely impact the marine environment, either directly or indirectly. In December 2015, the United Nations General Assembly, in recognition of “the importance of international tourism, and particularly of the designation of an international year of sustainable tourism for development, in fostering better understanding among peoples everywhere, leading to a greater awareness of the rich heritage of various civilizations and bringing about a better appreciation of the inherent values of different cultures, thereby contributing to the strengthening of peace in the world,”62 decided to proclaim 2017 the International Year of Sustainable Tourism for Development. In addition, it encouraged “all States, the United Nations system and all other actors to take advantage of the International Year to promote actions at all levels, including through international cooperation, and to support sustainable tourism as a means of promoting and accelerating sustainable development, especially poverty eradication.”63 Under this resolution, the unwto was invited to facilitate the organization and implementation of the International Year of Sustainable Tourism for Development, in collaboration with governments, relevant organizations of the UN system, international and regional organizations and other relevant stakeholders in the following five key areas: (1) inclusive and sustainable economic growth; (2)  social inclusiveness, employment and poverty reduction; 62 63

Resolution adopted by the General Assembly on 22 December 2015, 70/​193. International Year of Sustainable Tourism for Development, 2017, A/​RES/​70/​193. Ibid., para. 4.

56 Song (3) resource efficiency, environmental protection and climate change; (4) cultural values, diversity and heritage; and (5) mutual understanding, peace and security.64 The last key area is relevant to the idea of promoting peace in the South China Sea through joint marine and cruise tourism as the unwto encourages all States, organizations, and relevant stakeholders: (1) to break down barriers and build bridges between visitors and hosts; (2) to provide opportunities for cross-​cultural encounters that can build peace; (3) to establish a resilient sector that recovers quickly from security threats; and (4) to use tourism as a tool for soft diplomacy.65 With the exception of Taiwan, all of the countries bordering the South China Sea are members of the United Nations. All are also members of the unwto, with the exceptions of Singapore and Taiwan. In addition to the UN and the unwto, other international government organizations have also taken actions to implement the concept of sustainable tourism for development, such as the Economic and Social Commission for Asia and the Pacific (escap) and Asia-​Pacific Economic Cooperation (apec). In May 2016, escap, the regional development arm of the United Nations for the Asia-​Pacific region, adopted a resolution calling for regional cooperation to promote the conservation and sustainable use of the oceans, seas and marine resources for sustainable development in Asia and the Pacific. China and the ten asean countries are members of this Commission and are encouraged to promote collaboration and cooperation in the implementation of Sustainable Development Goal No. 14, including, inter alia, by “strengthening regional cooperation for the conservation and sustainable use of the oceans, seas and marine resources within the legal framework of the United Nations Convention on the Law of the Sea and, for parties to it, the Convention on Biological Diversity, for the conservation and the sustainable use of oceans and their resources.”66 In May 2016, tourism ministers from the apec member economies adopted the Lima Declaration, in which they highlighted the four apec priorities for fostering a competitive and sustainable environment for a connected and robust tourism sector:  (1) promote better understanding and recognition of 64 65 66

See International Year of Sustainable Tourism for Development 2017, unwto, at http://​ www2.unwto.org/​content/​international-​year-​sustainable-​tourism-​development-​2017. See Why Tourism? The “Travel. Enjoy. Respect campaign” launched by unwto in August 2017, available at http://​www.tourism4development2017.org/​why-​tourism/​. Resolution adopted by the Economic and Social Commission for Asia and the Pacific, 72/​ 9. Regional cooperation to promote the conservation and sustainable use of the oceans, seas and marine resources for sustainable development in Asia and the Pacific, Economic and Social Commission for Asia and the Pacific, Seventy-​second session, Agenda item 3 (d), May 24, 2016, para. 1 and 3(a).

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tourism as an engine for economic growth and prosperity in the apec region;(2) ensure sustainable and inclusive growth in the travel and tourism sector by encouraging socially and culturally responsible tourism; (3) promote labor, skills development and certification through increased cooperation in order to develop the tourism workforce in the region; and (4) promote competitiveness and regional economic integration through policy alignment and structural reform.67 In June 2017, apec tourism ministers issued a high level statement, aiming to promote sustainable tourism for an inclusive and interconnected Asia-​Pacific.68 The ministers reiterated the significant role of tourism in stimulating economic growth and fostering connectivity. They also agreed to foster regional and domestic tourism policies that support sdgs, particularly Goals No. 8, 12 and 14. Brunei, China, Indonesia, Malaysia, the Philippines, Singapore, Chinese Taipei (Taiwan), Thailand, and Viet Nam are apec member economies. v

The MSR Initiative and Its Relations with the Development of Open and Sustainable Tourism

The Chinese proposed One Belt One Road initiative (“bri”) consists of two components:  the land-​based Silk Road Economic Belt, and the 21st Century Maritime Silk Road (“msr”). The Silk Road Economic Belt concept was introduced by President Xi Jinping during his visit to Kazakhstan in September 2013. The guidance on constructing a 21st Century Maritime Silk Road to promote maritime cooperation was proposed by President Xi during his visit to Indonesia in October 2013.69 There are two directions of the msr –​one from China’s southeastern coast, beginning in Fujian province, and running through the South China Sea to the Indian Ocean coastal ports and extending to Europe. The second is through the South China Sea from the Chinese coastal ports and extends eastward to the South Pacific. The bri was proposed to find a mutually beneficial mode of

67

The Lima Declaration, para. 7. For the text of the declaration, visit the official website of apec at https://​www.apec.org/​Meeting-​Papers/​Sectoral-​Ministerial-​Meetings/​Tourism/​ 2016_​tourism.aspx. 68 2017 apec High Level Statement Promoting Sustainable Tourism for an Inclusive and Interconnected Asia-​Pacific, Ha Long, Viet Nam, June 19, 2017, available at https://​ www.apec.org/​Meeting-​Papers/​Sectoral-​Ministerial-​Meetings/​Tourism/​2017_​tourism. 69 Zhang Lulu, Chronology of China’s Belt and Road Initiative, CHINA.ORG.CN, January 5, 2017, available at http://​www.china.org.cn/​china/​2017-​01/​05/​content_​40044651.htm.

58 Song cooperation so that common development and prosperity, and a road towards peace and friendship, could be promoted by enhancing mutual understanding and trust, and strengthening all-​round exchanges between and among the countries along the Belt and the Road.70 According to a study conducted by the asean Secretariat in 2001, a cruise network expansion over the asean region was proposed by the asean member states to help attract more cruise passengers and further create a tourism product, to include two cruise corridors passing through the South China Sea: (1) Western Side of the South China Sea and the Malacca Strait and (2) Eastern Side of the South China Sea, Java Sea and the Andaman Sea.71 This development plan of asean is related to the Chinese msr initiative and the idea of proposing a joint marine and cruise tourism cooperation mechanism in the South China Sea to be discussed in this paper. In 2014, China set up a US $40 billion Silk Road Fund. In addition, the Asian Infrastructure Investment Bank (“aiib”) was created with equity of US $100 billion to finance the creation of the new trade routes. In November 2014, at the 17th asean-​China Summit, asean countries agreed to work together towards building the China-​a sean community of shared destiny and the Maritime Silk Road of the 21st Century. In addition, the two sides agreed to designate the Year of 2015 as the “asean-​China Year of Maritime Cooperation.”72 The msr initiative is regarded as a new driving force for asean-​China maritime cooperation. However, a number of factors pose a threat to the implementation of the initiative, including wars, territorial disputes, and concerns over China’s growing geopolitical power.73 Although strengthening of the economic relationship with asean countries is considered an important base for the mrs initiative, territorial sovereignty and maritime disputes over the islands and waters in the South China Sea have influenced the attitudes of Vietnam and the Philippines toward the initiative. These two claimants have taken 70

Vision and Actions on Jointly Building Silk Road Economic Belt and 21st Century Maritime Silk Road, issued by the National Development and Reform Commission, Ministry of Foreign Affairs, and Ministry of Commerce of the People’s Republic of China, with State Council authorization, March 2015, iii, Framework, available at http://​en.ndrc.gov.cn/​ newsrelease/​201503/​t20150330_​669367.html. 71 See asean Cruise Network Expansion Plan, in asean Cruise Development Framework, the asean Secretariat, 2002, at 12. 72 Chairman’s Statement of the 17th asean-​China Summit, November 13, 20 14, Nay Pyi Taw, Myanmar, para. 4 and para. 8. The statement is available at http://​www.asean.org/​ storage/​images/​Chairmans_​statement_​of_​17th_​ASEAN-​China_​Summit.pdf. 73 Dan Blystone, China and the Maritime Silk Road, INVESTOPEDIA, available at https://​ www.investopedia.com/​articles/​investing/​042015/​china-​and-​maritime-​silk-​road.asp.

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a more confrontational approach towards pressing their territorial claims in the disputed South China Sea and are reluctant to join the msr initiative. Although China intends to implement the initiative based on the Silk Road spirit of peace, cooperation, and mutual benefits, the South China Sea issue has the potential to affect the overall friendly cooperation between China and asean countries and the future development of the initiative. In 2015, China released a document titled “Vision and Actions on Jointly Building Silk Road Economic Belt and 21st Century Maritime Silk Road” (Vision and Actions), which expressed China’s comprehensive policies on diplomatic strategy, external economic and trade policy and domestic and international infrastructure construction relation to the bri.74 The Vision and Actions emphasized “the Silk Road Spirit” –​peace and cooperation, openness and inclusiveness, mutual learning and mutual benefits –​that for thousands of years has been passed from generation to generation, promoted the progress of human civilization, and contributed greatly to the prosperity and development of the countries along the Silk Road.75 Tourism is listed as one of the cooperation priorities in the Vision and Actions, as follows: We should expand mutual investment areas, deepen cooperation in agriculture, forestry, animal husbandry and fisheries, agricultural machinery manufacturing and farm produce processing, and promote cooperation in marine-​product farming, deep-​sea fishing, aquatic product processing, seawater desalination, marine biopharmacy, ocean engineering technology, environmental protection industries, marine tourism and other fields.76 [emphasis added] We should enhance cooperation in and expand the scale of tourism; hold tourism promotion weeks and publicity months in each other’s countries; jointly create competitive international tourist routes and products with Silk Road features; and make it more convenient to apply for tourist visa in countries along the Belt and Road. We should push forward cooperation on the 21st-​Century Maritime Silk Road cruise tourism program.77 [emphasis added]

74 75 76 77

Supra note 22. Supra note 22, Preface. Supra note 22, vi. Cooperation Priorities. Supra note 22, vi. Cooperation Priorities.

60 Song China National Tourism Administration declared 2015 the Year of Silk Road Tourism and listed Asian locations as the principal destinations for outbound Chinese tourists. In November 2016, China’s State Oceanic Administration issued the Framework Plan for International Cooperation for the South China Sea and Its Adjacent Oceans (2016–​2020), which aims to establish marine cooperation partnerships between the countries bordering the sea and oceans and help implement the msr initiative. In March 2017, the World Tourism Cities Federation Asia Pacific Tourism Conference was held in Penang, Malaysia, where the participants discussed the proposal to establish the Belt and Road Tourism Corridor as “an international tourism channel composed of tourism node cities, supported by tourism infrastructures, connected by tourism and cultural resources and guaranteed by sound tourism services.” In June 2017, China released a document titled “Vision for Maritime Cooperation under the Belt and Road Initiative,”78 aiming to synchronize development plans and promote joint actions among countries along the msr. In the Vision, China reiterates its policy to work with countries along the Road in developing tourism routes and high-​quality tourism products, and in setting up mechanisms for tourism information sharing. China’s State Oceanic Administration and its counterpart government agencies of the asean countries, with the involvement of their marine scientific and technological research institutions, have adopted measures to develop a wider marine cooperation partnership. It is believed that the development of maritime cooperation is useful to make the South China Sea “a sea of peace, friendship and cooperation.” The Belt and the Road connect the major tourism destinations and tourist sources in Europe and Asia and covers 70% of global tourism. According to China’s National Tourism Administration, it is expected that during the “13th Five-​Year Plan” (2016–​2020), 150  million Chinese tourists will visit countries along the Belt and Road and spend US $200 billion, and 85  million tourists from the Belt and Road countries will travel to China, bringing in about US $110 billion in tourism revenue.79 The number of Chinese tourists departing from domestic ports jumped from fewer than 20,000 in 2006 to 2.14 million in 2016, making up more than 40% of the Asian cruise market. Eight international cruise liner ports have been built in China’s coastal cities, including 78 79

For the document, visit XINHUA NET at http://​www.xinhuanet.com/​english/​2017-​06/​ 20/​c_​136380414.htm. Ma Zhiping, Belt and Road Initiative drives cruise tourism to new era, China Daily, November 8, 2017, available at http://​www.chinadaily.com.cn/​business/​2017-​11/​08/​ content_​34282543.htm.

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Shanghai, Tianjin and Sanya, to serve the growing demand for cruise travel.80 According to the China Communications and Transportation Association, by 2030, China is likely to become the world’s largest cruise market, with eight million to ten million customers each year.81 As such, the importance of marine and cruise tourism in the implementation of the msr initiative has been further recognized. In line with this strategic policy planning, a number of cruise routes along the msr have been developed. In February 2015, the Beibu Gulf Star, hailed by the Chinese mass media as China’s “first msr cruise liner,” made its maiden voyage, departing from Beihai Port in the Guangxi Zhuang autonomous region’s capital, Nanning. The nine-​day cruise travelled to Vietnam’s Da Nang and Nha Trang, the Gulf of Thailand, Malaysia’s Genting, Redang, and finally Kuantan Port in the East Coast Region of Peninsular Malaysia.82 In the spring-​ summer 2017, the cruise route from Hainan Province’s Haikou Xiuying Port to Vietnamese destinations was opened with the maiden voyage of the Chinese Taishan cruise liner, travelling from Haikou to the two popular tourist locations in Vietnam, namely Ha Long Bay and Da Nang, located in the western side of the South China Sea.83 In December of the same year, another route was opened between Haikou and Vietnam’s Ha Long Bay, sailed by the Glory Sea cruise ship. The cruise operator plans to add other destinations, including Da Nang and Nha Trang, as well as Manila and Boracay in the Philippines.84 The Sanya-​Philippine cruise route was opened in December 2017 by Chinese Taishan, sailing from Hainan Province’s Sanya Phoenix Island International Cruise Terminal to the Philippines popular tourist destinations Manila and Borocay.85 China’s Hainan Province and the Philippines are also exploring ways to enhance their marine tourism cooperation by opening more cruise routes to complement the direct flight route between Sanya and Cebu, another popular 80 Ibid. 81 Ibid. 82 Xing Yi and Erik Nilsson, Setting sail along the 21st-​Century Maritime Silk Road route, China Daily, April 20, 2015, available at http://​www.chinadaily.com.cn/​travel/​2015-​04/​ 20/​content_​20477088.htm. 83 Chinese Taishan, Cruise Mapper, http://​www.cruisemapper.com/​ships/​Chinese-​​ Taishan-​645. 84 Launch of the Glory Sea Brings More International Cruise Routes to Haikou for Christmas, Travel Breaking News, December 18, 2017, available at https://​ www.travelbreakingnews.net/​ 2 017/​ 1 2/​ l aunch- ​ o f- ​ t he- ​ g lory- ​ s ea- ​ b rings- ​ m ore-​ international-​cruise-​routes-​to-​haikou-​for-​christmas/​. 85 Sanya cruises to Philippines on popular demand, starts Dec. 22, News & Media, December 8, 2017, available at http://​en.sanyatour.com/​news-​media/​news-​media-​travel-​news/​ sanya-​to-​open-​cruise-​route-​to-​philippines-​on-​december-​22–​2017/​.

62 Song tourist destination in the Philippines. In March 2018, Xiamen Port Holding Group, China International Travel Service and Costa Cruises announced a cruise route passing Brunei, Cambodia, Malaysia, Philippines, Singapore, and Vietnam –​the six countries along the Maritime Silk Road. The 15-​day tour departed from Xiamen, east China’s Fujian Province with 1,800 passengers on board.86 According to China Communication and Transportation Association (ccta), China’s 15 cruise ports received 5,807 cruise ships with 18.1 million outbound and inbound tourists in 2017.87 Efforts have been made not only between China and the asean countries. Maritime and cruise tourism cooperation has also been promoted between and among the Southeast Asian countries. For instance, in April 2017, a Memorandum of Understanding on Marine Tourism Triangle Cooperation was signed to establish a cruise route between Langkawi in Malaysia, Phuket in Thailand and Sabang in Indonesia’s Aceh province.88 Marine and cruise tourism cooperation has also been proposed to expand between Myanmar and Thailand along their Andaman coast,89 and between Thailand and Vietnam in the Gulf of Thailand and the western side of the South China Sea.90 In March 2018, the World Tourism Organization (unwto), the United Nations specialized agency for tourism, concluded preliminary research assessing the impact of China’s 21st Century Maritime Silk Road Project on tourism and more generally, the tourism potential of Maritime Silk Road thematic routes across Asia. The main findings of the research were presented by the lead researcher, Mr. Robert Travels, at the 8th unwto Silk Road Ministers Meeting held in Berlin, Germany, on March 7, 2018.91 Robert Travels reported the development and progress with respect to the 21st Century Maritime Silk Road 86

New cruise route to six Southeast Asian countries launched in Xiamen, China Daily, March 9, 2018, available at http://​usa.chinadaily.com.cn/​a/​201803/​09/​ WS5aa1fc85a3106e7dcc140a32.html. 87 Ibid. 88 Malaysia, Indonesia to Cooperate in Marine Tourism Triangle, Jakarta Post, April 28, 2017, available at http://​www.thejakartapost.com/​travel/​2017/​04/​28/​malaysia-​ indonesia-​to-​cooperate-​in-​marine-​tourism-​triangle.html. 89 Thailand, Myanmar moot maritime tourism on Andaman coast, mizzima, January 23, 2017, available at http://​www.mizzima.com/​news-​regional/​thailand-​ myanmar-​moot-​maritime-​tourism-​andaman-​coast. 90 Thai Tourism Minister believes in cooperation potential with Vietnam, THE VOICE OF VIETNAM, August 12, 2016, available at http://​english.vov.vn/​travel/​thai-​tourism-​ minister-​believes-​in-​cooperation-​potential-​with-​vietnam-​328017.vov. 91 See 8th unwto Silk Road Ministers’ Meeting 2025 Silk Road Tourism Agenda, March 7, 2018, itb Berlin, Germany, at http://​www2.unwto.org/​event/​ 8th-​unwto-​silk-​road-​ministers-​meeting-​0.

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Initiative, citing a number of examples showing that other countries are also investing in maritime route development, which includes investments in heritage tourism, cruise tourism, mice tourism,92 and sport and marine tourism.93 However, the idea of developing joint marine and cruise tourism in the disputed Spratly archipelago by China and the asean countries was not explored in the research project. vi

The Role Played by Hainan Province in Promoting Tourism Cooperation

Due to its geographical location and surroundings, Hainan Province has the advantage of being the gateway to asean countries. With air and sea routes connecting member states of asean and other countries along the 21st Century Maritime Silk Road, the province has been branded as an important hub of China’s msr. As such, Hainan Province will play an important role in the implementation of China’s Silk Road tourism development plan and the marine and cruise tourism cooperation project in the South China Sea. In 2010, the Chinese government issued a document titled “Several Opinions of the State Council on Promoting the Construction and Development of the International Tourist Island in Hainan,” which called for fully using the location and resource advantages of Hainan Province to develop as an international tourist island and popular tourist destination with international competitiveness.94 In July 2012, Sansha was established as a provincial-​level city in Hainan Province, administering China’s claims throughout the South China Sea, including the Paracel Islands, the Spratly Islands, Macclesfield Bank, Scarborough Shoal, and a number of other ungrouped maritime features. The city government of Sansha is located on Yongxing (Woody) Island –​the largest land 92 93

94

Meetings, incentives, conferences and exhibitions (mice) is a type of tourism in which large groups, usually planned well in advance, are brought together for a particular purpose. Keynote presentation, Connecting the Silk Road through land and sea: Tourism Impact of the 21st Century Maritime Silk Road by Mr. Robert Travers, unwto Consultant, March 7, 2018, available at http://​cf.cdn.unwto.org/​sites/​all/​files/​pdf/​msr_​ministers_​7mar18_​ rev.pdf. Several Opinions of the State Council on Promoting the Construction and Development of the International Tourist Island in Hainan, adopted by the State Council of the People’s Republic of China on December 31, 2009 and issued on January 4, 2010. For the text of the document in Chinese, visit http://​www.gov.cn/​zhengce/​content/​2010-​01/​04/​ content_​3971.htm.

64 Song feature in the Paracel archipelago, which is a major base for the Chinese military to project its power into the disputed South China Sea. A runway of about 3,000 meters long and an artificial harbor capable of docking vessels of 5,000 tonnes were built on Woody Island. In January 2016, the China Southern and Hainan Airlines planes that took off from Haikou airport landed on Fiery Cross Reef.95 In April of the same year, China’s navy dispatched a military plane, Y-​8, to Fiery Cross Reef to pick up injured construction workers.96 On July 14, 2016, two days after the announcement of the final award in the arbitration case between the Philippines and China over their disputes in the South China, an Airbus A319 chartered by China Southern Airlines took off from Haikou and landed on Mischief Reef. On the same day, a Hainan Airlines Boeing 737 took off from Haikou and landed on Subi Reef.97 In December 2016, China began daily civilian charter flights to Woody Island. It is believed that these flights are related to China’s future plan to develop marine and cruise tourism in the disputed South China Sea islands. In March 2017, at the asean-​China Governors/​Mayors dialogue, held in Boao, Hainan Province, Liu Cigui, governor of China’s island province, offered two suggestions on strengthening China-​a sean tourism cooperation. The first one was to increase air and maritime routes and the second was to create a Pan-​South China Sea Tourism Economic Rim. He stated that Hainan Province and asean provinces and cities should deepen their cooperation in policy exchanges, joint marketing, information sharing, personnel training and other aspects of cooperation, especially the full integration of tourism resources of various places.98 In January 2018, the provincial government of Hainan released “Hainan Tourism Development Master Plan (2017–​2030),” proposing that from 2017 to 2020, it is necessary to create an international tourist island, to turn Hainan into a pilot zone for the reform and innovation of China’s tourism industry, and to establish a model regional tourism demonstration province. By 2025, Hainan province will be made into a world-​class island resort. The resort is slated 95 96 97 98

China lands more civilian planes on Fiery Cross reef, bbc News, January 7, 2016, available at http://​www.bbc.com/​news/​world-​asia-​china-​35249092. China lands military plane on disputed South China Sea reef, bbc News, April 18, 2016, available at http://​www.bbc.com/​news/​world-​asia-​china-​36069615. Chinese civil aircraft land on new South China Sea airport, Reuters, July 14, 2016, available at https://​www.reuters.com/​article/​us-​southchinasea-​ruling-​airport/​chinese-​civil-​ aircraft-​land-​on-​new-​south-​china-​sea-​airports-​idUSKCN0ZT0ZV. See Boao Forum for Asia Annual Conference, Summary (No. 17), Boao Forum for Asia Institute, March 24, 2017, 2017, available at http://​english.boaoforum.org/​u/​cms/​www2/​ 201703/​3121214281ih.pdf.

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to become a world-​class international tourist destination in 2030.99 Under Chapter 4, Article 14 of the Master Plan, the province, among other things, will actively develop uninhabited island tourism and island tourism in the Paracel archipelago. It will rapidly develop Hainan Island’s cruise tourism, open up the transnational cruise routes between the countries along the msr and a “pan-​South China Sea” cruise route. In addition, the province plans to extend Paracel cruise tourism to the Spratly Islands to develop the South China Sea tourist route that contains one trip with several destinations.100 In April 2018, the asean-​China Governors/​Mayors Dialogue was held in Boao, Hainan Province, where under the main topic of “Cruise Tourism Cooperation along the 21st Century Maritime Silk Road,” they discussed the issues of cruise tourism cooperation, promoting cruise port construction, and launching cruise routes. After the meeting, the “asean-​China Governors/​Mayors’ Dialogue Joint Statement” was issued and the participating governors and mayors agreed to establish a “21st Century Maritime Silk Road Cruise Tourism City Alliance.” Hainan Province called again for the establishment of a Pan-​South China Sea Tourism Economy Cooperation Rim. In the same month, President Xi announced the Chinese government’s decision to turn Hainan Province into a pilot trade zone and gradually promote the establishment of a free port with Chinese characteristics. On April 11, 2018, a document titled: “The Guiding Opinions on Supporting Hainan Province’s Full and Deepen Reform and Opening Up” was released by the Central Committee of the Chinese Communist Party and the State Council. According to the document, the Chinese central government supports Hainan Province’s plans to open transnational cruise tourism routes, supports the plans of Sanya and other cruise ports to develop test destinations for high seas sailing routes, and supports Sanya’s plans to accelerate its pace to develop as a cruise home port. More importantly, the document calls for orderly advancement of the development of the Paracel tourist resource, and then steadily opening up island tourism. The government supports the development of Sanya as a base for marine tourism cooperation and development. In addition, it plans to advance the integration between civilian and military sectors for deepening this development.101 Beginning on May 1, 2018, visitors from 59 99

Hainan:  It will build a world-​class international tourist destination in 2030, available in the official website of the People’s Government of Hainan Province at http://​ en.hainan.gov.cn/​englishgov/​TopNews/​201801/​t20180103_​2516243.html. 100 Chapter 14, Article 14, of the Master Plan, pp. 11–​13. The text of the Plan is available in Chinese at http://​www.askci.com/​news/​chanye/​20171211/​092434113711.shtml. 1 01 The text of the document (in Chinese) is available in the website of XinhuaNet, April 14, 2018, at http://​www.xinhuanet.com/​politics/​2018-​04/​14/​c_​1122682589.htm.

66 Song countries across the world were allowed visa-​free travel to Hainan Province.102 Clearly, it is China’s stated policy to establish the province as an international tourist island and a free trade zone. However, it is not clear whether foreign tourists are allowed to visit the Paracel Islands and the Spratly Islands. vii

“Patriotic Tourism” Developed or to Be Developed in the Disputed South China Sea Islands

China opened the disputed Paracel Islands to marine and cruise tourism in April 2013.103 The cruise route, with ships departing from Hainan Province’s Haikou to the three non-​military land features of the Paracel Islands, namely Yinyu (Silver Islet, also known as Observation Bank), Quanfu Island and Yagong Island, was operated by Hainan Strait Shipping Co. with a single cruise ship, the Coconut Princess (Yexiang Gongzhu). The departing home port was moved from Haikou to Sanya and therefore shortened the sailing time to the visited islands from 20 hours to six hours. The entire four-​day and three-​night trip, which costs between 3,980 yuan (around US $640) and 12,200 yuan (around US $1,962) depending on accommodations, brought about 200 tourists who ate and slept on the cruise ship because the islands they visit are tiny, without hotels, resorts, or other adequate facilities. The tourists have to shuttle back by motorboats to the cruise ship for meals, showers and sleep. Although the tourists can partake in extra activities such as snorkeling, diving, and fishing, they have to pay additional costs that are considered expensive.104 Curiosity and patriotism were reported as the two main reasons for mainland Chinese –​who had to pass background checks –​to take the cruise trip to the Paracel Islands. In March 2016, the Chinese cruise liner Star of Northern Bay took over the operation of the cruise trip to the Paracel Islands and the Coconut Princess 102 US among 59 countries granted visa-​free access to China’s resort island Hainan … but who’s missing? South China Morning Post, April 18, 2018, available at http://​ w ww.scmp.com/ ​ b usiness/ ​ c hina- ​ b usiness/ ​ a rticle/ ​ 2 142259/ ​ u s- ​ a mong- ​ 5 9-​​ countries-​granted-​visa-​free-​access-​chinas-​resort. 103 New cruise ship to serve Xisha island in South China Sea, XinhuaNet, May 21, 2015, available at http://​www.xinhuanet.com/​english/​2015-​05/​21/​c_​134257885.htm. 104 For instance, it costs 600 yuan (around US $100) for a snorkel excursion, 2,800 yuan for an expedition to snorkel above a 5,000 meters deep blue cave or to observe the area from a glass-​bottomed boat, 3,800 yuan for anglers to troll the surf around the Crescent Group. See Sun, surf and patriotism … life as a tourist cruising the South China Sea, South China Morning Post, May 23, 2016, available at http://​www.scmp.com/​news/​china/​ diplomacy-​defence/​article/​1948479/​sun-​surf-​and-​patriotism-​life-​tourist-​cruising-​south.

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stopped its tourist operations. The cruise ship sails to the Paracel Islands with four to five voyages per month. As of December 2016, the cruise ships completed 121 trips and served 23,000 tourists since the cruise route opened in April 2013.105 In December 2016, another new cruise route was launched, operated by the cruise ship Nanhai Zhi Meng (the Dream of the South China Sea), sailing from Hainan Province’s Sanya port to the Crescent group of the Paracel Islands. Destinations are the same as Star of Northern Bay, including Quanfu Island, Yagong Island and Yinyu Islet. The ship is operated and managed by Sansha Nanhai Company, Limited with a total tonnage of 24,572 gross tonnes and a maximum capacity of 893 passengers. This was followed in March 2017 by another new cruise route to the Paracel Islands with the voyage of the cruise ship Princess Changle for ecological tourism, which departs from Sanya Phoenix Island International Cruise Terminal to the three land features in the Paracel Islands: Quanfu Island, Yagong Island and Yinyu Islet. During the four-​day, three-​night or five-​day, four-​night trip, the tourists are able to join planned theme activities such as raising the national flag, serving as an environmental protection volunteer, swimming, semi-​submersible boat sightseeing, or snorkeling and sea fishing. In addition, they are able to land on Yongxing Island (Woody Island), the largest in the Paracel archipelago and capital of the prefectural city Sansha to enjoy dinner at the island’s ballroom. In August 2017, youth from different cities of China boarded the cruise ship Princess Changle for a four-​day summer camp, sailing with other tourists from Sanya Phoenix Island International Cruise Terminal to Quanfu Island, Yagong Island and Yinyu Islet of the Paracel Islands.106 It is believed that China’s marine and cruise tourist development strategy includes the establishment of cruise trips and flight routes to the destinations in the disputed Spratly Islands, particularly the Fiery Cross, Mischief and Subi Reefs. To date, however, the cruise route to the Paracel Islands is the only one open, and is restricted to Chinese nationals between the ages of 15 and 65. Foreigners and residents of Macau, Hong Kong and Taiwan are excluded from joining the tour. China’s “patriotic tourism” in the South China Sea gives rise to a problem of contradiction between words and actions. On the one hand, China has continuously advocated the idea of transforming the South China Sea into “a sea of 105 New Cruise Ship Nanhai Zhi Meng for Xisha Tourism Route will be added by the end of the Month, XinhuaNet, December 9, 2016, available at http://​www.xinhuanet.com/​fortune/​ 2016-​12/​09/​c_​1120090175.htm (in Chinese). 106 The First Xisha Summer Camp Starts Sailing, Will you be that brave youth? Yangcheng Web News, http://​news.ycwb.com/​2017-​08/​21/​content_​25402917.htm (in Chinese).

68 Song peace, friendship and cooperation” and is now proposing the establishment of a Pan-​South China Sea Tourism Economic Cooperation Rim and the “21st Century Maritime Silk Road Cruise Tourism City Alliance.” On the other hand, China continues its “patriotic” marine and cruise tourism in the Paracel Islands and has plans to open up marine and cruise tourism in the disputed Spratly Islands several years from now. This Chinese move will trigger strong reactions from the Philippines and Vietnam. China is not the only claimant to have plans to develop marine and cruise tourism in the disputed Spratly archipelago. Taiwan, the Philippines and Vietnam also have such policy plans. In 2008, Taiwan proposed to develop Taiping (Itu Aba) Island as a marine peace park for the purpose of enhancing positive interaction between Taiwan and neighboring countries and of conserving ecosystems as well as cultural heritage in the South China Sea. The plan, however, was not implemented after a policy evaluation conducted under the previous Ma Ying-​jeou administration. The current Tsai administration has no such plan. The Philippines has expressed its interest in developing marine and eco-​ tourism in the Spratly islands. As far back as 2008, a military chief of the Philippines’ Armed Forces said that the army together with its navy would help bring more tourists to Pag-​asa (Thitu) Island. In April 2017, the Philippine Senator Sonny Angara asked the Duterte administration to support the plan to make Pag-​asa (Thitu) Island a tourist destination by giving a facelift to existing structures like the Rancudo Airfield and by building new facilities for marine activities. He also called on his fellow senators to support Senate Bill 944, entitled “Declaring Pag-​asa Cluster in the Municipality of Kalayaan, Province of Palawan as an Ecotourism Destination and Protected Area, Providing Funds Therefore, and for Other Purposes.”107 A similar measure, House Bill No. 6432, was introduced by Representative Gary C. Alejano to the Committee on Tourism of the Philippines’s House of Representative in September 2017.108

107 Angara wants disputed Pag-​asa isle declared ‘ecotourism spot’, Panay News, April 25, 2017, available at https://​www.panaynews.net/​angara-​wants-​disputed-​pag-​asa-​isle-​ declared-​ecotourism-​spot/​. 108 Explanatory Notes, An Act Declaring Pag-​Asa Island Cluster in the Municiplatity of Kalayaan, Province of Palawan as an Ecotourism Destination and Protected Area, Providing Funds therefore, and for Other Purposes, introduced to the Committee on tourism by Representative Gary C.  Alejano, September 20, 2017, available at http://​ www.congress.gov.ph/​legisdocs/​basic_​17/​HB06432.pdf.

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The government of Vietnam has planned to promote tourism in the disputed Spratly Islands since 2004.109 In December 2011, the “Strategy on Viet Nam’s tourism development until 2020, vision to 2030” was approved by Prime Minister Nguyen Tan Dung. Under the Strategy, Vietnam will develop tourism to be a key economic industry with a high degree of professionalism; modern and fairly synchronously-​developed tourist infrastructure; and high quality, competitive and diversified tourist products imprinted with unique traditional cultural characteristics.110 The general objectives of this strategy are: By 2020, tourism would have basically become a key economic sector, which is modern and professional with relatively uniform technical infrastructure; tourism products would have high quality, diversity and prestige, and they are imbued with national identities and able to compete with other countries in the region and the world. By 2030, Viet Nam strives to become a nation with a developed tourism sector.111 However, according to Huu Thuy Giang Tran, for many years, the concerns over national security and sovereignty have been put ahead of the consideration of tourism development and therefore not much has been done to develop marine and cruise tourism in the disputed South China Sea islands. In June 2015, Vietnam announced a six-​day cruise trip to the disputed Spratly Islands in reaction to China’s marine and cruise tourism developed in the Paracel Islands that Vietnam claims as its territory.112 In March 2017, Vietnam asked China to stop sending cruise ships to the South China Sea.113 Tensions will grow if “patriotic tourism” is developed by China, Malaysia, the Philippines, Taiwan, or Vietnam in the disputed Spratly Islands. This will 109 See Huu Thuy Giang Tran, An exploration of the potential for sustainable tourism development on selected Vietnamese islands, Ph.D. thesis, Southern Cross University, Lismore, nsw, Australia, 2016, p. 106. 110 1. Perspective, Strategy on Viet Nam’s tourism development until 2020, vision to 2030. For the text of this Strategy, visit Government Portal, Socialist Republic of Viet Nam, at http://​www.chinhphu.vn/​portal/​page/​portal/​English/​strategies/​ strategiesdetails?categoryId=30&articleId=10051267. 111 2. Objective, Strategy on Viet Nam’s tourism development until 2020, vision to 2030, ibid. 112 Martin Petty, Vietnam launches “sovereignty” cruise to South China Sea Islands, Reuters, June 5, 2015, available at https://​www.reuters.com/​article/​us-​vietnam-​​ southchinasea-​iduskbn0ok22220150605. 113 More cruise ship problems in East Asia, Insurance Marine News, March 14, 2017, available at https://​insurancemarinenews.com/​insurance-​marine-​news/​more-​cruise-​ ship-​problems-​in-​east-​asia/​.

70 Song affect the efforts made by China and the asean countries to transform the South China Sea into “a sea of peace, stability, friendship, prosperity and cooperation” and will influence the attitudes and policies of the Philippines and Vietnam regarding the implementation of the msr initiative. It will become difficult for the Chinese island province Hainan to put forward its plan to develop the province as an international tourism island and to establish the Pan-​South China Sea Tourism Economic Rim and the 21st Century Maritime Silk Road Tourism City Alliance. viii

asean Countries’ Potential and Interest in Promoting Marine and Cruise Tourism

Efforts have been undertaken by individual Southeast Asian countries and asean as a group to promote sustainable cruise tourism.114 Tourism is viewed by Southeast Asian countries as one of the important engines of economic growth and a pathway for improving the livelihoods of people and communities. Tourism in Southeast Asia has grown tremendously in recent years, in particular in Indonesia, Malaysia, the Philippines, Singapore, Thailand, and Vietnam. Cambodia, Laos, and Myanmar are making efforts to catch up. In 2014, travel and tourism contributed US $117.9 billion (4.8%) of Southeast Asia’s combined gross domestic product. By 2015, this is expected to grow to US $209.4 billion (or 4.9%). This marks Southeast Asia as the second-​fastest growing region for tourism in the world, after South Asia.115 Under the asean Tourism Strategic Plan 2016–​2025, it is anticipated that the gdp contribution of asean tourism will increase from 12% to 15%, tourism’s share of total employment will increase from 3.7% to 7%, and per capita spending by the international tourist will increase from US $877 to US $1,500 by 2025.116 Along with economic development and change in demand arising from demographic 114 See World Tourism Organization and Asia-​Pacific Tourism Exchange Center (2016), Sustainable Cruise Tourism Development Strategies –​Tackling the Challenges in Itinerary Design in South-​East Asia, unwto, Madrid, Chapter  5, pp.  79–​97, available at https://​ www.e-​unwto.org/​doi/​pdf/​10.18111/​9789284417292. 115 Karim Raslan, How Malaysia’s Golden Goose of Ecotourism, Sabah, Keeps the Visitors Coming, South China Morning Post, March 17, 2017, available at http://​ www.scmp.com/​week-​asia/​society/​article/​2079469/​how-​malaysias-g​​ olden-​goose-​ecotourism-​​ sabah-​keeps-​visitors-​coming. 116 Premalatha Jaya and Melissa Chin, The ‘siren call’ of marine ecotourism in ASEAN, Asian Post, September 9, 2017, available at https://​theaseanpost.com/​article/​ siren-​call-​marine-​ecotourism-​asean.

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influence, the increase of outbound tourism from asean countries has been brought by the following factors: (1) the emergence and expansion of low-​cost carriers; (2) the increasing use of the Internet and social media; and (3) the growing middle-​class.117 The majority of asean’s members border the South China Sea; they are, namely, the Philippines, Brunei, Malaysia, Indonesia, Singapore, and Vietnam. If the Gulf of Thailand is included in the larger geographical concept of the South China Sea, then Cambodia and Thailand are also considered bordering countries. Most, if not all, asean countries have great potential and interest in promoting marine and cruise tourism and therefore have prioritized developing cruise tourism with ports and cruise infrastructure projects being developed. Singapore, for instance, revamped its Harbour Front Cruise and Ferry Terminal substantially and built a completely new cruise terminal. The Marina Bay Cruise Centre Singapore is located at Marina South next to the Marina South Pier that opened in 2012.118 In Indonesia, PT Banten West Java (bwj) is preparing to construct a large marina and supporting facilities in Tanjung Lesung to boost cruise tourism and serve as another gateway to the capital. Jakarta currently has no real cruise port. In 2017, bwj kicked off the construction of the Rhino Dive Center that is expected to become an icon of the tourist destination Tanjung Lesung.119 In November 2014, a pact was signed to develop Sicogon Island, located in northern Iloilo of the Philippines, into a world-​class tourist destination.120 Aiming to develop and upgrade hubs for cruise tourism and attract more visitors to asean, Malaysia’s government continues to develop its “Straits Riviera” strip of ports, comprising cruise terminals in Penang, Port Kelang, Kota Kinabalu, Langkawi, Melaka and Kuching.121 Thailand

117 Key Outbound Tourism Markets in South East Asia, unwto, Asia-​Pacific Newsletter, 2014, Issue 34, pp.  49–​ 50, available at http://​cf.cdn.unwto.org/​sites/​all/​files/​pdf/​ newsletterno34140421.pdf. 118 See ASEAN Cruise Tourism, Revitalised and Fast Growing, asean Tourism, http://​ www.aseantourism.travel/​blog/​detail/​asean-​cruise-​tourism-​revitalised-​and-​fast-​growing. 119 Tanjung Lesung eyes cruise ships and divers, Jakarta Post, September 25, 2017, available at http://​www.thejakartapost.com/​news/​2017/​09/​25/​tanjung-​lesung-​eyes-​cruise-​ ships-​and-​divers.html. 120 Rosalinda L. Orosa, Agreement paves way for Sicogon dev’t, Philippine Star, November 13, 2014, available at https://​www.philstar.com/​business/​2014/​11/​13/​1391022/​ agreement-​paves-​way-​sicogon-​devt. 121 Regional player with big plans, Asia Cruise Yearbook, Volume 2, 2016/​2017, p.  27, available at https://​issuu.com/​bigsplashmedia/​docs/​asia_​cruise_​directory_​2016.

72 Song established new cruise destinations at Ko Chang and Ko Phra Thong. In March 2017, the Tourism Authority of Thailand announced massive redevelopment of Phuket as a key cruise home port.122 Southeast Asian countries are the most sought-​after marine and diving tourism destinations due to their beautiful sandy beaches, islands and scenery –​ especially in Indonesia, Malaysia, the Philippines, and Vietnam. These tourist destinations are ideal for water-​based activities such as scuba diving, snorkeling, yachting, jet skiing, para-​sailing and tubing. Thus, over the past few years, these countries have shown greater interest in promoting marine and diving tourism. The Philippines, located in the eastern side of the South China Sea, with 7,107 islands and 40,000 square kilometers of coral reef, earns recognition as a divers’ paradise. Popular diving destinations include Palawan, Puerto Galera, Boracay, Durnaguete, and Malapascua. Subic Bay offers world-​class wreck diving. The best dive sites in the Philippines include: Amos Rock in Tubbataha Reefs Natural Park, Monad Shoal in Malapascua, Canyons in Puerto Galera, Apo 29 of Apo Reef Natural Park, Manta Bowl at Ticao Pass, Donsol, Okikawa Maru in Coron Bay, Palawan, Coconut on Apo Island, Yapak on Boracay, Divers’ Heaven on Balicasag, and Manit Muck in Anilao.123 Brunei Darussalam boasts 4,500 hectares of reef that are home to a wide variety of tropical fish and coral. It offers coral pinnacles, drop-​offs, shipwrecks and even disused oil rigs. Notable dive sites include Brunei Patch, Iron Duke Shoals, Ampa Patch, Louisa Reef, Princes Avenue, Clownfish Avenue and Burn’s Patch. The following are considered top five scuba diving sites in Brunei: Abana Reef, Pelong Island, Australian wreck, American wreck, and Oil rig wreck.124 Malaysia is also regarded one of the world’s top scuba diving destinations, with a variety of underwater landscapes, including slopping reefs, pinnacles, and coral gardens as well as a healthy mix of deep, drift, cave, and wall dives. Sabah’s Spidan and Mabul Islands as well as Perhentian, Redang, and Tioman Island off the east coast of the Malay Peninsula are popular diving destinations.

122 Tourism Authority of Thailand makes a splash in Cruise Tourism, etb Travel News, March 15, 2017, available at http://​australia.etbtravelnews.global/​317391/​ourism-​authority-​of-​ thailand-​makes-​a-​splash-​in-​cruise-​tourism/​. 123 See The 10 Best Dive Sites in the Philippines, Scuba Diving Website For Women, available at https://​www.girlsthatscuba.com/​2017/​02/​22/​the-​10-​best-​dive-​sites-​in-​the-​ philippines/​. 124 See Best Scuba Diving in Brunei, Scuba Diver Life, available at https://​scubadiverlife.com/​ best-​scuba-​diving-​brunei/​.

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Layang Layang Island (Swallow Reef), located in the middle of the South China Sea, is the only diving destination in the disputed Spratly Islands that is open to international divers. The island is a ring of life that drops off more than 3,000 meters into deep ocean and is known for its hammerhead sharks among the diving community.125 Positioned between the South China Sea, the Pacific Ocean, and the Indian Ocean, Indonesia, as the world’s largest archipelagic State, with more than 17,000 islands, is a hub of marine biodiversity. Well-​known scuba diving destinations include North Sulawesi, Komodo, Lombok and the Gili Islands. In July 2017, the Derawan Archipelago in East Kalimantan, Raja Ampat in West Papua, Komodo Island in East Nusa Tenggara, and Tulamben in Bali were selected by cnn as four of the best scuba diving sites in Asia.126 Singapore, a city-​state located close to the world’s busiest shipping lanes, boasts a respectable dive site at Pulau Hantu.127 Moving up from Singapore to the western side of the South China Sea, a number of scuba dive sites are found in the central and southern coast of Vietnam, including Moray Beach, Nha Trang, Ho Trau Nam (Three King Island), Whale Island, Nubibranch Gardens, Phu Quoc, White Rock, Whale Island, Madonna Rock, Nha Trang, Hon Nhan, Hoi An, and Hon Ko (Dry Island), Phu Quoc.128 As far as the other three asean countries that are not bordering the South China Sea, but bordering the Gulf of Thailand or the Andaman Sea are concerned, namely, Cambodia, Myanmar and Thailand, efforts have also been made to promote marine and scuba diving tourism. This is particularly so in in Thailand. Laos, as a landlocked country, is the only member of asean with no potential for, nor interest in, promoting marine tourism. Scuba diving tourism is a relatively recent development in Cambodia and Myanmar. In Cambodia, the seven best dive sites are:  Koh Rong, Koh Rong

125 Ghazali Musa, Sharifah Latifah Syed A.  Kadir, and Lawrence Lee, Layang Layang:  An Empirical Study on Scuba Divers’ Satisfaction, 2 Tourism In Marine Environment 89–​102 (2006). 126 The other six best sites in Asia are:  Sipadan Island in Malaysia, Simian Islands in Thailand, Mergui Archipelago in Myanmar, Andaman Islands in India, Kerama Islands in Japan, and Tubbataha Reef National Park in the Philippines. See 4 of Asia’s Top Ten Dive Sites are in Indonesia, available on the official website of the Ministry of Tourism, Republic of Indonesia at http://​www.indonesia.travel/​in/​en/​news/​ 4-​of-​asia-​s-​top-​ten-​dive-​sites-​are-​in-​indonesia. 127 Pulau Hantu, GS-​ Diving.com, at http://​www.gs-​diving.com/​live-​on-​board-​dive-​info/​ reefs-​in-​local-​singapore-​waters/​pulau-​hantu/​. 128 Oliver Jarvis, 7 of the Best Dive Sites in Vietnam, Underwater 360, available at http://​ www.uw360.asia/​7-​of-​the-​best-​dive-​sites-​in-​vietnam/​.

74 Song Sanloem (Samloem), Koh Kon (Koh Koun), Koh Tang, Koh Prins, Koh Russel, and Condor Reef, located in the Gulf of Thailand.129 In Myanmar, many of the established dive sites remain pristine, but have the potential to be further developed. The offshore reefs of the country’s 800 islands only opened to diving tourism in 1997. Its dive sites are spread out mostly up and down the southwest coast which is home to the Mergui Archipelago in the Andaman Sea. Farther west of the archipelago lie a series of open ocean dive sites which feature larger marine life. Popular dive sites in Myanmar include the Burma Banks, Black Rock, Western Rocky, High Rock, and Little Torres Islands.130 With more than 1,931 kilometers of coastline along the Gulf of Thailand and Andaman Sea, Thailand has great potential for, and interest in, promoting marine and scuba diving tourism. There are a number of world-​class dive sites in Thailand that attract divers from across the world. Top diving locations include the Similan Islands, Phuket, Koh Samui, and Koh Tao.131 Policy and strategy for promoting marine and cruise tourism have been adopted by asean as an organization for the ten Southeast Asian nations. In 2011, an asean tourism strategic plan (2011–​2015) was adopted, which considered culture tourism, nature tourism and cruise tourism as having the highest potential for product development by the various stakeholders in the asean tourist industry.132 In 2015, the asean Tourism Strategic Plan 2016–​2025 was adopted, aiming to achieve the following goal: By 2025, asean will be a quality tourism destination offering a unique, diverse asean experience, and will be committed to responsible, sustainable, inclusive and balanced tourism development, so as to contribute significantly to the socio-​economic well-​being of asean people.133 Under the Plan, one of the activities to be carried out to help enhance the competitiveness of asean as a single tourism destination is to promote the development of cruise and river tourism including its infrastructure for sea

1 29 Id. 130 For dive sites descriptions, visit DIVE THE WORLD.COM at http://​www.dive-​the-​ world.com/​diving-​sites-​burma.php. 131 For more information about Thailand’s diving destinations, visit the website of DIVE THE WORLD.COM at http://​www.divetheworldthailand.com/​thailand-​scuba-​diving-​ sites.php. 132 2011–​2015 asean Tourism Strategic Plan, supra note 68, p. 12. 133 See Executive Summary, asean Tourism Strategic Plan 2016-​2015, available at http://​ www.asean.org/​storage/​2012/​05/​ATSP-​2016–​2025.pdf.

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and river cruises.134 A number of initiatives have been implemented by asean countries to develop new tourism products and experiences in the areas of yachting, river tourism, youth and sports tourism and cruise tourism. In November 2015, the asean countries, together with other participating States of the East Asia Summit, issued a statement on enhancing regional maritime cooperation, in which they committed to enhancing cooperation in sustainable marine economic development to achieve sustainable development of the seas and oceans in accordance with relevant international instruments, particularly the 1982 United Nations Convention on the Law of the Sea. They agreed, among other things, to promote regional maritime cooperation through sustainable marine tourism.135 In July 2017, the 46th meeting of asean National Tourism Organizations was held in Vietnam’s northern province of Vinh Phuc, where the participants discussed the 2016–​2025 asean Tourism Development Strategy Plan, including the building of marketing strategies for asean tourism in 2017–​2020 and implementing the Mutual Recognition Arrangement on Tourism Professionals (mra-​t p). They also talked about creating new tourism products and issuing a joint statement on marine tourism and strategies to encourage the communities and private sectors to invest in tourism. The importance of tourism for asean economies and sustainable development, and efforts taken to promote tourism, have been recognized in the Chairman’s Statement of the 30th and 31st asean Summit held in Manila, the Philippines in April and November 2017, respectively.136 In January 2018, the asean Declaration on Cruise Tourism was adopted by the ministers who attended the 21st meeting of asean Tourism Ministers in Chiang Mai, Thailand. In addition to recognizing the importance of tourism to the economic development of asean, the ministers expressed their desire to further develop and strengthen cruise tourism due to its high economic growth generated in asean. As such, they determined “to 134 Strategic Action No. 1.6 (Implement and Expand Connectivity and Destination Infrastructure, ibid. 135 eas Statement on Enhancing Regional Maritime Cooperation, Kuala Lumpur, November 22, 2015, para. 1, available at http://​www.asean.org/​wp-​content/​uploads/​images/​ 2015/​November/​10th-​EAS- ​Outcome/​EAS%20Statement%20on%20Enhancing%20 Regional%20Maritime%20Cooperation%20-​%20FINAL%2022%20November%20 2015.pdf. 136 See Partnering for Change, Engaging the World, Chairman’s Statement, 30th asean Summit, Manila, April 29, 2017, paragraph 53, available at http://​asean.org/​chairmans-​statement-​ 30th-​asean-​summit/​ and Chairman’s Statement, the 31st asean Summit, November 13, 2017, Manila, Philippines, paragraph 66, http://​www.miti.gov.my/​miti/​resources/​ Media%20Release/​Chairman_​Statement_​of_​31st_​ASEAN_​Summit.pdf?mid=571.

76 Song encourage growth through collaboration among asean Member States and cruise industry stakeholders and spur cruise port and destination related developments through enhancing confidence in the cruise tourism development of the asean Member States.”137 According to the preliminary data shared by the asean tourism ministers, as many as 125 million international tourists visited the association’s member countries in 2017, which was far ahead of the Visit asean @50 campaign’s target of 121 million global inbound visitors. If the data were confirmed, it would mean asean tourism grew by 8.4% from 2016.138 Predictions also suggest that asean countries could potentially welcome up to 4.5 million cruise passengers by 2035, a ten-​fold increase from 2016.139 ix

Proposals Made by Scholars to Promote Cooperation in the Disputed South China Islands

As early as 1992, John W. McManus, an American marine biologist at the University of Miami, advocated for the development of a network of mpa s (Marine Protected Areas) in the scs with a marine peace park in the Spratly Islands.140 In 2010, McManus, together with two Taiwanese researchers, proposed the establishment of a full-​area peace park in the Spratly Islands.141 McManus suggested that a treaty for the Spratly Islands might follow the leads of the 1959 Antarctic Treaty and the 1978 Torres Strait Treaty for raising the flag of truce and freezing ownership claims for a definite period, such as 50 years, with an option for review and indefinite renewal.142 A possible strategy to manage the 137 See Preamble of asean Declaration on Cruise Tourism by asean Tourism Ministers, adopted at the 21st Meeting of asean Tourism Ministers, in Chiang Mai, Thailand, January 25, 2018, available at https://​www.stb.gov.sg/​news-​and-​publications/​Documents/​ Annex%20A%20-​%20ASEAN%20Declaration%20on%20Cruise%20Tourism.pdf. 138 ASEAN Tourism Forum 2018:  Scaling Up in the Next 50 Years, Mekong Tourism, available at https://​www.mekongtourism.org/​asean-​tourism-​forum-​2018-​food-​trips-​ sustainability-​scaling-​next-​50-​years/​. 139 asean members to develop Southeast Asia’s cruise industry, January 29, 2018, available at http://​www.cruiseandferry.net/​articles/​asean-​members-​to-​develop-​ southeast-​asias-​cruise-​industry. 140 John W. McManus, The Spratly Islands: A Marine Park Alternative, 15 Naga, the ICLARM Quarterly, July 1992. 141 John W. McManus, Kwang-​Tsao Shao and Szu-​Yin Lin, Toward Establishing a Spratly Islands International Marine Peace Park:  Ecological Importance and Supportive Collaborative Activities with an Emphasis on the Role of Taiwan, 41 Ocean Development And International Law 270, 275 (2010). 142 Ibid., p. 276.

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Spratly Island International Marine Peace Park was also proposed that might include the following five elements: (1) an international board of directors for the park; (2) a contracted management and research institution; (3) a private, secular ranger force; (4) tourism facilities; and (5) research facilities and programs. A related proposal was made by Aldo Chircop in the same year to promote regional cooperation in the South China Sea by establishing a marine protected area for the entire area.143 As China and the Philippines are in the process of reaching agreement for joint exploration and exploitation of resources in the disputed South China Sea area, it was suggested that the two countries could agree to adopt the disputed waters into a jointly administered ecological and biological exploration action. This would allow scientists from both countries and beyond to explore life in the South China Sea, in an eco-​friendly tourism site that allows people from all over the world to experience the beauty of the South China Sea.144 In 2017, McManus proposed the establishment of the Greater Spratly Islands Peace Park, including Scarborough Reef, which “would be a major step in not only helping to stabilize fish stocks across the South China Sea, but in promoting tourism and regional political stability.” He suggested that the administration of the Park could be handled by an independent contracted agency, under the supervision of a panel of claimant states with an advisory panel made up of thematic experts of global stature. While recognizing the difficulties involved in final settlement of the sovereignty dispute between China and Vietnam over the Paracel Islands, McManus also proposed the establishment of a peace park there.145 In May 2017, Sun Yen, a Chinese scholar at Hainan Tropical Ocean University, proposed establishing a common market for the development of the South China Sea cruise industry, a cooperative organization for the promotion of South China Sea cruise tourism, and an alliance for the development of

143 Aldo Chircop, Regional Cooperation in Marine Environmental Protection in the South China Sea: A Reflection on New Directions for Marine Conservation, 41 Ocean Development And International Law 334, 346 (2010). 144 Shiping Tang and Robin Michael Garcia, A Radical Solution for China and the Philippines:  Share the South China Sea, The National Interest, August 2, 2016, available at http://​nationalinterest.org/​feature/​radical-​solution-​china-​the-​philippines-​ share-​the-​south-​china-​17437. 145 John W.  McManus, Offshore Coral Reef Damage, Overfishing, and Paths to Peace in the South China Sea, 31 International Journal of Marine and Coastal Law 199, 236 (2017).

78 Song Maritime Silk Road tourism.146 In February 2018, Patricia Albano wrote that by “proposing a Spratly Islands Marine Peace Park in the South China Sea, the International Union for Conservation of Nature (iucn) plans to protect this transboundary resource and dedicate it to the preservation of biological diversity and promote peace and cooperation throughout the competing parties involved.”147 x

Tourism Cooperation in the Disputed South China Sea: How to Make It Work?

There are numerous political documents issued by China and the asean countries relating to the idea of promoting marine and cruise tourism cooperation in the disputed South China Sea. A number of peace, economic development, and regional cooperation initiatives proposed by China and/​or the Southeast Asian countries can also be found. Actually, the political commitment has already been made by China and the asean countries in the Declaration on the Conduct of Parties in the South China Sea and a number of official statements adopted since 2002, in which the two sides agree to pursue peaceful efforts to transform the South China Sea into an area of peace, stability, cooperation and development. As all of the countries bordering the South China Sea, with the exception of Taiwan, are members of the United Nations and parties to a number of important international treaties, such as the United Nations Convention on the Law of the Sea148 and the Convention on Biological Diversity, they are bound to honor the resolutions adopted by the United Nations, its specialized organizations, and the rules provided in the treaties. For example, under Article 123 of the unclos, the countries bordering the South China Sea should cooperate in the areas of fisheries, marine environmental protection, and marine scientific research, among others.

146 Sun Yen, A Tentative Study of Regional Cooperation Mechanism for South China Sea Cruise Industry, China Market, May 28, 2017, available in Chinese at https://​ www.pressreader.com/​china/​china-​market/​20170528/​283880163080342. 147 Patricia Albano, Peace through Conservation:  The South China Sea, posted by Aalex Anstett in the web site of Shark Research & Conservation Program, University of Miami on February 26, 2018, available at https://​sharkresearch.rsmas.miami.edu/​conservation/​ peace-​through-​conservation-​the-​south-​china-​sea. 148 Cambodia is the only member state of asean that has not yet ratified the unclos.

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Island construction and military activities conducted on the disputed islands have triggered tension between the claimants and the countries that are outside the area but have important national interests in the South China Sea. It is believed that the proposal to develop a joint marine and cruise tourism cooperation mechanism has the potential to help reduce tension and move forward the realization of the shared policy goal between China and asean countries to transform the South China Sea from a sea of conflict into a sea of peace, stability, friendship, cooperation and prosperity. It is clear that all countries bordering the South China Sea are interested in promoting tourism, including marine and cruise tourism. However, it is not clear whether they are willing to support the idea of developing tourism in the disputed South China Sea islands. China and Vietnam, the two main claimants, have put sovereignty, strategic and security concerns on top of their South China Sea policy planning and therefore might object to the proposal. Accordingly, a precondition for the implementation of a regional tourism cooperation proposal is an agreement between and among the claimant states to put aside their disputes over sovereignty and maritime claims. If the necessary political willing exists, the idea of developing a joint marine and cruise tourism cooperation mechanism in the South China Sea could be introduced to the Joint Working Group and Senior Official Meeting under the 2002 doc for further discussion. The proposal could also be submitted to the asean Tourism Working Group and China-​a sean dialogue meetings for deliberation. If possible, it could also be presented to the Boao Forum for Asia, particularly to be discussed in the asean-​China Governor/​Mayors Dialogue. If the proposal is well received, a study group consisting of experts and official representatives from China and asean countries could be established. First the study group could be asked to address all of the issues in relation to the joint marine and cruise tourism cooperation mechanism, including the term of the agreement. Then the study group could propose an appropriate name for the mechanism such as a council, alliance, or federation, to identify the nature and objective of the mechanism, participating cruise ports, selected disputed islands and areas, and possible cruise routes. Participation should include public and private sectors involved in marine and cruise tourism, financing issues, decision-​making, and the like. The study group could then prepare a final report and submit an official recommendation to relevant governments. If the United States and Canada are able to manage the disputed Machias Seal Island by promoting sea bird tourism, by establishing a Council to protect the marine environment in the Gulf of Maine in 1989, and by adopting an action plan to address issues that require or benefit significantly from regional collaboration, the countries in the disputed South China Sea can take lessons

80 Song from this state practice. If the government of Malaysia is able to turn the disputed Swallow Reef into a world-​class diving resort and open it to international tourists across the world, it is also possible for other disputed islands in the Spratly archipelago, such as Taiping Island, Thitu Island, Spratly (Nanwei) Island, and Mischief Reef, to be turned into tourist destinations open to international tourists. Bear in mind that if China’s National Offshore Oil Corporation (cnooc) and the Philippines’s Philippine National Oil Company (pnoc) were able to sign an agreement for joint marine seismic undertaking in the disputed areas in the South China Sea in September 2004. In the agreement they recognized that the basic positions held by the government of each party on the South China Sea issue should not be undermined.149 Therefore it is not impossible for a similar bilateral agreement for marine and cruise tourism cooperation in the disputed South China Sea islands to be reached by the government agencies in charge of tourism or by national tourism organizations or associations. Likewise, if China’s cnooc, the Philippines’ pnoc, and Vietnam’s Vietnam Oil and Gas Corporation were authorized by their respective governments to sign a tripartite agreement for joint marine scientific research in the disputed areas in the South China Sea in March 2005,150 there also exists the possibility for the tourism authorities or national tourism associations or organizations of the countries bordering the South China Sea and the Gulf of Thailand to sign multiple agreements for the purpose of promoting marine and cruise tourism cooperation in the Gulf and in the Sea. Possible participants in the proposed tourism cooperation mechanism include Brunei, Cambodia, Mainland China, Hong Kong, Indonesia, Malaysia, the Philippines, Singapore, Taiwan, Thailand, and Vietnam (see Table 2.2). Economically speaking, marine and cruise tourism cooperation development in the disputed South China Sea might promote mutually beneficial economic gains for the countries bordering the sea as it provides a sound business environment and improves relations between and among the claimants. China and asean countries should also consider the proposal from a more strategic

149 An Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea, By and between China National Offshore Oil Corporation and Philippines National Oil Company, September 1, 2004, Beijing, China. The text is available at https://​ www.spratlys.org/​documents/​agreement_​bilateral_​marine_​seismic_​undertaking.pdf. 150 A Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea, By and Among China National Offshore Oil Corporation, Vietnam Oil and Gas Corporation, Philippine National Oil Company, in Manila, March 14, 2005. The text of the agreement is available at http://​pcij.org/​blog/​wp-​docs/​RP_​China_​Vietnam_​Tripartite_​ Agreement_​on_​Joint_​Marine_​Seismic_​Undertaking.pdf.

81

Peace through Joint Marine and Cruise Tourism table 2.2 Possible Participating Parties in the Proposed Joint Marine & Cruise Tourism Cooperation Mechanism in the South China Sea

Countries/​ Region

South China Sea

Paracel Islands

Spratly Islands Gulf of Thailand

Brunei

Claim maritime zones under unclos No claim

No claim

Claim 1 feature* No claim

No claim

No claim

Claim all zones under unclos /​IL n/​a Claim maritime zones under unclos

Claim all

Claim all features

n/​a No claim

Claim maritime zones under unclos Claim a significant portion under unclos Claim maritime zones under unclos Claim maritime zones under unclos/​IL

No claim

No claim

n/​a n/​a No sovereignty No claim claims, but sovereign right in the overlapping areas Claim 5 features Claim maritime zones under unclos Claim 8 features No claim

No claim

No claim

No claim

Claim all

Claim all features

No claim

Cambodia

Mainland China Hong Kong Indonesia

Malaysia

Philippines

Singapore

Taiwan

Claim maritime zones under unclos No claim

82 Song table 2.2 Possible Participating Parties in the Proposed Joint Marine (cont.)

Countries/​ Region

South China Sea

Paracel Islands

Spratly Islands Gulf of Thailand

Thailand

Not a bordering country

No claim

No claim

Vietnam

Claim maritime zones under unclos

Claim all

Claim all features

Claim maritime zones under unclos Claim maritime zones under unclos

Tabulated by the author. *In April 2018, it was reported that Brunei abandoned its South China Sea claim for Chinese finance, which however is subject to verification. See Michael Hart, “Brunei Abandons South China Sea Claim for Chinese Finance,” Geopolitical Monitor, April 4, 2018, available at https://​www.geopoliticalmonitor.com/​brunei-​abandons-​south-​china-​sea-​ claim-​for-​chinese-​finance/​.

lens as it can serve as an important instrument to advance diplomacy and security concerns in the disputed South China Sea. The proposal has the potential to achieve a number of political benefits, including: (1) serving as a concrete implementation of the 2002 Declaration on the Conduct of Parties in the South China Sea; (2) helping to implement the 21st Century Maritime Silk Road initiative; (3) promoting tourism and economic development cooperation between China and the asean countries; (4) preventing the escalation of conflict between China and the United States; and (5) helping move forward to achieve the stated policy goal of asean and China to transform the South China Sea from a sea of conflict into a sea of peace, stability, friendship, cooperation, and prosperity. A number of challenges, however, lie ahead for the proposal to be considered favorably by China and the Southeast Asian countries, including the claimant states’ sovereignty and security concerns, resistance from the military, law enforcement issues, lack of facilities in the disputed islands, and the continuity of the “patriotic tourism” developed by China in the disputed South China Sea islands.

­c hapter 3

Multilateral Cooperation in Resolving or Managing International Issues Helmut Tuerk* Abstract The foundation for multilateral cooperation in current international law is to be found in the UN Charter. The duty of cooperation has also permeated the whole process and the result of the Third United Nations Conference on the Law of the Sea. unclos in its Part xi provided for institutionalized multilateral cooperation regarding the seabed beyond national jurisdiction by creating the International Seabed Authority (isa or Authority). In view of the work it has so far accomplished, the Authority has become an excellent example of successful institutionalized cooperation. The milestones in its development were the adoption of Regulations on Prospecting and Exploration for Polymetallic Nodules, for Polymetallic Sulphides and for Ferromanganese Crusts as well as the Advisory Opinion rendered by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. The Opinion clarified the obligations and responsibilities of States sponsoring seabed mining. The isa is now set on a clear course of gradually moving towards the exploitation phase with Draft Regulations on Exploitation of Mineral Resources in the Area being under consideration. The South China Sea fits the definition of a semi-​enclosed sea of Article 122 unclos and Article 123 regarding cooperation of States bordering such a sea. The articles therefore apply. Although it is not an autonomous source of obligations it has to be seen as containing general directives for States bordering enclosed or semi-​enclosed seas to work together. For the South China Sea a mechanism for multilateral cooperation is still lacking. A framework for a Code of Conduct (coc) for the South China Sea has already been endorsed with the objective of adopting a set of norms to guide the conduct of the parties and promote maritime cooperation. Such a Code will in all likelihood not resolve the South China Sea disputes but can certainly contribute to reducing tensions by establishing a framework for a cooperative mechanism among the States bordering that sea. * The author is a former Judge and Vice-​President of itlos. He also held the positions of President of the Assembly and of Chairman of the Review Committee of the isa. Opinions expressed in this article are personal.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_007

84 Tuerk Keywords South China Sea  –​cooperation  –​International Seabed Authority  –​semi-​enclosed seas –​United Nations Convention on the Law of the Sea

1

Introduction

As “Multilateral Cooperation in Resolving or Managing International Issues” is a rather wide-​ranging subject this article will focus on two particular, quite distinct areas, that is the International Seabed Authority (isa), as an example of world-​wide institutionalized multilateral cooperation, and the issue of cooperation among the States bordering enclosed or semi-​enclosed seas, with particular reference to the South China Sea. The first question is as to what may be considered an “international issue”. According to the Oxford Universal Dictionary, an issue “in legal parlance” is a “point or matter in contention” or “a point that remains to be decided”.1 The second definition seems preferable as it distinguishes the term “issue” more clearly from the notion of “dispute”, which has already in a consistent manner been defined by international courts and tribunals. The International Tribunal for the Law of the Sea (itlos), basing itself on earlier jurisprudence, for instance stated in the ‘Southern Bluefin Tuna Cases’, that “a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests”.2 In the “M/​V Norstar Case” the Tribunal furthermore observed that the International Court of Justice (icj) has held that the “existence of a dispute maybe inferred from the failure of a State to respond to a claim in circumstances where a response is called for”.3 Although the distinction between an “issue” and a

1 H. W. Fowler, J. Coulson, C. T. Onions, L. William (eds.), Oxford Universal Dictionary Illustrated, Vol i. (Oxford: Clarendon Press, 3rd edition, 1965). 2 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, itlos Reports, 1999, p. 280, para. 44, citing Mavrommatis Palestine Concessions, Judgment No. 2, 1930, p.c.i.j., Series A, No. 2, p. 11. 3 M/​V ‚Norstar’ Case (Panama v. Italy), Preliminary Objections, Judgment of 4 November 2016, para. 99, citing Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, i.c.j. Reports 2011, p. 70, p. 84, para. 30.

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85

“dispute” is not always clear-​cut, it can be concluded that the term “issue” has a somewhat wider meaning. If an issue is not resolved or properly managed it may, however, evolve into a dispute or even a conflict. 2

Multilateral Cooperation

It has rightly been outlined that one of the most notable aspects of contemporary international law has been its change in the past century from a law of co-​ existence to a law of cooperation.4 It should, however, be noted that the term “cooperation” has never been defined by an international treaty or a resolution of an international organization.5 The foundation for multilateral cooperation in current international law is to be found in the UN Charter,6 which may be considered a constitution for the international community, in particular in its Article 1 (1) and (3) outlining the purposes and principles of the United Nations. International cooperation is also mentioned in Article 11 of the Charter regarding the maintenance of international peace and security and Article 13, inter alia, with respect to the political and economic fields. According to Article 56 of the Charter all Members pledge themselves to take, joint and separate action in cooperation with the United Nations for the achievement of the purposes set forth in Article 55 relating to international economic and social cooperation. The question as to whether there is a general legal obligation of States to cooperate or whether the cited provisions of the Charter are rather of declaratory nature is beyond the purview of the present article.7 In any case, it can be said that international law imposes a whole range of obligations on States to cooperate in good faith in the pursuit of a common objective.8 As regards

4 See W. Friedmann, The Changing Structure of International Law (1964), pp. 60–​67. See also E.  Franckx, M.  Benatar, ‘The Duty to Cooperate for States Bordering Enclosed or Semi-​ Enclosed Seas’, 31 Chinese (Taiwan), Y. B. Int’l L. & Aff., 2015, 66, 67. 5 R. Wolfrum, ‘Cooperation, International Law of’, Max Planck Encyclopedia of Public International Law [MPEPIL], Oxford Public International Law, available at https://​opil.ouplaw.com/​. 6 Available at http://​www.un.org/​en/​sections/​un-​charter/​un-​charter-​full-​text/​. See also B., Simma (ed.), i and ii The Charter of the United Nations, A Commentary, (New York: Oxford University Press, 2010). See further: A. Nollkaemper, ‘Unilaterism/​Multilaterism’, MPEPIL, Oxford Public International Law, B., 2012, 17, available at http://​opil.ouplaw.com/​. 7 Wolfrum, Cooperation, International Law of, C. 15 and 17, above, note 5. 8 E. Franckx, M.  Benatar, The Duty to Cooperate for States Bordering Enclosed or Semi-​ Enclosed Seas, p. 67, above, note 4.

86 Tuerk the law of the sea, such an obligation has in many respects been accepted by the States parties to the United Nations Convention on the Law of the Sea (unclos).9 It needs to be underlined that the duty of cooperation has permeated the whole process and the result of the Third United Nations Conference on the Law of the Sea10 for which the initial spark was provided over 50 years ago by Ambassador Arvid Pardo of Malta. In his famous speech at the UN General Assembly he pointed out that the process leading to a “competitive scramble” for sovereign rights over the land underlying the world’s seas and oceans had already started, surpassing in magnitude and in its implication the 19th century colonial scramble for territory in Asia and Africa.11 Ambassador Pardo added that ´an effective international regime of the seabed and ocean floor beyond a clearly defined national jurisdiction´ was the only alternative in the hope to avoid the escalating tension that would be inevitable if the existing situation were allowed to continue.12 From that visionary speech, a straight line can be drawn to the 1970 “Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction”, declaring these areas the “common heritage of mankind” to be used for the benefit of mankind as a whole.13 These principles were to be enshrined as legal norms in unclos twelve years later. The Convention in its Part xi provided for institutionalized multilateral cooperation regarding the seabed beyond national jurisdiction by creating the isa. In this context it has been stated that such deep seabed mining carried out by an international organization “is nothing more than an activity undertaken by compulsory cooperation of States”.14

9

10

11 12 13 14

United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (hereinafter referred to as unclos), available at http://​www.un.org/​Depts/​los/​convention_​ agreements/​texts/​unclos/​unclos_​e.pdf. R.  Wolfrum, Cooperation, International Law of, D. 27, above, note 5. G. Hafner, ‘The South China Sea as Commons’, xiv Soochow Law Journal, No. 1, (January), 2017, 66. See also S.  Lee, ‘UNCLOS and the Obligation to Cooperate’, in:  C. Schofield, ‘Maritime Energy Resources in Asia: Legal Regimes and Cooperation’, The National Bureau of Asian Research, 37 NBR Special Report, (February), 2012, 25. A. Pardo, unga, 22nd Session, A./​C.1/​PV.1515, 1 November 1967, 12. Id., A./​C.1/​PV.1516, 1. unga Res 2749 (xxv), 17 December 1970, gaor 25th Session Supp 28, 24. Wolfrum, Cooperation, International Law of, D. 27, above, note 5.

Multilateral Cooperation in Resolving

3

87

The Development of the International Seabed Authority15

It should be recalled that at the beginning this new international organization, which became fully operational in 1996, was met with considerable scepticism by many States, particularly by those less satisfied with the provisions of Part xi of the Convention.16 The work so far accomplished by the isa has, however, proven these sceptics to be wrong. Three milestones in its development need to be highlighted: First, in 2000, the adoption of Regulations on Prospecting and Exploration for Polymetallic Nodules, which also included standard clauses for exploration contracts. This enabled the Authority to sign fifteen-​year contracts for exploration with eight investors. Second, in 2010, the adoption of Regulations for Prospecting and Exploration for Polymetallic Sulphides, and in 2012 of similar regulations relating to cobalt-​rich ferromanganese crusts,17 which opened the door for claims for exploration sites to be made in respect of resources other than polymetallic nodules, which had been the only deep seabed resources discussed at the Third United Nations Conference on the Law of the Sea.18 Third, the Advisory Opinion, rendered in 2011 by the Seabed Disputes Chamber of itlos pursuant to Article 191 unclos, on the basis of a request submitted by the Council of the isa.19 This Advisory Opinion constituted an important guideline for States parties to unclos intending to engage in or to sponsor deep seabed mining and for the isa itself.20 It clarified the law on the obligations and responsibilities of sponsoring States and has had a major influence on the decisions of private capital to invest in seabed exploration.21 The Opinion furthermore, has 15

This Section is essentially based on H. Tuerk, ‘The Common Heritage of Mankind after 50 years’, 57 Indian Journal of International Law, No. 3–​4 (December), 2017, available at https://​doi.org/​10.1007/​s40901-​018-​0085-​8. 16 See M. W. Lodge, ‘The International Seabed Authority’, xlvii Revue belge de droit international, (Bruxelles: Éditions Bruylant), 2014, 130, available at https://​www.isa.org.jm/​sites/​ default/​files/​files/​documents/​en-​rev-​2015.pdf. 17 See isa, ‘Consolidated Regulations and Recommendations on Prospecting and Exploration’, Revised Edition, (Kingston, Jamaica, 2015). 18 Lodge, The International Seabed Authority, 131, above, note 16. 19 See Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, itlos Reports 2011, p.  10, para. 242, available at https://​www.itlos.org/​fileadmin/​itlos/​documents/​cases/​case_​no_​17/​adv_​op_​010211.pdf. 20 H. Tuerk, ‘The International Seabed Area’, in:  D. J.  Attard (gen. ed.), M.  Fitzmaurice & N. Martinez Gutierrez (eds.), 1 The IMLI Manual on International Maritime Law, (Oxford University Press, 2014), pp. 276–​303, p. 299. 21 M. W.  Lodge, Secretary-​General of the International Seabed Authority, The Tribunal and the International Seabed Authority:  the future of the advisory and contentious

88 Tuerk prompted many States parties to adopt or update laws and regulations to protect themselves from liability. Until Nauru made its request to the Council, the only entities conducting activities in the Area under a contract with the isa were the so-​called former registered pioneer investors. Since 2011, the Authority has approved 21 further plans of work for exploration, including five awarded to small island developing States.22 As its legal mandate requires the isa to take steps to monitor, control and prevent serious harm to the marine environment as a result of mining activities it has endeavoured to base its regulations not only on sound economic principles but also on rigorous environmental standards, including the application of the precautionary approach,23 as reflected in Principle 15 of the Rio Declaration on Environment and Development, as well as of “best environmental practices”. Seabed mining will not be authorized to proceed without prior environmental impact assessment,24 which according to the Seabed Disputes Chamber is “a direct obligation under the Convention and a general obligation under customary international law”.25 It has been commented, that these isa regulations have set “the gold standard for activities in the high seas with unknown impacts on the marine environment”.26 It is also important to note that there are no current international claims to seabed mining sites outside the regime established by unclos. All pre-​existing claims have been brought within the single regime created by the Convention and the 1994 Implementation Agreement. It has rightly been pointed out that this “not only underlines the near universal acceptance of the international seabed regime but also indicates a degree of confidence in the system as it has been developed through the Authority”.27

22 23 24

25 26

27

jurisdiction of the Seabed Disputes Chamber, Twentieth anniversary celebrations of itlos, 18 March 2017, 5 (on file with author). Id., 5–​6. See Statement by S.N. Nandan, Secretary-​General of the isa, before the UN General Assembly, UN doc. A/​62/​PV.65, 2007, 31. N. A. Odunton, Secretary-​General, of the isa, ‘Statement on Agenda item 76 (a), Oceans and the Law of the Sea’, 66th Session of the General Assembly of the United Nations, 6 Dec. 2011, 4, available at http://​www.isa.org.jm/​files/​documents/​EN/​SG-​Stats/​GA_​ 2011.pdf. See Responsibilities and Obligations of States with Respect to Activities in the Area, para. 145, above, note 19. S.P. Broder and M.  Haward, ‘The International Legal Regimes Governing Ocean Iron Fertilization’, in: H. N. Scheiber and J-​H. Paik (eds.), Regions, Institutions and Law of the Sea, Studies in Ocean Governance, (Leiden/​Boston:  Martinus Nijhoff Publishers, 2013), pp. 185–​219, p. 213. Lodge, The International Seabed Authority, 132, above, note 16.

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Exploration activities are currently taking place not only in the Pacific, but also in the Indian and the Atlantic Ocean. The contractors involved include States, state entities and private corporations sponsored by developed and increasingly also developing countries. The Clarion-​Clipperton Zone in the Eastern Central Pacific, approximately 4.5  million square kilometres in size, where 16 contractors are exploring for polymetallic nodules, by far remains the area of most extensive activities.28 For that Zone an Environmental Management Plan (emp) was approved by the Authority in 2012, exempting roughly 25% of that area from exploration licensing for certain periods.29 A workshop has been planned by the isa in the second half of 2018 to review the status of that regional environmental management plan on the basis of newly available data.30 Furthermore, priority areas for development of regional environmental management plans in the Area have been identified on a preliminary basis at the Mid-​Atlantic Ridge, the Indian Ocean triple junction ridge and nodule-​bearing province, as well as the North-​West Pacific and South Atlantic for seamounts.31 The objective of regional and environmental management plans is to provide the relevant organs of the isa, as wells as contractors and their sponsoring States, with “a proactive area-​based management tool” to support informed decision-​making that balances resource development with conservation.32 The China Oceans Mineral Resources Research and Development Association (comra) has expressed interest in pursuing a cooperative effort with other contractors and stakeholders to develop an environmental management plan for the cobalt-​rich ferromanganese crust zones in the North-​West Pacific, where contractors from China, South Korea, Russia and Japan are carrying out exploration.33 A scientific workshop on this subject was held by the Authority and co-​hosted by comra in Qingdao, China, at the end of May 2018. Another workshop has been convened 28

M. W. Lodge, ‘Implementation of the Common Heritage of Mankind’, in: H.N. Scheiber & J-​H. Paiks (eds.), Regions, Institutions, and Law of the Sea, (Leiden/​Boston:  Martinus Nijhoff Publishers, 2013), 140, footnote 33. 29 P. Weaver and D. Jones, ‘Presentation: Regional Governance and the CCZ Environmental Management Plan’, Towards an ISA Environmental Management Strategy for the Area, ISA Technical Study No. 17, Kingston, Jamaica, 2017, 77. 30 isa, Council, 24th session, Preliminary strategy for the development of regional environmental management plans for the Area, Report of the Secretary-​General, ISBA/​24/​C/​3, IV. 14, 16 January 2018, available at https://​www.isa.org.jm/​document/​isba24c3. 31 Id., iv. 12. 32 Id., ii. 5. 33 Id., iii. 8.

90 Tuerk in Szczecin, Poland, in June 2018, to discuss how to develop regional environmental management plans for polymetallic sulphides deposits on mid-​ ocean ridges.34 To date, the isa has altogether approved 29 contracts for exploration covering areas of the seabed of more than 1.3 million square kilometres.35 Eighteen of these relate to polymetallic nodules, six to polymetallic sulphides and five to cobalt-​rich ferromanganese crusts.36 In 2017, six contracts for exploration of polymetallic nodules that were expiring have been extended for five more years.37 In the course of the debates in the organs of the Authority it has become quite obvious that some States parties are impatient with the length of the exploration phase while others are sounding a note of caution by pointing to the still existing technological challenges for large-​scale commercial deep seabed mining as well as to the unpredictable development of the world market metal prices.38 A precondition for any investor considering funding of deep sea projects is obviously a legal framework for exploitation. Draft ­Regulations on Exploitation of Mineral Resources in the Area are therefore currently under consideration by the Authority.39 The finalization of these Regulations, which must reflect best international standards and practices as well as agreed principles of sustainable development, may still take some time. The efforts by the isa to move to the exploitation phase coincided with the decision by its Assembly in 2015 to undertake, pursuant to Article 154 unclos, a general and systematic review of the manner in which the international regime of the Area has operated in practice.40 This review, which according to the Convention should take place every five years, but which had never been done before, has been carried out under the oversight of a Review Committee, chaired by the author and composed of the President and Bureau of 34

Statement by Secretary-​General M.W. Lodge at the Twenty-​eighth Meeting of States Parties to the United Nations Convention on the Law of the Sea, splos/​28, 11 June 2018, 5. 35 M. W.  Lodge, Secretary-​General of the International Seabed Authority, Remarks to the 88th Meeting of the Ocean Studies Board (Joint Session with the Board on Earth Sciences and Resources) of the National Academies of Science, Washington, D.C., 14 November 2017, 3 (on file with author). 36 isa, Council, Status of contracts for exploration in the Area, ISBA/​24/​C/​5, 16 January 2018. 37 See isa, Council, Status of contracts for exploration and related matters, ISBA/​23/​C/​7, 5 June 2017, paras. 6, 7. 38 Tuerk, The Common Heritage of Mankind after 50 years, 20, above, note 15. 39 isa, Draft Regulations on Exploitation of Mineral Resources in the Area, ISBA/​24/​LTC/​ WP.1, 30 April 2018. 40 isa, Decision of the Assembly, ISBA/​21/​A/​9/​Rev. 1, 24 July 2015.

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the Assembly and the President of the Council.41 The Chairs of the Regional Groups were invited to participate as observers in the Committee, which provided a much broader basis for its deliberations and its decisions, all taken by consensus. The entire review process was carried out over a period of two years, which was a wise move that should also be borne in mind for the next Article 154 review.42 The final report of the Review Committee together with recommendations designed to improve the operation of the regime of the international seabed Area was approved by the Assembly by consensus in August 2017.43 In its respective decision, the Assembly requested the Secretary-​General, in particular, to submit a draft strategic plan for consideration in 2018 defining the strategic direction and aims of the isa.44 The draft of such a plan for the five-​year period 2019–​2023 was adopted by the Assembly in July 2018,45 after having been submitted to stakeholders for comments. According to that plan a comprehensive regulatory mechanism for commercial deep seabed mining is to be established incorporating effective protection of the marine environment and of human health and safety, the equitable sharing of financial and other economic benefits from activities in the Area, and allowing for fully integrated participation of developing States consistent with the principle that the Area and its resources are the common heritage of mankind.46 At the present time, the isa is thus set on a clear course of gradually moving towards the exploitation phase. Technology is also no longer the limiting factor that it was in the 1980s and 1990s.47 The current work of the isa is also characterized by intensified stakeholder participation as well as a steadily increasing number of non-​governmental observers at its annual sessions which is also a 41

42 43 44 45 46 47

See Letter dated 3 February 2017 from the Chair of the Committee established by the Assembly to carry out a periodic review of the international regime of the Area pursuant to Article 154 of the United Nations Convention on the Law of the Sea to the Secretary-​ General of the International Seabed Authority, ISBA/​23/​A/​3, 8 February 2017. See Statement by Ambassador Helmut Tuerk, Chair of the Article 154 Review Committee, 16 August 2017, 3, available at www.itlos.org. isa, Decision of the Assembly relating to the final report of the first periodic review of the international regime of the Area pursuant to Article 154 of the United Nations Convention on the Law of the Sea, ISBA/​23/​A/​L.2/​Rev.2, 18 August 2017. Id., Section E, para. 1. isa, Decision of the Assembly of the International Seabed Authority relating to the strategic plan of the Authority for the period 2019–​2023, ISBA 24/​A/​10, 27 July 2018. Id., strategic plan, ISBA 24/​A/​10, II/​7. Lodge, Remarks to the 88th Meeting of the Ocean Studies Board (Joint Session with the Board on Earth Sciences and Resources) of the National Academies of Science, 5, above, note 35.

92 Tuerk clear indication of renewed and growing interest in deep seabed mineral exploitation. The successful conclusion of the review process has furthermore provided a new impetus. The adoption of a strategic plan has been an important step by the Authority to further engage with stakeholders in implementing the regime of the Area for the benefit of mankind as whole.48 The development of mineral resources in the deep sea has the potential of generating important economic returns but also raises significant governance challenges.49 Two key issues have been identified in that context: how to share the financial benefits the Authority can expect to receive from deep seabed mining and what the environmental impact of such activities might be, giving rise to legitimate concern.50 The isa will have to determine both the rate at which exploitation of the Area will be allowed and the way in which the proceeds from exploitation will be shared among the members of the international community as well as between current and future generations.51 It currently seems, however, that the first source of revenue will rather be the payments made on the basis of Article 82 unclos by coastal States exploiting the continental shelf beyond 200 nautical miles than any revenues derived from the exploitation of the deep-​seabed.52 The Authority will also have to put an environmental management strategy in place prior to commencement of commercial operations.53 In this connection, it has also been pointed out that only a very small fraction of the seabed is ever likely to be exploited for minerals, and that under conditions that mitigate any effects.54 As the strategic plan highlights, a critical element in advancing deep-​seabed mining is to work for regulatory certainty, with clear requirements to ensure environmental protection and clear financial terms.55 48 49

Tuerk, The Common Heritage of Mankind after 50 years, 23, above, note 15. M. W. Lodge, K. Segerson and D. Squires, ‘Sharing and Preserving the Resources in the Deep Sea:  Challenges for the International Seabed Authority’, 32 IJMCL, (Leiden, Brill Nijhoff, 2017), 427. 50 See id., 456. 51 Id. 52 See M. W. Lodge, ‘International Seabed Authority and Article 82 of the UN Convention on the Law of the Sea’, 21(3) IJMCL, 332 and 333. See also isa Technical Study No. 12:  ‘Implementation of Article 82 of UNCLOS’, (Kingston, Jamaica, 2012), available at https://​www.isa.org.jm/​sites/​default/​files/​files/​documents/​ts12-​web_​0.pdf. 53 See also isa Technical Study No. 17: ‘Towards an ISA Environmental Management Strategy for the Area’, (Kingston, Jamaica, 2017), available at https://​www.isa.org.jm/​sites/​default/​ files/​files/​documents/​berlinrep-​web.pdf. 54 M. W.  Lodge, ‘At the Helm—​An Interview with new ISA Secretary-​General Michael W. Lodge’, i DSM Observer, Deep Seabed Mining News & Resources, Issue i, 2017, 3. 55 Strategic plan, iii. 12, above, note 46.

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The overall performance of the isa since 1996 can be considered as having been positive beyond original expectations.56 It is an excellent example of successful institutionalized multilateral cooperation in managing the issue of the exploration and exploitation of the seabed beyond the limits of national jurisdiction as a trustee of humankind. 4

Multilateral Cooperation among the States Bordering Semi-​Enclosed Seas and the South China Sea57

The issue of semi-​enclosed seas together with that of enclosed seas has for the first time surfaced in the course of the negotiations leading to unclos as the trend towards a twelve-​nautical mile territorial sea and the emergence of the new concept of the Exclusive Economic Zone (eez) had raised concerns among a number of States bordering such seas.58 Various proposals were thus submitted at the Third United Nations Conference on the Law of the Sea regarding direct cooperation between States bordering enclosed and semi-​ enclosed seas or the establishment of regional arrangements.59 These proposals related to the preservation and protection of the marine environment, the control of pollution, the coordination of the exploration and management of biological resources, the delimitation of the territorial sea, navigation and scientific research.60 The majority of States were, however, opposed to the adoption of specific rules for enclosed and semi-​enclosed seas in respect of such subjects or did not want to have any special rules for these seas in the Convention at all. Part ix of unclos on enclosed or semi-​enclosed seas is thus a compromise between these opposite positions at the Conference.61 It

56 57 58 59 60 61

Tuerk, The Common Heritage of Mankind after 50 years, 283, above, note 15. See also C. Antrim, ‘The International Seabed Authority Turns Twenty’, 16 Georgetown J. Intl. Aff., 2015, 194. See also I.  Townsend-​Gault, ‘Maritime Cooperation in a Functional Perspective’, The National Bureau of Asian Research, 37 NBR Special Report, (February), 2012, 11–​16. B. Vukas, ‘Enclosed or Semi-​Enclosed Seas’, Max Planck Encyclopedia of Public International Law [MPEPIL], Oxford Public International Law (Oxford University Press, 2015). A. 3., 3, available at https://​opil.ouplaw.com/​. See S.N. Nandan, N.S. Rosenne (Vol. eds.), United Nations Convention on the Law of the Sea 1982, A  Commentary, Vol. 2, (Dordrecht/​Boston/​London:  Martinus Nijhoff Publishers, 1993), 357–​364. Vukas, Enclosed or Semi-​Enclosed Seas, A.1. 6–​8., above, note 58. Id., C.1.15.

94 Tuerk contains only two articles, one concerning the definition of such seas and the other on cooperation of States bordering them. Article 122 of unclos defines “enclosed or semi-​enclosed sea” as a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. An essential condition that must be fulfilled by a body of water to be qualified as an enclosed or semi-​enclosed sea is that it must be bordered by more than one coastal State and consist entirely or primarily of the territorial seas and eez’s of two or more coastal States.62 It has been pointed out that altogether between forty and fifty seas in different regions of the world would satisfy the conditions of that article and that this definition excludes in fact only clearly oceans from the category of enclosed or semi-​ enclosed seas.63 Article 123 unclos deals with cooperation of States bordering enclosed or semi-​enclosed seas. Such States should cooperate with each other in the exercise of such rights and the performance of their duties under the Convention. To this end they shall endeavour, directly or through an appropriate regional organization:  to coordinate the management, conservation, exploration and exploitation of the living resources of the sea, the implementation of their rights and duties with respect to the protection and preservation of the marine environment as well as their scientific research policies and undertake where appropriate joint programmes of scientific research in the area. They shall furthermore endeavour to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article. There seems to be a broad consensus that the geography of the South China Sea fits the definition of semi-​enclosed sea of Article 122 and that Article 123 therefore finds application.64 The question arises as to the normative content of the provision regarding cooperation and coordination between States bordering such a sea. It has been maintained that while the text of Article 123 declares merely that such States should “cooperate” there would seem to be “no reason to interpret that provision as creating anything less than a legal duty 62 63 64

Id., B.2.11. Id., B.2.13. Franckx, Benatar, The Duty to Cooperate for States Bordering Enclosed or Semi-​Enclosed Seas, 69, above, note 4.  See also N.-​T.A. Hu, ‘Semi-​enclosed Troubled Waters:  A New Thinking on the Application of the 1982 UNCLOS Article 123 to the South China Sea’, 41 Ocean Development & International Law, (Routledge, 2010), 282.

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of cooperation”.65 It should, however, be borne in mind that the expression “should” is clearly a form of hortatory language standing in contrast with the term “shall” which implies mandatory language.66 In this context, the argument has been made that in some instances “should” can also be used to express a duty or obligation.67 This may be true, this is, however, not the case with respect to the use of that term in unclos in general nor as regards Article 123 unclos.68 The negotiating history of these provisions unequivocally proves that point as an earlier draft of that Article which had employed the expressions “shall cooperate” and “shall coordinate” did not find general acceptance. The author was present when the Chairman of the Second Committee of the Conference explained why he had changed the text of that Article and made it “less mandatory”, that is in response to “expressions of dissatisfaction” with its provisions.69 It was only by weakening that text that the Chairman was able to ignore calls for deletion of Part ix of the Convention.70 As a former negotiator at the Third United Nations Conference on the Law of the Sea, the author can confirm that there was no intention to grant additional rights or impose new obligations on States bordering semi-​ enclosed seas. The rights, jurisdiction, and obligations of these States therefore correspond to those of other coastal States.71 In the Mox Plant Case before itlos Judge Anderson pointed out in his Separate Opinion, that Article 123 was cast in weak terms (“should”/​“shall endeavour”) “in order to safeguard the worldwide application of the Convention’s provisions and its unified character”.72

65

See for instance M.  C. W.  Pinto, The Duty of Co-​Operation and the United Nations Convention on the Law of the Sea, in A.  Bros, H.  Siblesz and W.  Riphagen:  (eds.), Realism in Law-​Making:  Essays on International Law in Honour of Willem Riphagen, Dordrecht: Nijhoff, 1986, 140. See also id. Hu, 304. 66 See Franckx, Benatar, The Duty to Cooperate for States Bordering Enclosed or Semi-​ Enclosed Seas, 67, above, note 4.  See also Nandan and Rosenne, unclos 1982, A Commentary, 366, above note 59. 67 Id., Franckx, Benatar, 73, footnote 21, citing Appellate Body Report, ‘Canada-​Measures Affecting the Export of Civilian Aircraft’, para. 187, WT/​DS70/​AB/​R (Aug. 20, 1999). 68 See M.  H. Nordquist et  al., 3 United Nations Convention on the Law of the Sea 1982:  A Commentary, xliii-​xliv, (‘Note on the Use of the Word ‘Shall’’), (Springer, 1995). 69 Nandan and Rosenne, unclos 1982, A Commentary, 362, above, note 59. 70 Id., 364. 71 Id., 365. See also Vukas, Enclosed or Semi-​Enclosed Seas, above, note 58. 72 Mox Plant Case (Ireland v. United Kingdom), Order of 3 December 2001, 5 itlos Reports 2001, 95, Separate Opinion of Judge Anderson, 124, 129.

96 Tuerk Although Article 123 is not an autonomous source of obligations73 it has to be seen as containing general directives for States bordering enclosed or semi-​ enclosed seas to work together.74 These States are thus encouraged to initiate attempts to coordinate the functions, activities and policies mentioned therein. It may well be said that if a State bordering such a sea consistently rejects all requests by other States bordering the respective sea to enter into meaningful negotiations concerning one of the enumerated subject matters it would be acting contrary to the provisions of Article 123.75 It should also not be overlooked that the three areas referred to in that Article—​ marine living resources, marine environment, marine scientific research—​are already dealt with by other provisions of unclos which include binding cooperative duties.76 Besides fisheries, this is particularly true of the protection and preservation of the marine environment. As emphasized by itlos in the Mox Plant Case “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part xii of the Convention and general international law”.77 The South China Sea can certainly be considered the most complicated and disputed territorial and maritime region in the world. Nevertheless, or just because of that, endeavours are all the more important not only at a bilateral but also at a multilateral level between the States bordering that sea to strengthen their cooperation. Irrespective of various already on-​going cooperation activities in that area a mechanism for multilateral cooperation is still lacking.78 While each semi-​enclosed sea has its particular characteristics, is located in a different geographical region and finds itself in a distinct political and economic environment it would nevertheless seem useful to draw, as far as feasible, on the experience and practice of cooperation between the countries bordering other such seas, such as the Caribbean and the Mediterranean.79 Fields of cooperation could include, besides those mentioned in Article 123, for instance exploration and exploitation of non-​living resources, safety of navigation, search and rescue, and combatting transnational crime.

73 74 75 76 77 78 79

Franckx, Benatar, The Duty to Cooperate for States Bordering Enclosed or Semi-​Enclosed Seas, 80, above, note 4. Vukas, Enclosed or Semi-​Enclosed Seas, C.1.17, above, note 58. Id., C.1.19. Franckx, Benatar, The Duty to Cooperate for States Bordering Enclosed or Semi-​Enclosed Seas, 81, above, note 4. Mox Plant Case, p.110, para. 82, above, note 72. Hafner, The South China Sea as Commons, 78, above, note 10. Hu, Semi-​enclosed Troubled Waters, 283–​299, above, note 64.

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The Declaration on the Conduct of the Parties in the South China Sea (doc) of 2002,80 the first regional document relating to the South China Sea, followed by the Guidelines for its Implementation in 2011,81 was a first step towards multilateral cooperation in this region and has led to some positive results. In August 2017, the Foreign Ministers of the Association of Southeast Asian Nations (asean) and China endorsed the framework on the Code of Conduct for the South China Sea (coc) “to facilitate the work for the conclusion of an effective coc on a mutually-​agreed timeline”.82 The objectives listed in that framework concern the establishment of “a rules-​based framework containing a set of norms to guide the conduct of parties and promote maritime cooperation in the South China Sea, to promote mutual trust, cooperation and confidence, prevent incidents, manage incidents should they occur, and create a favourable environment for the peaceful settlement of the disputes and to ensure maritime security and safety and freedom of navigation and overflight”.83 One of the principles mentioned in that framework is that “the coc is not an instrument to settle territorial disputes or maritime delimitation issues”. There are also several “basic undertakings”, which include the duty to cooperate and the promotion of maritime cooperation.84 From an ideal point of view, a definite resolution of all pending issues and disputes relating to a particular geographic region would seem to be the best solution. However, this may, also for domestic political reasons, not always be feasible. Thus, dispute management instead of dispute resolution can be a viable alternative. A good example are the various maritime disagreements between the United States and Canada regarding fisheries, maritime boundaries and navigational rights which have been circumvented by cooperative agreements and arrangements that manage these disputes, while both States continue to assert their international legal positions.85 Best known are the 80

Declaration on Conduct of Parties in The South China Sea, November 4, 2002, available at http://​asean.org/​?static_​post=declaration-​on-​the- ​conduct- ​of-​parties-​in-​the- ​south-​ china-​sea. 81 Guidelines to Implement the doc, available at http://​www.asean.org/​storage/​images/​ archive/​documents/​20185-​DOC.pdf. 82 I. Storey, ‘Assessing the ASEAN-​China Framework for the Code of Conduct for The South China Sea’, ISEAS Yusof Ishak Institute, No. 62, 2017, 1. 83 Id., 4. 84 Id., 5. See also in this volume, Y. Song, ‘Peace through Joint Marine and Cruise Tourism in the Disputed South China Sea Islands: Opportunities and Challenges’. 85 Ted L. McDorman, Salt Water Neighbors, International Ocean Law Relations between the United States and Canada (Oxford University Press, 2009), 331. See also T.  Davenport, ‘Joint Development in Asia:  Some Valuable Lessons Learned’, The National Bureau of Asian Research, 37 NBR Special Report, (February), 2012, 150.

98 Tuerk cooperative procedures put in place by these two countries in order to facilitate navigation by icebreakers in their respective waters, despite different views as to the legal status of some of these waters.86 It has been pointed out that it is because of these cooperative agreements and arrangements that ocean matters, which once dominated the Canada-​US bilateral agenda are now seen as minor issues.87 The political situation in the South China Sea, involving several countries with competing territorial and maritime claims, is certainly not quite comparable to these maritime disagreements between the United States and Canada. Nevertheless, it may sometimes be useful to learn, as far as applicable, from the positive experience of others. A Code of Conduct will in all likelihood not resolve the South China Sea disputes but it can certainly contribute to reducing tension by establishing a framework for a cooperative mechanism among the States bordering that sea, providing for step by step implementation.88 It will depend on the “collective wisdom” of these States to turn that region by all the means they consider appropriate into an area of peace, security and cooperation.89 86 87 88

89

Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation, E101701-​CTS No. 1988/​29, available at http://​ www.treaty-​accord.gc.ca/​text-​texte.aspx?id=101701&pedisable=false&Lang=eng. McDorman, Salt Water Neighbors, above, note 85, 337. See also R. Beckman, ‘Can the COC Establish a Framework for a Cooperative Mechanism in The South China Sea?’, 9th South China Sea International Conference: Cooperation for Regional Security & Development, November 2017, Ho Chi Minh City, Vietnam, Part 5 Conclusions, Centre for International Law, National University of Singapore, 27–​28. See also N-​T. A. Hu, ‘South China Sea: Troubled Waters or a Sea of Opportunity?’ 41 Ocean Development & International Law, No. 3, 2010, 211, available at https://​doi.org/​10.1080/​ 00908320.2010.499312.

­c hapter 4

Jurisdictional and Substantive Aspects in the Application of unclos Article 83(3) in Recent International Decisions Xinjun Zhang* Abstract Alleged violation of unclos Article 83(3) by unilateral hydrocarbon activities may fall into the scope of Article 298(1)(a)(i), according to which “disputes concerning interpretation or application of Article 83 relating to sea boundary delimitation” shall be excluded from adjudication or arbitration but submitted to a compulsory conciliation. In the Ghana/​Côte d’Ivoire case (2017), the Special Chamber of itlos does not regard violations of unclos Article 83(3) as “disputes concerning maritime delimitation”; in the South China Sea Arbitration (2016), the tribunal is of the view if submissions are not “disputes concerning maritime delimitation”, Article 298 will not limit the tribunal’s jurisdiction. None of these cases involves such an actual jurisdictional objection, but the reasoning of the Chamber and the tribunal does not do favor to the interpretation that Article 298(1)(a)(i) limits their jurisdictions over questions of Article 83(3). Timor-​Leste and The Commonwealth of Australia (2018) is the first case of compulsory conciliation, whose proceedings are initiated pursuant to Article 298(1)(a)(i). The Compulsory Conciliation Commission in its Decision on Competence firmly holds that it has jurisdiction on a question of Article 83(3) (the question of transitional arrangements pending a final delimitation). This decision can only be made by interpreting Article 298(1)(a)(i) to the extent that such a question has been excluded from compulsory procedures entailing binding decisions. This interpretation is a direct answer to the jurisdictional question in the application of Article 83(3) as to which compulsory venue it shall be subjected to under Article 298(1)(a)(i). The interpretation is by no means less authoritative, given that the Commission has the power to determine its competence by interpreting Article 298 and its Decision on Competence is binding on the Parties. The substance of violation of unclos Article 83(3) by unilateral hydrocarbon activities is considered in Ghana/​Côte d’Ivoire, some ten years after the Guyana/​Suriname tribunal decided on the same subject (2007). In Guyana/​Suriname, the tribunal takes * Xinjun Zhang is an Associate Professor, School of Law, Tsinghua University.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_008

100 Zhang the nature of the unilateral activities as a factor necessarily linked to the decision on the violation of the obligation “not to jeopardize or hamper the reaching of the final agreement” in the second half of Article 83(3) as far as they occurred in the disputed area that both sides can lay overlapping claims. Guyana’s hydrocarbon activities that bring about physical changes, lead to the finding of its violation. In Ghana/​Côte d’Ivoire, the nature of Ghana’s hydrocarbon activities (resulting in physical change) is no longer decisive and the Special Chamber does not find such a violation merely by the occurrence of such activities. Judge Paik in his Separate opinion considers that, apart from the nature and type, the allegation of Ghana’s violation is to be further restricted by considering the time and location of its unilateral hydrocarbon activities, to the extent that such activities are in dispute “were, and should have been” clear to Ghana. This approach can also be found in the Special Chamber’s reasoning on the question whether Ghana’s unilateral activities pending delimitation violate Côte d’Ivoire’s sovereign rights. As a result, the restricted geographic and temporal scope for the violation of pre-​delimitation obligations will make some unilateral hydrocarbon activities permissible even though they occur in the disputed area in which both sides can lay overlapping claims. This indicates a need of balance on the consideration of the interest of the States in pursuing economic development in a disputed area pending delimitation. In this regard, Judge Paik’s approach is certainly warranted.

Keywords compulsory conciliation –​maritime delimitation –​International Tribunal for the Law of the Sea –​Ghana/​Côte d’Ivoire Case; hydrocarbons –​dispute settlement –​economic development –​United Nations Convention on the Law of the Sea

i

Introduction

The identical paragraph 3 of Article 74 and Article 83 of the United Nations Convention on the Law of the Sea (hereinafter “the Convention”)1 prescribes obligations of the party states in the disputed eez/​Continental Shelf area pending delimitation. The contents of the obligations, for example what efforts shall be made in reaching “provisional arrangements of a practical nature”, or what unilateral activities may breach the obligation that do not “jeopardize or 1 United Nations Convention on the Law of the Sea (unclos), 1833 UNTS 39. Article 74(3) and Article 83(3).

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hamper the reaching of the final agreement”, attract attention from academia.2 There has never been a standard answer.3 Another immediate issue in the application of the identical provisions is which compulsory proceedings should disputes concerning such Articles be submitted if the conditions set up in Section 1 of Part xv of the unclos had been cleared. It is particularly controversial when a State has made a declaration under Article 298 to exclude disputes concerning the interpretation or application of Article 74 and 83 relating to sea boundary delimitation from adjudication and arbitration, in which case the disputes shall be submitted to a compulsory conciliation. Disputes concerning the interpretation or application of Article 83(3) of the Convention have been submitted in the two cases concluded in 2017 and 2018: one to the Special Chamber of the International Tribunal for the Law of the Sea (itlos) (hereafter “Special Chamber”) on the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire (hereafter “Ghana/​Côte d’Ivoire”);4 the other to a Compulsory Conciliation (Conciliation between The Democratic Republic of Timor-​Leste and The Commonwealth of Australia, hereafter “Timor-​Leste and The Commonwealth of Australia”).5 Both 2 See Rainer Lagoni, Interim Measures Pending Maritime Delimitation Agreements, 78 Am. J. Int’l L. 345, 345–​68 (1984); David H. Anderson & Youri van Logchem, Rights and Obligations in Areas of Overlapping Maritime Claims, in The South China Sea Disputes and the Law of the Sea 192–​228 (S. Jayakumar, Tommy Koh & Robert Beckman eds., 2014); Van Logchem, The Scope for Unilateralism in Disputed Maritime Areas, in The Limits of Maritime Jurisdiction 175–​197 (Clive H. Schofield, Seokwoo Lee & Moon-​Sang Kwon eds., 2014); Natalie Klein, Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes, 21 Int’l J. Marine & Coastal L. 423, 423–​460 (2006); Enrico Milano & Irini Papanicolopulu, State Responsibility in Disputed Areas on Land and at Sea, 71 Heidelberg J. Int’l L. 587, 587–​640 (2011) (“Heidelberg Journal of International Law” is also published as “Zeitschrift für ausländisches öffentliches Recht und Völkerrecht”); Yoshifumi Tanaka, Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/​Côte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS, 46 Ocean Dev. & Int’l L. 315, 315–​330 (2015); Masahiro Miyoshi, The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf with Special Reference to the Discussions at the East-​West Centre Workshops on the South-​East Asian Seas, 3 Int’l J. Estuarine & Coastal L. 1, 1–​18 (1988). 3 David H.  Anderson & Youri van Logchem, Rights and Obligations in Areas of Overlapping Maritime Claims, in The South China Sea Disputes and the Law of the Sea 206 (S. Jayakumar, Tommy Koh & Robert Beckman eds., 2014). 4 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/​Côte d’Ivoire), Judgment of 23 September 2017, available at, https://​www.itlos.org/​fileadmin/​itlos/​documents/​cases/​case_​no.23_​merits/​C23_​Judgment_​ 23.09.2017_​corr.pdf. 5 [2016-​10] Conciliation between The Democratic Republic of Timor-​Leste and The Commonwealth of Australia, available at, https://​pca-​cpa.org/​en/​cases/​132.

102 Zhang cases are important in the interpretation and application of Article 83(3) and the relevant decisions will be discussed in this article. Chapter Two deals with the jurisdictional question in the application of Article 83(3). In Ghana/​Côte d’Ivoire, the Special Chamber finds Article 83(3) disputes cannot be regarded as “disputes concerning maritime delimitation”. Although Article 298(1)(a)(i) does not come up as a jurisdictional issue in the instant case, such a finding nevertheless gives rise to the issue on the scope of exclusion under Article 298(1)(a)(i). In Timor-​Leste and The Commonwealth of Australia, it is Australia’s declaration under Article 298(1)(a)(i) that enables Timor-​Leste to initiate proceedings of a compulsory conciliation pursuant to Article 298(1)(a) (i) and Annex v of the Convention. The Compulsory Conciliation Commission in the instant case finds that it has jurisdiction on the question of transitional arrangements pending a final delimitation. This decision can only be made by interpreting Article 298(1)(a)(i) to the extent that such a dispute has been excluded from compulsory procedures entailing binding decisions. This is a direct answer to the jurisdictional question in the application of Article 83(3) and an important interpretation of Article 298 (1)(a)(i). The Compulsory Conciliation Commission clearly states that it has the power to determine its competence by interpreting Article 298 and its Decision on Competence has been binding on the parties,6 thus making it distinctive to its report on the substantive issues submitted for conciliation which is merely recommending in nature.7 Chapter Three examines the substantive aspects of the application of Article 83(3), in particular the obligation “not to jeopardize or hamper the reaching of the final agreement in the second half of the provision”. Ghana/​Côte d’Ivoire is the second case wherein Article 83(3) was interpreted and applied, and it was decided ten years after the Guyana v. Suriname case was decided by an Annex vii arbitral tribunal.8 Although these two cases involve unilateral hydrocarbon activities with a nature of “physical change” in the disputed area pending maritime delimitation, not like the Guyana v. Suriname tribunal, the Ghana/​Côte d’Ivoire Chamber does not find the parties in breach of their obligations under the Convention or any state responsibility incurred. A comparison is to be made with regard to the relevant decisions in the two cases. The author will further take note of Judges Paik’s approach in interpreting the 6 Report and Recommendations of the Compulsory Conciliation Commission between Timor-​Leste and Australia on the Timor Sea, available at, https://​pcacases.com/​web/​sendAttach/​2327, para.66. 7 Ibid., paras.51, 54. See, also article 7 of Annex v. 8 Guyana v. Suriname, Award of the Arbitral Tribunal (September 17, 2007), available at, https://​ pcacases.com/​web/​sendAttach/​902.

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second obligation of Article 83(3) in his Separate Opinion in the Ghana/​Côte d’Ivoire case. An appraisal of his approach will be added in the Conclusion. ii

Jurisdictional Findings Regarding Article 83(3) Disputes

The Republic of Ghana (hereinafter referred to as “Ghana”) and the Republic of Côte d’Ivoire (hereinafter referred to as “Côte d’Ivoire”) are States with adjacent coasts bordering the Gulf of Guinea in the Atlantic Ocean. Although the two States have not delimited a maritime boundary, they have carried out hydrocarbon activities in the disputed area pending delimitation. On September 19, 2014, Ghana sent a Notification of Arbitration to Côte d’Ivoire, instituting arbitral proceedings under Annex vii to the Convention on “the dispute concerning the maritime boundary between Ghana and Côte d’Ivoire”. On December 3, 2014, a Special Agreement was concluded between the two States to submit “the dispute concerning the delimitation of their maritime boundary in the Atlantic Ocean”9 to a Special Chamber of the International Tribunal for the Law of the Sea comprised of three Judges of the itlos and two Judges ad hoc.10 In Côte d’Ivoire’s final submissions, in addition to the request for sea boundary delimitation, Côte d’Ivoire requested the Special Chamber in its no.  2 submission “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area” constitute violations of “(i) the exclusive sovereign rights of Côte d’Ivoire over its continental shelf, as delimited by this Chamber; (ii) the obligation to negotiate in good faith, pursuant to article 83, paragraph 1, of unclos and customary law; (iii) the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by article 83, paragraph 3, of unclos”.11 Here the dispute concerning interpretation or application of Article 83(3) was explicitly referred to. 9 10

11

Judgment of Ghana/​Côte d’Ivoire, supra note 4, para. 4. Ibid., paras. 3–​4. Such transfers of proceedings from Annex vii to the International Tribunal for the Law of the Sea (or a special chamber) in the past includes cases: The M/​V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, itlos Reports, 1999, para. 5; Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/​European Community), itlos Reports, 2000, para. 6 (transferred to the itlos Special Chamber); The M/​V “Virginia G” Case (Panama/​Guinea-​Bissau), Judgment, itlos Reports, 2014, para. 6; Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/​Myanmar), Judgment, itlos Reports, 2012, para. 5. Judgment of Ghana/​Côte d’Ivoire, supra note 4, para. 63.

104 Zhang The Special Chamber categorized the aforementioned submission as the submission on Ghana’s international responsibility. It has to look at the mandate of jurisdiction recorded in the Special Agreement limiting the scope of dispute: “the dispute concerning the delimitation of their maritime boundary in the Atlantic Ocean”.12 In interpreting “dispute concerning the delimitation”, the Special Chamber concedes that “concerning” may be interpreted to contain “other issues which are not part of delimitation but are closely related thereto” included into the scope of the dispute. However, the Chamber says, “it would stretch the meaning of the words ‘dispute concerning the delimitation of their maritime boundary’ too much to interpret it in such a way that it included a dispute on international responsibility”.13 The Special Chamber concludes that its jurisdiction to decide on Côte d’Ivoire’s final submission no. 2 concerning the alleged international responsibility of Ghana is not covered by the Special Agreement.14 Ultimately, by virtue of the legal principle of forum prorogatum, the Special Chamber concludes that Ghana by its conduct implicitly accepts its jurisdiction to decide on the claim of international responsibility on the merits.15 The finding that the alleged international responsibility of Ghana is not falling into “dispute concerning the delimitation of their maritime boundary” echoes with the reasoning of the tribunal in South China Sea Arbitration,16 where the tribunal was called on to examine the scope of exclusion in Article 298 with regard to some of the Philippines’ submissions. Indeed, in the South China Sea Arbitration, the Philippines in its submission no.8 also requested the tribunal to declare that China had violated the sovereign rights of the Philippines with respect to the living and non-​living resources of its exclusive economic zone and continental shelf.17 The tribunal is of the view that the alleged 12 13 14 15 16 17

Ibid., para.547. Ibid., para. 548. Ibid., para. 550. Ibid., paras. 551–​553. Judges Wolfrum and Manhsa were elected as two of the five arbitrators/​judges in the two cases. However, there is no citation of South China Sea Arbitration in Judgment of Ghana/​ Côte d’Ivoire. pca Case No. 2013–​19:  The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility (29 October 2015), available at http://​www.pcacases.com/​web/​sendAttach/​1506, paras.101, 405. The alleged violation of Philippines sovereign rights can also be found in its no.9 submission that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines”. The tribunal describes it as “a dispute concerning Chinese fishing activities in what the Philippines claims as its exclusive economic zone”. See, paras. 101, 406.

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violation of sovereign rights is not a dispute concerning maritime boundary delimitation. Therefore, its jurisdiction will not be barred by Article 298, which may be enforced by considering extraneous factors.18 Some other submissions of the Philippines (nos.3,4,5,6,7) defined by the tribunal as “reflecting dispute concerning the source of maritime entitlements”,19 are considered not to be “dispute concerning maritime boundary delimitation”.20 Accordingly, Article 298 does not limit the Tribunal’s jurisdiction.21 As such, in the view of the South China Sea tribunal, Article 298 excludes “dispute concerning sea boundary delimitation”. Now, the Ghana/​Côte d’Ivoire Chamber has found that the three responsibility issues in Côte d’Ivoire’s no.2 submission, including the dispute concerning interpretation or application of Article 83(3), cannot be the “dispute concerning the delimitation of their maritime boundary”. If one also accepts that the South China Sea tribunal is correct in interpreting Article 298(1)(a)(i) with regard to the scope of exclusion, he may conclude that the three responsibility issues will not be excluded from judicial settlement, notwithstanding a declaration duly made in pursuant to Article 298(1)(a)(i). As will be discussed immediately, the question whether a dispute concerning interpretation or application of Article 83(3) can be excluded from judicial/​ arbitral proceedings under Article 298 is a matter for debate among commentators. Moreover, the conclusion of non-​exclusion drawn from the reasoning of the above-​mentioned two cases is logically incompatible with the Commission’s finding in Timor-​Leste and The Commonwealth of Australia that such a dispute falls into compulsory conciliation under Article 298 in its Decision on Competence. Apparently, something must be wrong with the reasoning of either the Ghana/​Côte d’Ivoire Chamber or the South China Sea Arbitration tribunal. One may question that the Ghana/​Côte d’Ivoire Chamber’s approach is overly absolute, if “other issues which are not part of delimitation but are closely related thereto” may be included into the scope of the dispute, it is expected 18

19 20 21

Ibid. paras. 405, 406. (“if, however, another maritime feature claimed by China within 200 nautical miles of these areas to be an “island” for the purposes of Article 121, capable of generating an entitlement to an exclusive economic zone and continental shelf, the resulting overlap and the exclusion of boundary delimitation from the Tribunal’s jurisdiction by Article 298 would prevent the Tribunal from addressing this Submission”). Ibid., paras.169, 402. Ibid., paras. 400, 401, 402, 403, 404. The tribunal does not consider that the disputes in the three submissions to be “over maritime boundary delimitation”, see, paras. 155–​157, para.366. Ibid., paras. 400, 404.

106 Zhang that the Chamber look at the issues one by one since the three responsibility issues are distinctive and they may bear different relations to the dispute concerning delimitation of maritime boundary. What looks more problematic is the South China Sea tribunal’s interpretation of text of Article 298(1)(a)(i) with regard to the scope of exclusion. Article 298(1)(a)(i) provides that a State party may declare to exclude: [D]‌isputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex v, section 2 …(emphasis added by the author) What a State can exclude from adjudication or arbitration, according to the text of Article 298(1)(a)(i), are “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations”, rather than “dispute concerning sea boundary delimitation”.22 In the South China Sea Arbitration, the Philippines takes notes of this difference and therefore does not request the tribunal to interpret or apply one of the three specified articles.23 The Philippines avoids the submission of disputes concerning the interpretation or application of any one of paragraphs of these three specified articles, e.g., Articles 74(3) and 83(3), which, in the opinion of some commentators may fall into the scope of Article 298 exclusion of compulsory procedures entailing binding decisions.24

22

23 24

This is an issue that the present author raised in the discussion on the scope of exclusion with regard to disputes concerning the source of entitlements. See, Zhang Xinjun (张新军), (关于菲律宾南海断续线仲裁请求的管辖权问题 —​—​第298.1 (a)(i)项下的排除和海洋权利之争) [Jurisdictional Objection to the Philippines’ Submissions regarding Nine-​dash Line: Exclusion of the Dispute concerning Sources of Maritime Entitlements under unclos Article 298.1(a)(i)], 3 GUOJIFA YANJIU (国际法研究) [CHINESE REVIEW OF INTERNATIONAL LAW], 6 (2016). The South China Sea Arbitration, Jurisdictional Award, supra note 17, para.374. Robert C Beckman & Leonardo Bernard, Disputed Areas in the South China Sea: Prospects for Arbitration or Advisory Opinion, available at http://​nghiencuubiendong.vn/​en/​ datbase-​on-​south-​china-​sea-​study/​doc_​download/​275-​robert-​c-​beckman-​a-​leonardo-​ bernard-​disputed-​areas-​in-​the-​south-​china-​sea-​prospects-​for-​arbitration, p.15. (last visited Nov. 9, 2018).

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However, “disputes concerning the interpretation or application of articles 15, 74 and 83”, in the words of Article 298(1)(a)(i), is further limited to such disputes “relating to sea boundary delimitations”. It can be argued that, since Articles 74(3) and 83(3) refer to a regime regulating the Parties’ cooperation pending delimitation, it may be distinct from the process of delimitation. Thus, whether Articles 74 and 83 refer to delimitation or pre-​delimitation obligation should be decided on a case-​by-​case basis. The argument that Article 298 excludes interpretation or application of Article 74 and 83 and thereby the exclusion extends to Articles 74(3) and 83(3) would be against the object and purpose of the Convention: to promote peaceful uses of seas and oceans.25 In emphasizing “relating to sea boundary delimitations”, a commentator points out that disputes concerning the violation of Articles 74(3) and 83(3) were within the purview of disputes concerning the regulation of state conduct, which is of different nature from disputes concerning maritime delimitation. Hence the exclusion of disputes concerning the interpretation or application of Articles 74 and 83 relating to sea boundary delimitations under Article 298(1)(a)(i) should not be interpreted as covering the dispute over whether unilateral activities in the disputed area pending maritime delimitation violate Articles 74(3) and 83(3).26 Notwithstanding the conflicting views among commentators, the issue was confronted in the first case submitted to a compulsory conciliation –​the Timor-​ Leste and The Commonwealth of Australia case.27 Australia made the declaration under Article 298(1)(a)(i) on 22 March 2002.28 The Conciliation Commission finds, and Australia accepts, that Australia has consented to “submission of the matter to conciliation under Annex v, section 2”’ a logical consequence of its declaration made in accordance with Article 298(1)(a)(i) of the Convention.29 25

26

27 28 29

Center for Strategic & International Studies, Examining the South China Sea Disputes:  Papers from the Fifth Annual CSIS South China Sea Conference 70 (Murray Hiebert, Phuong Nguyen, Gregory B. Poling eds., 2015), available at, https://​csis-​prod.s3.amazonaws.com/​s3fs-​public/​legacy_​files/​files/​publication/​ 151110_​Hiebert_​ExaminingSouthChinaSea_​Web.pdf (last visited Nov. 9, 2018). Kazuhiro Nakatani (中谷和弘)，(境界未画定海域における一方的資源開発 と武力による威嚇―ガイアナ・スリナム仲裁判決を参考として、柳井俊二・村瀬信也　編　『国際法の実践─小松一郎大使追悼』)[Unilateral Exploitation of Resources and Threat of Force in Water pending Maritime Delimitation—the Guyana v. Suriname case, in PRACTICE OF INTERNATIONAL LAW—IN MEMORIAL OF AMBASSADOR KOMATSU ICHIRO 534 (Shinji Yanai & Shinya Murase eds., 2015)] Report and Recommendations, supra note 6, para.1. Conciliation between The Democratic Republic of Timor-​Leste and The Commonwealth of Australia (Timor-​Leste and The Commonwealth of Australia), Decision on Competence, available at, https://​pcacases.com/​web/​sendAttach/​1921, para.67. Ibid., para. 68.

108 Zhang Under Article298(1)(a)(i), a State having made a declaration to exclude “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations”, shall accept the submission of such disputes to compulsory conciliation subject to the conditions provided in the same article. Accordingly, the scope of disputes that can be excluded from compulsory judicial/​arbitral proceedings is the exact scope to which a Compulsory Conciliation Commission shall have jurisdiction. A Compulsory Conciliation Commission’s decision on its jurisdiction over a dispute, logically speaking, can only be made by interpreting that such a dispute has been excluded from compulsory procedures entailing binding decisions. In the hearing on competence, Timor-​Leste requests the Commission to assist Australia and Timor-​Leste to agree on appropriate transitional arrangements in the disputed areas in addition to the request for delimitation of permanent maritime boundaries, to bring the Parties from their current temporary arrangements to the full implementation of their newly agreed permanent maritime boundary.30 Australia objects that Timor-​Leste attempts to include issues that are “outside the notification by Timor-​Leste which commenced the proceedings” and “outside Article 298 of unclos, because they do not concern the matters in that article”.31 The Conciliation Commission opines that Article 298, on its own terms, requires Australia to accept submission of disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations to conciliation under Annex v.32 The Conciliation Commission goes on to have four paragraphs of Articles 74 and 83 fully exhibited. It turns out that they address not only the actual delimitation of the sea boundary between States with opposite or adjacent coasts, but also the question of transitional arrangements pending a final delimitation.33 The Commission does not, therefore, see that Timor-​Leste’s request that the Commission also consider transitional arrangements lies outside the scope of Articles 74 and 83 or, correspondingly, of Article 298(1)(a)(i).34 The Commission thus does not consider that the matters raised by Timor-​Leste fall beyond the scope of Article 298.35 The question of transitional arrangements pending a final delimitation, by virtue of being a component of Articles 74(3) and 83(3), falls into the 30 31 32 33 34 35

Ibid., para. 93. Ibid., para. 94. (quoting Competence Hearing Tr. (Final) 70:10–​13.) Ibid., para. 95. Ibid., para. 97. Ibid., para. 97. Ibid., para. 99.

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jurisdiction of compulsory conciliation only upon the exclusion from compulsory judicial/​arbitral proceedings. This decision on the scope of the dispute falling into the jurisdiction of compulsory conciliation, in turn, determines the scope of disputes concerning the interpretation or application of Articles 74 and 83 relating to sea boundary delimitations that can be excluded from judicial/​arbitral proceedings. Apparently, Articles 74(3) and 83(3) not only address the transitional arrangement provided in the first half of the paragraph, but also in its second half of the paragraph that sets out the obligation “not to jeopardize or hamper the reaching of the final agreement”, which, according to the reasoning of the Commission, will inevitably fall within the jurisdiction of compulsory conciliation and is doomed to be excluded from judicial/​arbitral proceedings by a State making declaration under Article 298(1)(a)(i). iii

Unilateral Hydrocarbon Activities Pending Delimitation and Violation of Article 83(3) of the Convention

In the Ghana/​Côte d’Ivoire case, Côte d’Ivoire alleges that, pending delimitation, Ghana’s unilateral hydrocarbon activities in the disputed areas constitute several violations of the Convention and give rise to state responsibility. The first is the alleged violation of Sovereign Rights. The Special Chamber is of the view that Ghana “was or should have been aware” that at least some of its hydrocarbon activities (ten field since 2009) were taking place in an area also claimed by Côte d’Ivoire.36 Even to these rather limited activities, the Chamber is of the view that, since a delimitation decision has a constitutive nature and cannot be taken as merely declaratory,37 activities undertaken by a State in an area of the continental shelf which has been attributed to another State by an international Judgment cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out before the Judgment was delivered and if the area concerned was the subject of claims made in good faith by both States.38 On the basis of the foregoing, the Special Chamber finds the argument advanced by Côte d’Ivoire that the hydrocarbon activities carried out by Ghana in the disputed area constitute a violation of Côte d’Ivoire’s sovereign rights has not been substantiated.39 36 37 38 39

Judgment of Ghana/​Côte d’Ivoire, supra note 4, paras. 587, 588. (ten field borders the blocks for mineral resource activities licensed by Côte d’Ivoire and is situated in all the maritime areas which Côte d’Ivoire had qualified as being disputed.) Ibid., para. 591. Ibid., para. 592. Ibid., para. 594.

110 Zhang The other two violations concern interpretation of Article 83, which provides: 1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. … 3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. As to the alleged violation of Article 83(1), the Special Chamber is of the view that the obligation to negotiate in good faith is an obligation of conduct and not one of result and that a violation of this obligation cannot be based only upon the result expected by one side not being achieved.40 The Special Chamber further notices that negotiations have taken place between Ghana and Côte d’Ivoire over six years, and that Côte d’Ivoire has not produced any convincing arguments that these negotiations were not meaningful.41 In conclusion, since Côte d’Ivoire has not convincingly substantiated that Ghana did not negotiate in good faith, the Special Chamber accordingly dismisses this claim for international responsibility on the basis of a violation of Article 83, paragraph 1, of the Convention.42 Now it comes to the violation of Article 83(3) of the Convention. The Special Chamber notes that Article 83(3) of the Convention contains two interlinked obligations for the States concerned, namely to “make every effort to enter into provisional arrangements of a practical nature” and “during this transitional period, not to jeopardize or hamper the reaching of the final agreement”.43 The first obligation is an obligation of conduct; it does not amount to an obligation to reach an agreement on provisional arrangements. However, the parties concerned are under a duty to act in good faith and “in a spirit of understanding and cooperation”.44 As far as the case before it is concerned, the Special Chamber notes that Côte d’Ivoire did not ask Ghana to enter into 40 41 42 43 44

Ibid., para. 604. Ibid. Ibid., para. 605. Ibid., para. 626. Ibid., para. 627.

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provisional arrangements. Instead, Côte d’Ivoire only asked Ghana to refrain from continuing its hydrocarbon activities. Thus, Côte d’Ivoire did not substantiate its claim that Ghana did not act in good faith.45 The second obligation, the obligation “not to jeopardize or hamper the reaching of the final agreement”, should be interpreted by taking account of Article 83(3) of the Convention as a whole. Given that reading, the obligation “not to jeopardize or hamper the reaching of the final agreement” shall embody “a spirit of understanding and cooperation” and be subject to the obligation of conduct to “make every effort”.46 As Article 83(3) covers two situations in this transitional period, the obligations States encounter in respect of a disputed area for which no provisional arrangement exists are described by the words “not to jeopardize or hamper the reaching of the final agreement”.47 For the following reasons, the Special Chamber reaches the conclusion that Ghana did not violate the second obligation. First, after the Special Chamber ordered provisional measures, Ghana did not carry out new drilling. It would, however, have been preferable if Ghana had adhered to the request of Côte d’Ivoire earlier to suspend its activities.48 Second, Ghana has undertaken hydrocarbon activities only in an area attributed to it. In light of paragraph 2 (iii) of the final submissions of Côte d’Ivoire, which reads: “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constitute a violation of … the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by article 83, paragraph 3, of unclos”, the Special Chamber cannot make such declaration, since Ghana’s activities did not take place in the Ivorian maritime area.49 The Special Chamber’s interpretation of the second obligation diverges from the reasoning as well as the decision on the matter in the Award of Guyana/​Suriname. In that case, the arbitral tribunal distinguishes those activities that lead to permanent physical changes to the marine environment, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration. It notes that unilateral acts that cause physical change, as they may hamper or jeopardize the reaching of a final agreement on delimitation, would

45

46 47 48 49

Ibid., para. 628. (It would have been for Côte d’Ivoire to propose the establishment of “provisional arrangements of a practical nature” and thus to trigger the requisite negotiations. It is thereby possible to assess factually whether Ghana fulfil its obligation to negotiate in good faith.) Ibid., para. 629. Ibid., para. 630. Ibid., para. 632. Ibid., para. 633.

112 Zhang have to be undertaken pursuant to an agreement between the parties to be permissible.50 The tribunal finds such distinction being made consistent with the legal principle applied in the regime of provisional measures. The criteria for assessing a request for provisional measures guide the tribunal’s analysis of whether an activity constitutes a violation of the obligations under 83(3) of the Convention.51 The major finding and conclusion of the tribunal is that Guyana’s drilling activities in the disputed area pending maritime delimitation cause physical changes, and thereby are perceived as “hampering and jeopardizing the reaching of a final agreement”.52 In contrast, seismic activity is permissible in the disputed area pending maritime delimitation.53 The distinction is made in considering the threshold for the application of the second obligation of Article 83(3), by analogy to the threshold for indication of provisional measures. The Arbitral Tribunal concedes that the analogy merely serves as a guideline on the interpretation of the former.54 At any rate, this distinction is important but “acts that do cause physical change” are not determinant in deciding violation of the second obligation, as the tribunal in its own words describes that such acts “may hamper or jeopardize the reaching of a final agreement on delimitation”.55 (emphasis added by the author) Judge Paik Jin-​Hyunin in his Separate Opinion in the Ghana/​Côte d’Ivoire case also points out that provisional measures and the obligation “not to jeopardize or hamper the reaching of the final agreement” have different legal functions. Therefore, it is not guaranteed that criteria for the former can be applied by analogy to the latter.56 Judge Paik regrets that, although the instant case provides the Special Chamber with an opportunity to clarify the meaning of the obligation “not to jeopardize or hamper the reaching of the final agreement”, the Special Chamber failed to apply deserved scrutiny.57 According to Judge Paik, Ghana violates its obligation pursuant to Article 83(3) of the Convention to make every effort, in a spirit of understanding and co-​operation, not 50 51 52 53 54 55 56

57

Guyana v. Suriname, Award of September 17, 2007, supra note 8, para. 467. Ibid., paras. 468, 469. Ibid., para. 480. Ibid., para. 481. (Both parties undertook seismic testing in the disputed area and did not give rise to objections from either side.) Ibid., para. 467. Ibid., paras. 467, 480. Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/​Côte d’Ivoire), Separate opinion of Judge Paik, available at, https://​www.itlos.org/​fileadmin/​itlos/​documents/​cases/​case_​no.23_​merits/​C23_​ Judgment_​23.09.2017_​SepOp_​Paik_​orig.pdf, para. 9. Ibid., para. 3.

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to jeopardize or hamper the reaching of the final agreement.58 However, he has to reject this submission and votes in favour of the Special Chamber’s Judgment, strictly because the activities undertaken by Ghana did not take place in the Ivorian maritime area but in an area attributed to Ghana (emphasis added by Judge Paik).59 In the view of Judge Paik, it would be inane to identify “in general and in the abstract what are permissible activities and what are not”.60 While highly invasive activities (that cause a permanent physical change to the marine environment) would likely prejudice the reaching of the final agreement, less invasive activities could do the same. A  permanent physical change to the marine environment may be considered as one of several relevant factors but should not be applied as a hard and fast rule.61 Instead, several factors, namely type, nature, location, and time of acts, may be considered and balanced in the framework of relations between the States.62 Judge Paik goes on to examine Ghana’s hydrocarbon activities by considering these factors in the framework of bilateral relations. In the instant case, drilling operations took place very close to the “customary equidistance boundary” claimed by Ghana. The ten field straddles the provisional equidistance line drawn either by Côte d’Ivoire or by Ghana.63 When Côte d’Ivoire made a concrete proposal for the boundary using the geographical meridian in 2009, the existence of a dispute and the location of the disputed area were, and should have been, clear to Ghana. However, Ghana continued its activities.64 Thus, Ghana’s unilateral hydrocarbon activities (highly invasive activities) carried out in the disputed area close to the “customary equidistance boundary” since 2009 is a violation of its obligation under article 83, paragraph 3, of the Convention to make every effort, in a spirit of understanding and co-​operation, not to jeopardize or hamper the reaching of the final agreement.65 Now, Judge Paik’s opinion limits location and time of the invasive activities for accusing violation of the second obligation. The location will be further limited within “disputed area” where two States can lay overlapping claim,

58 59 60 61 62 63 64 65

Ibid., para. 16. Ibid., para. 1. Ibid., para. 7. Ibid. Ibid., para. 10. Ibid., para. 11. Ibid., paras. 14. Ibid., para. 16.

114 Zhang which is widely accepted as legitimate for the accusation of such violations.66 It rejects the opinion that there is no geographical limit to the obligation “not to jeopardize or hamper the reaching of the final agreement”.67 Judge Paik’s opinion is certainly warranted. Assuming that the coasts of two States are 200 nautical miles away from each other, it is absurd to assert that a State’s hydrocarbon activities which occurred at the distance of 13 nautical miles from its coast, though by their very nature invasive and within a disputed area, will constitute a violation of the second obligation of Article 83(3). The Special Chamber itself is of the view that Ghana’s activities carried out since 2009 in the ten field adjacent to Côte d’Ivoire’s licensed oil concession blocks, which Ghana “was or should have been aware” that they were taking place in an area also claimed by Côte d’Ivoire, trigger the alleged violation of Côte d’Ivoire’s sovereign rights.68 With regard to violation of the second obligation of Article 83(3), Judge Paik in his Separate Opinion takes note that the same activities occurred in the same location and since the same time, and therefore the dispute on which “were, and should have been, clear” to Ghana.69 Since Ghana continued such activities, it violates the obligation under article 83, paragraph 3. Both of the alleged violations occur in an area obviously smaller than the area which is subjected to overlapping claims made in good faith by both States (disputed area). iv

Conclusion

Like paragraph 1 of Article 74 and Article 83 of the Convention on delimitation for “an equitable solution”, clarification of the obligations of the States under paragraph 3 awaits accumulation of international decisions. The alleged violation of Article 83(3) by a State’s unilateral hydrocarbon activities have so far been submitted to an Annex vii arbitral tribunal (Guyana v. Suriname) and a Special Chamber of itlos (Ghana/​Côte d’Ivoire) for consideration. Neither of them involves consideration of a jurisdictional 66 67

68 69

Yoshifumi Tanaka, Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/​Côte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS, 46 Ocean Dev. & Int’l L. 315, 316 (2015). The British Institute of International and Comparative Law, Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (2016), http://​www.biicl.org/​ undelimited-​maritime-​area (last visited Mar. 30, 2017), p. 31. Judgment of Ghana/​Côte d’Ivoire, supra note 4, paras. 587, 588. Separate pinion of Judge Paik, supra note 56, paras. 14.

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objection that may be raised by invoking a declaration under Article 298. However, according to the Decision on Competence in the Timor-​Leste and The Commonwealth of Australia case, it is more likely that a compulsory conciliation commission will be the only compulsory venue for any claims of such violations to be submitted when a State has made a declaration under Article 298, though it is less meaningful for such a submission simultaneously made with a request for a recommendation for sea boundary delimitation in the same proceedings. In the finding on the merits, the Guyana v. Suriname tribunal takes the nature of the unilateral activities as a factor necessarily linked to the decision on the violation of the obligation “not to jeopardize or hamper the reaching of the final agreement” in the second half of Article 83(3), insofar as they occur in the disputed area, both sides can lay overlapping claims. Guyana’s hydrocarbon activities bringing about physical changes, led to the finding of its violation. In Ghana/​Côte d’Ivoire, the nature of Ghana’s hydrocarbon activities (resulting in physical change) is no longer decisive and the Special Chamber does not find such a violation merely by the occurrence of such activities. In Ghana/​Côte d’Ivoire, Judge Paik’s consideration of location and time, apart from the nature and type of the activities, in assessing whether unilateral hydrocarbon activities would violate the second obligation of Article 83(3) is certainly warranted. It is exactly because of the existence of highly invasive activities that Judge Paik further considers the time and geographic location of such activities. He finally comes to the conclusion that Ghana’s hydrocarbon activities (resulting in physical change) near its alleged customary boundary since 2009 constituted a violation of the second obligation. In doing so, the violation can be substantiated not only by the nature of the activities, but also by a more restricted area within the disputed area where the activities occurred, as well as the time of such activities. In Judge Paik’s framework of assessment, by introducing a consideration of subjective element (disputes “were, and should have been” clear to Ghana), the allegation of violation is to be further restricted by considering the time and location of the unilateral hydrocarbon activities. The subjective element (“was or should have been aware”) can also be found in the Special Chamber’s reasoning on the question of whether Ghana’s unilateral activities pending delimitation violate Côte d’Ivoire’s sovereign rights. There is no indication that either Judge Paik or the Special Chamber intends to introduce a subjective element into the current regime of state responsibility which adopts objective responsibility. However, when determining the violation at the level of primary rules, subjective elements (such as due diligence)

116 Zhang are not entirely meaningless. For pre-​delimitation obligations, it is impossible not to consider the subjective element of the actor.70 The introduction of subjective elements into the evaluation of various pre-​ delimitation obligations indicates a need of balance to the consideration of the interest of the States in pursuing economic development in a disputed area pending delimitation. In Guyana v. Suriname, the tribunal explicitly states that the interpretation of the obligation to make every effort not to hamper or jeopardize the reaching of a final agreement must reflect this delicate balance.71 In the Ghana/​Côte d’Ivoire case, an important reason for the Special Chamber’s not finding Ghana in violation of the second obligation is that Ghana did not carry out new drilling after the Special Chamber ordered provisional measures.72 Decision on this substantive obligation can be seen as a continuation of the Special Chamber’s avoiding economic loss to existing developments and preserving the right to engage in development at the same time when it ordered provisional measures. The Special Chamber’s approach in ordering provisional measures is thought to have departed from the approach of the Arbitral Tribunal in the Guyana v. Suriname case, and raises concern that States may use this as a legitimate cause for unilateral development activities in the disputed area.73 It is foreseeable that in deciding on violation of the obligation to “make every effort … not to jeopardize or hamper the reaching of the final agreement” by unilateral hydrocarbon activities, a tribunal will most likely undergo a comprehensive assessment by taking into account the nature as well as the location and time of the activities. This approach is friendly to the tribunals in considering the balance of the interests of the States and also creates flexibility in interpretation or application of Article 83(3). 70

71 72 73

For subjectivity in the assessment of the obligation “not to jeopardize or hamper the reaching of the final agreement”, See Van Logchem, The Scope for Unilateralism in Disputed Maritime Areas, in The Limits of Maritime Jurisdiction 186 (Clive H. Schofield, Seokwoo Lee & Moon-​Sang Kwon eds., 2014). Guyana v. Suriname, Award of September 17, 2007, supra note 8, para. 470. Judgment of Ghana/​Côte d’Ivoire, supra note 4, para. 632. Yoshifumi Tanaka, Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas: A Note on the Ghana/​Côte d’Ivoire Order of 25 April 2015 before the Special Chamber of ITLOS, 46 Ocean Dev. & Int’l L. 315, 327 (2015).

pa rt 2 Protection and Preservation of the Marine Environment

∵

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Candy and Poisons: Protecting Marine Environments While Meeting Societal Needs Daniel Rittschof* Abstract Our world is culture, technology, biology, economics, politics and finite resources. Technology based on fossil fuels produces candy as well as poisons and enables huge human populations which directly and indirectly destroy marine environments. Technology, in the context of modern society also provides the only way forward. However, policies and goals need to change if technology is to provide that way forward. Meeting immediate societal needs as cheaply as possible is unsustainable as it depletes resources and pollutes. Food production depends on turning limited resources into fertilizer, growing plants and converting them into human food. Excess fertilizer and waste damage fresh and marine environments reducing useful productivity. Microbes, including pathogens, thrive on waste, exacerbate algal blooms which use up the oxygen in water and make dead zones killing fish and shellfish. We are running out of sources of chemicals for synthetic fertilizer. We are promoting pathogen contamination of surface and ground water threatening human health and food security. Developing technology that removes poisons, converts waste into clean water for drinking and recharging aquifers and producing fertilizer for growing food is a necessary next step to meet demands for food and to help restore marine environments. unclos has the structure to address these concerns.

Keywords marine pollution –​United Nations Convention on the Law of the Sea –​dead zones –​ algal blooms  –​hog waste  –​human waste  –​waste stream recovery  –​sterile liquid fertilizer –​anaerobic waste digestion

* N.L. Christensen Distinguished Professor, Nicholas School, Duke University; Duke University Marine Laboratory. PowerPoint available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​ files/​beijing-​rittschof.pdf; [email protected].

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_009

120 Rittschof

Man’s Niche

When I attended the unclos conference to present on Marine Pollution, I had no idea of the extent of the unclos signatories obligations to address and remediate marine pollution.1 This paper is a synthesis of what I call mostly settled science, most at least 50 years old, as it relates to marine pollution. Limited time forced me to pick just one major kind of pollution, that due to humans and their agriculture. The intent is to provide a scientific context for those interested in the law of the sea and implementation of unclos. As an academic, the potential consequences to society and food security are intriguing, timely and important. Of all animals, man’s niche, the living space related to the species, is unique in its breadth, range, and especially the extent of use of fire in the form of renewables, fossil fuels, hydroelectric and nuclear power to generate a vast technology. Now with most countries recognizing the need to reduce green-​ house gas emissions to slow down global warming and climate change, novel technologies have been developed to add wind and solar power alternatives. Green-​house gasses with accompanying global warming, climate change and ocean acidification are unintended consequences of energy generation.2 I will not consider the contributions of energy production to marine pollution further. I will consider the direct unintended consequences of the technologies that our ability to use energy enable. Of importance to our conversation is pollution due to wastes generated by our enormous and continuously increasing human population and waste generated producing food for that population. Anthropogenic marine pollution can be grouped into two overlapping categories: 1. toxic pollution, poisons, like heavy metals and a multitude of organic toxins generated during most of our manufacturing processes, refractory pharmaceuticals and toxic byproducts such as those associated with mining, plastics, rubbers and electronics; and 2. nutrient pollution, candy, from fertilizers, agricultural waste especially from industrial meat production like chicken, pork and beef and waste produced by billions of people. Industrialized societies, responsive to human and environmental health and human quality of life concerns are slowly identifying very toxic compounds and

1 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. articles 194, 196, 200, 204, 206, 235. 2 https://​www.unglobalcompact.org/​what-​is-​gc/​our-​work/​environment/​climate.

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limiting their entry into environments. However, only the very richest small nation states, e.g. Singapore, are beginning to seriously address nutrient pollution and then only for human waste. Because water runs downhill, our coastal oceans are soups of thousands of acutely and chronically toxic chemicals and excess nutrients. This soup is a major food source for microbes and is in locations of commercial food production and recreational activity. Societal concern from this pollution succinctly stated are: human health, environmental health, and food security. Marine pollution has impacts which are analogous to the consequences of global warming. Natural phenomena are exaggerated in impact due to added energy input. For global warming weather events become more extreme. Winds blow harder, rainfall is higher, droughts are more extreme, and fires burn hotter. With marine pollution, natural phenomena like algal blooms become more extreme and frequent. These more extreme events are recognized as green tides, red tides and harmful algal blooms. Algal blooms result in fish kills and “dead zones”. A dead zone is an estuarine or marine region with reduced to depleted oxygen due to oxygen consumption by bacteria. Low oxygen results in vast areas where other organisms cannot survive. There are now thousands of locations around the world which routinely experience harmful algal blooms and dead zones.3 Two of the most notable are dead zones off the Mississippi River in the gulf of Mexico and in the Yellow Sea off the port and industrial hub Quingdao, China.4 Nutrients from the United States agricultural heartland and all the communities in the Mississippi River drainage contribute to annual algal blooms and a large dead zone in the Gulf of Mexico. Similarly, five rivers drain into the coastal ocean around Quingdao and deliver nutrients from over nine million people and surrounding agriculture.5 Each of these large dead zones can reach over 11,000 square miles, roughly 20 times the size of the nation of Singapore. Marine pollution is studied globally but remediation is generally ignored.  In instances where it is not ignored, for example the dead zone in the Gulf of Mexico, remediation goals are a fantasy.6 3 https://​www.theguardian.com/​environment/​2018/​jan/​04/​oceans-​suffocating-​dead-​zones-​ oxygen-​starved. 4 Gulf of Mexico ‘dead zone’ is the largest ever measured, Nat’l Oceanic And Atmospheric Admin. (Aug. 2, 2017), https://​www.noaa.gov/​media-​release/​gulf-​of-​mexico-​dead-​zone-​ is-​largest-​ever-​measured; Largest-​Ever Algae Bloom Hits China,  DNews  (July 5, 2013, 10:30 AM),  https://​www.seeker.com/​largest-​ever-​algae-​bloom-​hits-​china-​1767639532.html; Fred Pearce, Algal blooms endangering China’s seas, China Dialogue Ocean (June 1, 2018), https://​chinadialogueocean.net/​2959-​algal-​blooms-​are-​starving-​chinas-​seas-​of-​oxygen/​. 5 https://​chinadialogueocean.net/​2959-​algal-​blooms-​are-​starving-​chinas-​seas-​of-​oxygen/​. 6 See generally, Gulf of Mexico Dead Zone, The Nature Conservancy, https://​www.nature.org/​ en-​us/​about-​us/​where-​we-​work/​priority-​landscapes/​gulf-​of-​mexico/​stories-​in-​the-​gulf-​of-​ mexico/​gulf-​of-​mexico-​dead-​zone/​ (discussion of dead zone with remediation goals).

122 Rittschof The only times that remediation goals have been met since 1985 have been in years of extreme drought which dramatically reduce the discharge of Mississippi River water into the Gulf of Mexico.7 Within this context, what can society do to remediate at least some of this well documented and exhaustively studied marine pollution? The following is my thought process and why I think the first target should be nutrient pollution. Though I am a marine researcher, the idea that we should study harmful algal blooms and other blooms in general is not a high priority. Although we need to monitor decline of the blooms in target areas, resources should be spent on waste treatment and associated infrastructure to capture nutrients and convert them back to fertilizer that can be efficiently transported and applied to crops. We know for example that the phosphate component of commercial fertilizer with about 75% of its reserves in Morocco could become a politically or economically limiting component of commercial chemical fertilizers.8 If we start now with capturing and recycling candy, nutrients, we could dramatically reduce the demand for and use of chemical fertilizers. Two major global sources of nutrient pollution are people and hogs. For perspective, one hog produces the nutrient waste of ten people.9 If we captured just hog nutrients from the top seven global hog producers10 this would be equivalent to the waste of 6.6 billion people. If populated countries used the same technology for its people that would account for over 2.4 billion people. The waste of approximately nine billion people is a staggering amount of raw material for generation of fertilizer for the world’s crops. If we could capture the nutrients instead of delivering them to groundwater and streams and coastal oceans, we would dramatically improve food safety and with care human and environmental health.

7

8 9 10

https://​ w ww.google.com/​ i mgres?imgurl=http://​ e n.es-​ s tatic.us/​ u pl/​ 2 015/​ 0 8/​ d e a d - ​ z o n e - ​ g u l f - ​ n o a a - ​ 5 8 0 . j p g & i m g r e f u r l = h t t p s : / / ​ e a r t h s k y. o r g /​ e a r t h / ​ l a r g e - ​ 2 0 1 5 - ​ g u l f - ​ o f - ​ m e x i c o - ​ d e a d - ​ z o n e & h = 3 6 1 & w = 5 8 0 &​ t b n i d = 4 9 Z G S b x r g 9 u b L M : & q = g u l f + o f + m e x i c o + d e a d + z o n e +​ s i z e ​ & t b n h = 1 3 7 & t b n w = 2 2 0 & u s g = A I 4 _ ​ - ​ k Q s 3 s o Q E T S S ​ V t M E 9 0 ​ g v c i​ U 2 X 8 z Yw w & v e t = 1 2 a h U K E w j 1 x p _ ​ N 6 _ ​ Te A h V I s l M K H R 2 - ​ A D YQ 9 Q E w A​ HoECAYQBg..i&docid=7kB0CmfH96MLLM&sa=X&ved=2ahUKEwj1xp_​ N 6_​ TeAhVIslMKHR2-​ADYQ9QEwAHoECAYQBg. https://​pdf.usaid.gov/​pdf_​docs/​Pnadw835.PDF; http://​www.thecropsite.com/​articles/​ 1621/​world-​reserves-​of-​phosphate-​rock-​dynamic-​unfolding-​story/​. https:// ​ b logs.commons.georgetown.edu/​ c ctp-​ 6 38-​ y y326/ ​ c laims- ​ a nd- ​ f acts/ ​ a - ​ h og-​ produces-​as-​much-​as-​waste-​as-​a-​human/​. https://​www.nationalhogfarmer.com/​hog/​competition-​supply-​world-​pork-​heating.

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Knowing little about unclos I  was surprised to discover that there are sections of the agreement that obligate signatories to address and remediate marine pollution. It is clear that even the most responsive of the signatories, for example, Singapore, is violating the spirit of the treaty. Marine pollution is ignored and studied globally. In instances where it is not ignored, for example the dead zone in the Gulf of Mexico, remediation goals are a fantasy. However, just as there are extreme monetary consequences to failing to address global warming, sea level rise and climate change,11 there are similar consequences that will impact, food security, human health and environmental health.

The Way Forward

If the world is to continue to support billions of people and feed them, then technological solutions are required. The immediate target is conversion of human and animal waste to clean water and fertilizer. Components of the technology required to generate safe fertilizer from human and animal waste were developed in the last 70 years.12 Many places in the world use parts of the technology to generate fresh water by desalination. Singapore converts human waste to a small volume of solid waste and water that can be used in the silicon wafer industry and that can be returned to reservoirs for remineralization. One attractive component of the anaerobic digestion technology is the capture of methane that can be used to the sterilize nutrient rich effluent13 which can be separated into clean water and a nascent fertilizer by reverse osmosis. The ability to decentralize the processes into free standing manageable units enables minimizing infrastructure by targeting individual commercial hog production and towns lacking sophisticated infrastructure. Decentralization

11 https://​nca2018.globalchange.gov/​. 12 Sourirajan, S.  1970 Reverse Osmosis. 580  pp. Logos Press Ltd. London, UK. isbn:  0236308386; A.  A. Forbis-​ Stokes. 2017. Anaerobic Digestion Pasteurization Latrine –​Self-​sustaining Onsite Fecal Sludge Treatment for Developing Countries. Ph.D. Thesis, Department of Civil & Environmental Engineering. Pratt School of Engineering, Duke University, Durham NC usa 146  pp.; L.  F. Greenlee, D.  F. Lawler, B.  D. Freeman, B.  Marrot, P.  Moulin. (2009) “Reverse osmosis desalination:  Water sources, technology, and today’s challenges.,” Water Research 43:2317–​2348.; https://​www.pub.gov.sg/​ watersupply/​fournationaltaps/​newater. 13 A. A. Forbis-​Stokes. 2017. Anaerobic Digestion Pasteurization Latrine, supra note 12.

124 Rittschof spreads the risk associated with catastrophic events and enables local management. The country that takes the lead and provides resources to link the existing technologies together and finish the final steps in the process will become a global leader in sale and distribution of the technology. The foregoing has been the case for solar technology. In the very near future, the recycling of waste into pathogen free fresh water, the raw material for fertilizer and a small but substantial amount of energy will become economically viable as societies recognize human and environmental health concerns and increasing costs of food production. unclos provides the policy framework for signatories to begin the process.14 14

Supra, note 1, articles 235, 263, 300, 304.

­c hapter 6

The Duty to Cooperate in the Protection and Preservation of the Marine Environment Chie Kojima* Abstract International courts and tribunals increasingly refer to the importance of the duty to cooperate in the protection and preservation of the marine environment, as in the mox Plant case, Land Reclamation case, Advisory Opinion on iuu fishing, and South China Sea Arbitration. How a State can fulfill this duty to cooperate, however, remains unclear. This paper examines the nature and content of the duty to cooperate under the United Nations Convention on the Law of the Sea namely the duty to negotiate or consult in good faith and the duty to cooperate through global, regional or subregional organizations.

Keywords marine environment –​environmental law –​marine pollution –​fish stocks agreement –​ whaling in the Antarctic case –​due regard –​mox Plant Case

i

Introduction

International courts and tribunals increasingly refer to the importance of the duty to cooperate in the protection and preservation of the marine environment, as reiterated in the recent South China Sea Arbitral Award. While the duty to cooperate is regarded as a well-​recognized principle in the protection of the marine environment, how a State can fulfill this duty is unclear. Different opinions exist especially in relation to the scope of application of the duty * Professor of International Law, Faculty of Law, Chuo University, Tokyo, Japan; Ph.D. (Chuo), LL.M. (Yale) and J.S.D. (Yale). The author would like to thank Mr. Julian Hinz for reviewing this paper. The author’s PowerPoint is available at https://​colp.virginia.edu/​sites/​ colp.virginia.edu/​files/​beijing-​kojima.pdf.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_010

126 Kojima to cooperate through global, regional and subregional organizations, which is stipulated in a number of provisions of the United Nations Convention on the Law of the Sea (unclos).1 This paper examines the nature and content of the duty to cooperate under the law of the sea, namely the duty to negotiate in good faith and the duty to cooperate through global, regional or subregional organizations, in the light of recent judgments of the international courts and tribunals. It also discusses the implications of the duty to cooperate to the protection and preservation of the marine environment in the Asia-​Pacific region. ii

Duty to Cooperate in International Environmental Law

The term “cooperation” has never been defined in any international treaty or resolution of an international organization.2 It generally means “the action of co-​ operating […] of working together towards the same end, purpose, or effect”.3 When cooperation becomes a duty, it means “the obligation to enter into […] coordinated action so as to achieve a specific goal”.4 As stated in the Nuclear Tests case, “[t]‌rust and confidence are inherent in international co-​operation”5 and, therefore, the element of good faith is inevitable when cooperation becomes a duty. The duty to cooperate does not oblige a State to ensure a particular result, but it simply calls for the performance of a particular act, a coordinated or joint action.6 The importance of cooperation in preventing, reducing and eliminating adverse environmental effects and in conserving, protecting and restoring shared natural resources is recognized in a number of international environmental instruments, including Principle 24 of the Stockholm Declaration7

1 2 3 4 5 6

7

United Nations Convention on the Law of the Sea, adopted 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) [unclos]. Wolfrum, R., ‘Cooperation, International Law of’, in: Rüdiger Wolfrum (ed.) Max Planck Encyclopedia of Public International Law Vol. ii (Oxford University Press, 2012), para. 2. Oxford English Dictionary—​Online edition (www.oed.com), accessed 15 November 2018. Wolfrum, supra note 2, para. 2. Nuclear Tests (Australia v. France), Judgment, i.c.j. Reports 1974, p. 253 at p. 269, para. 46. For the distinction between the obligation of result and obligation of conduct, see Wolfrum, R., ‘Obligation of Result Versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligations’, in: Arsanjani, Cogan, Sloane, Wiessner (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, Leiden/​Boston: Brill/​Nijhoff, 2010. Principle 24 of the Stockholm Declaration reads: “Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control,

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and Principle 7 of the Rio Declaration.8 A number of environmental agreements, both bilateral and multilateral, rely on the duty to cooperate to achieve the common goal of protecting the environment.9 Cooperative obligations play an important role in environmental treaties whose main purpose is to control and minimize adverse environmental effects before damage arises. Cooperative obligations can promote interaction among States to address environmental concerns at an early stage, which in turn prevents conflicts from arising.10 The duty to cooperate is applied in the form of procedural obligations, such as duties to notify, consult and negotiate.11 In the Gabčíkovo-​Nagymaros Project case, the International Court of Justice (icj) recognized that the parties were expected to “discuss in good faith actual and potential environmental risks” in the implementation of the relevant bilateral treaty.12 The icj also recognized in the Pulp Mills on the River Uruguay case, that “it is by co-​operating that the States concerned can jointly manage the risks of damage to the environment”.13 The icj further stated that “[t]‌he obligation to notify is […] an essential part of the process leading the parties to consult in order to assess the risks of the plan and to negotiate possible changes which may eliminate those

8 9

10 11

12 13

prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States”. Principle 7 of the Rio Declaration reads: “States shall co-​operate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem”. For example, Article 4 of the United Nations Framework Convention on Climate Change provides the obligations of Parties to cooperate in the development, application and diffusion of technologies that control, reduce or prevent anthropogenic emissions of greenhouse gases (Art. 4(1)(c)) and to cooperate in preparing for adaptation to the impacts of climate change (Art. 4(1)(e)). Hutchison, C., ‘Coming in from the Shadow of the Law:  The Use of Law by States to Negotiate International Environmental Disputes in Good Faith’, 43 Canadian Yearbook of International Law, 2005, p. 101, at pp.107–​108. Id. at p. 107; Craik, N., The International Law of Environmental Impact Assessment: Process, Substance and Integration (Cambridge, Cambridge University Press, 2008), pp.  68–​72. The importance of procedural obligations is also recognized in Principle 19 of the Rio Declaration, which states: “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith”. Gabčíkovo-​Nagymaros Project (Hungary/​Slovakia), Judgment, i.c.j. Reports 1997, p.  7, p. 68, para. 112. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, icj Reports 2010, p. 14, p. 49, para. 77.

128 Kojima risks or minimize their effects”14 and that “the mechanism for co-​operation between States is governed by the principle of good faith”15 as reflected in Article 26 of the 1969 Vienna Convention on the Law of Treaties.16 The icj however recalled that “an obligation to negotiate does not imply an obligation to reach an agreement”.17 The icj also recognized the duty to notify and consult in good faith as a due diligence obligation.18 iii

Duty to Cooperate in the Protection and Preservation of the Law of the Sea

The Law of the Sea Convention develops through provisions that stipulate the duty to cooperate in the protection and preservation of the marine environment. More specifically, the duty to cooperate functions both in the conservation and management of marine living resources and in the prevention, reduction and control of marine pollution. The duty plays a role not only in making rules and standards but also in fulfilling the obligations set forth by unclos. Article 197 on cooperation requires States to cooperate on a global or regional basis, “directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures” consistent with unclos, “taking into account characteristic regional features”. The “good faith” obligation under Article 300 of unlcos applies when its States Parties fulfill the duty to cooperate. The international courts and tribunals confirmed that the duty to cooperate is “a fundamental principle in the prevention of pollution of the marine environment under Part xii of the Convention [unclos] and general international law” in the mox Plant case,19 in the Land Reclamation case,20 in the 14 15 16 17 18 19 20

Id. para. 115. Id. para. 145. Vienna Convention on the Law of Treaties, adopted 23 May 1969, 1155 UNTS (entered into force 27 January 1980) [vclt]. Article 26 vclt stipulates: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”. Pulp Mills on the River Uruguay, supra note 13, p.  68, para. 150, citing Railway Traffic between Lithuania and Poland, Advisory Opinion, 1931, p.c.i.j., Series A/​B, No. 42, p. 116. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgement, i.c.j. Reports 2015, p. 665, p. 707, para. 104. mox Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, itlos Reports 2001, p. 95, p. 110, para. 82. Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, itlos Reports 2003, p. 10, p. 25, para. 92.

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Request for Advisory Opinion submitted by the Sub-​Regional Fisheries Commission (srfc),21 and in the South China Sea Arbitration.22 The following sections examine how international courts and tribunals interpreted and applied the duty to cooperate in the prevention of marine pollution, the conservation of living marine resources, illegal, unreported and unregulated fishing, and the protection and preservation of the marine environment in enclosed or semi-​ enclosed seas. (1) Prevention, Reduction and Control of Marine Pollution Several provisions of unclos provide the duty to cooperate in the prevention, reduction and control of marine pollution, namely in the form of the duty to notify and the duty to cooperate with other States and international organizations. Article 198 of unclos stipulates the duty to notify other States and international organizations when a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution. Article 199 further stipulates that States in the area affected and the competent international organizations have the duty to cooperate in eliminating the effects of pollution and preventing or minimizing the damage. States are also under the duty to cooperate in promoting studies, undertaking programmes of scientific research and encouraging the exchange of information and data acquired about pollution of the marine environment23 and in establishing appropriate scientific criteria for the formulation and elaboration of rules, standards and recommended practices and procedures for the prevention, reduction and control of pollution of the marine environment.24 In the mox Plant case and the Land Reclamation case, where the Tribunals referred to the duty to cooperate as a fundamental principle, the parties were ordered to give effect to the duty to cooperate by taking certain actions. In the mox Plant case, the Tribunal ordered Ireland and the United Kingdom to cooperate and have consultations in order to (a) exchange information on possible environmental consequences, (b) monitor risks or the effects of the operation of the mox plant, and (c) devise measures to prevent pollution of the marine environment which might result from the operation of the mox plant.25 In the

21 22 23 24 25

Request for Advisory Opinion submitted by the Sub-​Regional Fisheries Commission (srfc), Advisory Opinion, 2 April 2015, itlos Reports 2015, p. 4, p. 43, para. 140. South China Sea Arbitration (Republic of the Philippines v.  People’s Republic of China), Award, 12 July 2016, pca Case No. 2013–​19, p. 376, para. 946. unclos Art. 200. unclos Art. 201. mox Plant, supra note 19, operative provision, pp. 110–​111, para. 1.

130 Kojima Land Reclamation case, the Tribunal ordered Malaysia and Singapore to cooperate and enter into consultations in order to: (a) establish promptly a group of independent experts to study the effects of Singapore’s land reclamation and to propose measures to deal with its adverse effects; (b)  exchange information on, and assess risks or effects of Singapore’s land reclamation works; and (c) implement the commitments noted by the Tribunal (and avoid any action incompatible with their effective implementation) and consult with a view to reaching a prompt agreement on temporary measures.26 (2) Conservation and Management of Marine Living Resources The Law of the Sea Convention has a number of provisions stipulating the duty to cooperate for the conservation and management of living resources both within and beyond Exclusive Economic Zones (eez). They include the duty to cooperate for the conservation and management of living resources within the eez (Art. 61(2)), highly migratory resources within and beyond the eez (Art. 64), marine mammals within and beyond the eez (Arts 65 and 120), anadromous stocks migrating within and beyond the eez (Art. 66(4)), and living resources of the high seas (Arts 117–​119). The duty to cooperate is most elaborated in the provisions related to the conservation and management of living resources of the high seas. Article 118 mentions, if nationals of more than one State exploit identical living resources of the high seas, or different living resources in the same area, they are under the duty to enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. Article 119 refers to the duty to contribute and exchange available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks of the high seas on a regular basis through global, regional or subregional organizations where all interested States participate. The content of these obligations can be examined through the 1995 United Nations Fish Stocks Agreement27 and the Whaling in the Antarctic case.28

26 27

28

Land Reclamation in and around the Straits of Johor, supra note 20, operative provision, pp. 27–​28, para. 1. United Nations 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, adopted 4 December 1995, 2167 UNTS 88 (entered into force 11 December 2001)  [Fish Stocks Agreement]. Whaling in the Antarctic (Australia v.  Japan:  New Zealand intervening), Judgment, i.c.j. Reports 2014, p. 226.

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(a) United Nations Fish Stocks Agreement Part iii of the Fish Stocks Agreement elaborates the detailed manner in which the duty to cooperate can be implemented in the conservation and management of straddling fish stocks and highly migratory fish stocks. The agreement stipulates the duty to enter into consultations in good faith and without delay with a view to establishing appropriate arrangements to ensure conservation and management of the stocks when the straddling fish stocks and highly migratory fish stocks concerned are under threat of over-​exploitation or where a new fishery is being developed for such stocks.29 Where there is a subregional or regional fisheries management organization or arrangement which has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such an organization or participants in such an arrangement, or by agreeing to apply the conservation and management measures established by such an organization or arrangement.30 If such a subregional or regional fisheries management organization or arrangement does not exist to conserve a straddling or highly migratory fish stock, States concerned shall cooperate to establish such an organization or enter into other appropriate arrangements to ensure conservation and management of such stock and shall participate in the work of the organization or arrangement.31 It is noteworthy that, under the Fish Stocks Agreement, the obligation to cooperate through subregional or regional fisheries organizations cannot be fulfilled only by becoming a member of the organization concerned, but States must agree on and comply with conservation measures established by the organization.32 This requirement applies to both regional fisheries management 29 30 31 32

Fish Stocks Agreement, Art. 8(2). Fish Stocks Agreement, Art. 8(3). Fish Stocks Agreement, Art. 8(5). Article 10 of the Fish Stocks Agreement provides that States are obliged to: (a) agree on and comply with conservation and management measures to ensure the long-​term sustainability of straddling fish stocks and highly migratory fish stocks; (b) agree, as appropriate, on participatory rights such as allocations of allowable catch or levels of fishing effort; (c) adopt and apply any generally recommended international minimum standards for the responsible conduct of fishing operations; (d) obtain and evaluate scientific advice, review the status of the stocks and assess the impact of fishing on non-​target and associated or dependent species; (e) agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks; (f) compile and disseminate accurate and complete statistical data, as described in Annex i, to ensure that the best scientific evidence is available, while maintaining confidentiality where appropriate; (g) promote and conduct scientific assessments of the stocks and relevant research and disseminate

132 Kojima organization (rfmo) member States and non-​member States. Article 17(1) stipulates that a State which is not a member of a subregional or regional fisheries management organization or is not a participant in a subregional or regional fisheries management arrangement, and which does not otherwise agree to apply the conservation and management measures established by such an organization or arrangement, is not discharged from the obligation to cooperate in the conservation and management of the relevant straddling fish stocks and highly migratory fish stocks. Such non-​member States are requested not to authorize vessels flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks which are subject to the conservation and management measures established by such organization or arrangement.33 Is the approach taken under the Fish Stocks Agreement a useful reference for interpreting the duty to cooperate in the conservation and management of other fish stocks, such as marine mammals? Ted McDorman wrote in 1998 that the cooperation obligation under Article 65 of unclos “does not require a state to adhere to regulations adopted by the iwc”,34 let alone require a state to become a member of the iwc.35 According to McDorman’s interpretation, the obligation to “work through the appropriate organizations” under Article 65 can be met by “positive acts on the part of a state to further the work or goals of an appropriate international organization”, such as through the participation of scientists in the work of the iwc Scientific Committee.36 While treaty interpretation may change over time, the Fish Stocks Agreement alone may not constitute a subsequent practice which may have effect on the interpretation of the duty to cooperate “directly or through international organizations” in other unclos provisions. It may also not necessarily be

33 34 35 36

the results thereof; (h) establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement; (i) agree on means by which the fishing interests of new members of the organization or new participants in the arrangement will be accommodated; (j)  agree on decision-​making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner; (k) promote the peaceful settlement of disputes in accordance with Part viii; (l) ensure the full cooperation of their relevant national agencies and industries in implementing the recommendations and decisions of the organization or arrangement; and (m) give due publicity to the conservation and management measures established by the organization or arrangement. Fish Stocks Agreement, Art. 17(2). McDorman, T. L., ‘Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention’, 29 Ocean Development and International Law, 1998, p. 179, at p. 188. Id. Id.

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considered as relevant rules of international law as used in treaty interpretation. The use of the principle of systematic integration by international courts and tribunals is very limited so far. Furthermore, the Fish Stocks Agreement has only 89 parties and does not qualify as a multilateral convention of a universal character. Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) In the Whaling in the Antarctic case, the icj made a distinction between iwc resolutions adopted by majority without the support of all States and iwc resolutions adopted by consensus. The Court stated the former could not be considered as subsequent agreement or subsequent practice.37 However, as to the latter, “the States parties to the icrw have a duty to co-​operate with the iwc and the Scientific Committee and thus should give due regard to recommendations calling for an assessment of the feasibility of non-​lethal alternatives”.38 The icj found that Japan failed to show enough analysis of the feasibility of using non-​lethal methods to achieve the jarpa ii research objectives or consideration of the possibility of making more extensive use of non-​lethal methods in order to reduce or eliminate the need for lethal sampling when jarpa ii was proposed in subsequent years. The icj stated that “[g]‌iven the expanded use of lethal methods in jarpa ii, as compared to jarpa, this is difficult to reconcile with Japan’s obligation to give due regard to iwc Resolutions and Guidelines and its statement that jarpa ii uses lethal methods only to the extent necessary to meet its scientific objectives”.39 Scholarly views are different as to the legal nature of the duty to cooperate shown in the Whaling judgment.40 One view is that the duty to cooperate, namely the obligation to give due regard to recommendations, is a very weak obligation and, therefore, it does not contribute to the interpretation of Article viii of icrw in a sense that the use of lethal methods must be modified or restricted.41 (3)

37

Whaling in the Antarctic, supra note 28, para. 83: “[M]‌any IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan. Thus, such instruments cannot be regarded as subsequent agreement to an interpretation of Article viii, nor as subsequent practice establishing an agreement of the parties regarding the interpretation of the treaty (…)”. 38 Id. (emphasis added). 39 Whaling in the Antarctic, supra note 28, para. 144. 40 Shibata, A., ‘Conclusion: The Judgment, Its Implications and Prospects’, in: Fitzmaurice, M., and Tamada, D. (eds.), Whaling in the Antarctic. Significance and Implications of the ICJ Judgment, Leiden/​Boston, Brill/​Nijhoff, 2016, pp. 387–​407, at p. 393. 41 Fitzmaurice, M., ‘The Whaling Convention and Thorny Issues of Interpretation’, in: Fitzmaurice and Tamada (eds.), supra note 40, pp. 55–​138, at p. 133.

134 Kojima Another view is that the duty to cooperate transformed soft law to hard law.42 A third view is that, under the duty to cooperate, a State is simply obliged to provide reasons with evidence when it conducts activities relating to non-​binding recommendations adopted by the iwc.43 In this author’s view, whether or not a State fulfils the duty to cooperate with the competent organization cannot be assessed simply by the binding or non-​binding nature of instruments that the organization creates; instead it has to be measured by the decision-​making processes of that State and the organization in question. Even in a scenario where a State must give due regard to a hard law, it is questionable if such a duty goes beyond a procedural duty and is required to actually give effect to the law in substance. For instance, the duty to give due regard appears in a number of unclos provisions. Article 56(2) of unclos stipulates: “In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention”. In reference to the interpretation of the phrase “due regard”, views confronted in the Chagos Marine Protected Area Arbitration.44 The UK argued that the duty to give due regard in Article 56(2) did not mean to give effect to the rights of other States, nor import an obligation to consult with other States.45 Mauritius argued that Article 56(2) “necessarily implies an obligation to consult with other States when their rights or duties can be affected”.46 Mauritius further argued that the underlying principle is that “where two States seek to exercise rights in a manner that may be incompatible, consultation is required”.47 In the Chagos Marine Protected Area Arbitration, the Tribunal stated that “the ordinary meaning of ‘due regard’ calls for the United Kingdom to have such regard for the rights of Mauritius as is called for by the circumstances and by the nature of those rights”.48 The Tribunal interpreted that “the extent of the regard required by the Convention [would] depend upon the nature 42 43 44 45 46 47 48

Hayashi, M., ‘The Whaling Judgment and the Challenges of Dynamic Treaty Regimes’, in: Fitzmaurice and Tamada (eds.), supra note 40, pp. 221–​237, at p. 229. Hamamoto, S., ‘From the Requirement of Reasonableness to a “Comply and Explain” Rule:  The Standard of Review in the Whaling Judgment’, in:  Fitzmaurice and Tamada (eds.), supra note 40, pp. 38–​52, at p. 50. Chagos Marine Protected Area Arbitration (Mauritius v.  United Kingdom), Award, 18 March 2015, pca Case No. 2011-​03. Id. p. 189, para. 477. Id. p. 188, para. 473. Id. Id. p. 202, para. 519.

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of the rights held by Mauritius, their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the United Kingdom, and the availability of alternative approaches”.49 The Tribunal admitted that “[i]‌n the majority of cases, this assessment [would] necessarily involve at least some consultation with the rights-​holding State”.50 In the light of this Arbitral Award, it can be said that the duty to give due regard is an obligation of conduct that often requires consultation with the State concerned. (4) Illegal, Unreported and Unregulated Fishing Although unclos does not have explicit provisions on illegal, unreported and unregulated (iuu) fishing, the advisory opinion of the International Tribunal for the Law of the Sea in the Request for Advisory Opinion submitted by the Sub-​ Regional Fisheries Commission (srfc) gave a positive interpretation of the duty to cooperate in the context of iuu fishing. The Tribunal held that the duty to cooperate recognized as a fundamental principle in the prevention of pollution of the marine environment under Part xii of unclos “extends also to cases of iuu fishing activities”.51 The Tribunal also acknowledged that cooperation between the affected States on issues concerning the conservation and management of shared fisheries resources and the promotion of the optimum utilization of those resources is a well-​established principle in unclos.52 In the Advisory Opinion, the duty to cooperate appears in the questions relating to flag State’s obligations when iuu fishing activities are conducted within the eez of a third party State as well as in the question relating to the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest. On the first question, the Tribunal held that the flag State and the srfc Member States are under an obligation to cooperate in cases related to iuu fishing by vessels of the flag State in the eez s of the srfc Member States concerned.53 On the second (fourth in the advisory opinion) question, the Tribunal held that the srfc Member States have the obligation to ensure the sustainable management of shared stocks while these stocks occur in their

49 50 51 52 53

Id. Id. The Tribunal therefore found that the UK did not have sufficient due regard and the proclamation of the mpa was incompatible with unclos (para. 536). Request for Advisory Opinion submitted by the Sub-​Regional Fisheries Commission, supra note 21, p. 43, para. 140. Id. p. 60, para. 213. Relevant provisions of unclos include Arts. 61, 63 and 64. Id. Operative provision, p. 63, para. 3.

136 Kojima eez s. This obligation includes (a) the obligation to cooperate with the competent international organizations, whether subregional, regional or global, to ensure through proper conservation and management measures that the maintenance of the shared stocks in the eez is not endangered by over-​ exploitation (Art. 61(2) of unclos); (b)  the obligation to seek agreement upon the measures necessary to coordinate and ensure the conservation and development of straddling stocks (Art. 63(1) of unclos); and (c) the obligation to cooperate directly or through the srfc with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species in their eez s (Art. 64(1) of unclos).54 The Tribunal stated that (b) and (c) are due diligence obligations which require States concerned to consult with one another in good faith, pursuant to Article 300 of unclos,55 and in holding such consultations, “substantial effort should be made by all States concerned, with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks”.56 (5) Enclosed or Semi-​Enclosed Sea Article 123 of unclos explicitly stipulates that States bordering an enclosed or semi-​enclosed sea must endeavour, directly or through an appropriate regional organization, to coordinate the management, conservation, exploration and exploitation of the living resources of the sea and to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment. The duty to cooperate under Article 123 is, however, stipulated weakly, stating that States bordering an enclosed or semi-​enclosed sea “should” cooperate and they “shall” endeavor to coordinate. Despite its weak stipulation, the Arbitral Tribunal in the South China Arbitration declared that China failed to fulfill the duty to cooperate under Articles 197 and the duty to coordinate under Article 123 in the South China Sea.57 The Tribunal stated that the lack of coordination was related to China’s lack of communication.58 In the light of customary principles of environmental law, China clearly breached a due diligence obligation to notify and consult with potentially 54 55 56 57

58

Id. Operative provision, pp. 65–​66, para. 6. Id. at p.67. Id. South China Sea Arbitration, supra note 22, at paras. 946, 984–​986. The South China Sea is recognized as a semi-​enclosed sea in the award. The South China Sea is surrounded by China, the Philippines, Viet Nam, Malaysia, Brunei, Singapore, and Indonesia and is “a crucial shipping lane, a rich fishing ground, home to a highly biodiverse coral reef ecosystem, and believed to hold substantial oil and gas resources” (para. 3). Id. p. 395, para. 986.

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affected States when conducting island-​building activities claimed as its sovereign activities. The Award indicated that sovereign rights can be limited by the duty to cooperate for the purpose of protecting the environment and that the duty to cooperate applies even in the disputed areas. (6) Development of a Liability Regime for Marine Pollution Damage The duty to cooperate plays a role in implementing and developing a liability regime for damage caused by pollution of the marine environment. Article 235(3) of unclos provides that States are under the duty to cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. The compensation funds regime against oil pollution damage59 is an example of such cooperation and the international community is obliged to continue working through cooperation on building a legal mechanism to compensate for every damage caused by marine pollution. iv

Implications of the Duty to Cooperate in Asia

The overview of the duty to cooperate indicates that cooperation in the protection and preservation of the marine environment exists in bilateral and multilateral communications as well as through the activities of international institutions. The duty to cooperate at the bilateral level plays a vital role in Asia where there are no strong regional organizations providing regular meetings and making decisions. Asian States also prefer to choose informal institutions rather than formal institutions, as well as non-​binding agreements rather than binding agreements, as a means to cooperate. A number of international institutions are involved in the process of giving effect to the duty to cooperate in the protection of the marine environment. They range from the United Nations (UN) General Assembly, United Nations 59

E.g., International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted 18 December 1971, 1953 UNTS 373 (entered into force 16 October 1978); Protocol of 1992 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted 27 November 1992, 1953 UNTS 330 (entered into force 30 May 1996).

138 Kojima Environment Programme, International Maritime Organization, Food and Agriculture Organization, environmental treaty bodies such as the Conference of the Parties (cop s) of the Convention of Biological Diversity60 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora,61 international economic organizations such as the World Trade Organization to international courts and tribunals. As living marine resources deplete globally, Asian States are expected to enhance their cooperation through international institutions. v

Conclusion

The duty to cooperate stipulated in a number of unclos provisions in the protection and preservation of the marine environment, is, despite its vague content, applied by international courts and tribunals frequently. At the bilateral level, negotiations and consultations with affected States in good faith are one way to fulfil this duty. At the multilateral level, as shown in the Whaling in the Antarctic case, whether or not a State fulfils the duty to cooperate cannot be measured simply by the binding or non-​binding nature of instruments resulting from activities of the organization in question. It has to be measured by the decision-​making processes of that State and the organization in question. Cooperation means the action or process of working together to achieve a specific goal. The actors involved in such cooperative action or process can choose strategies of their own. Actors can choose which organization—​UN, UN specialized agencies, or treaty bodies—​achieve their shared goal the best. They can also choose to conclude a binding agreement or non-​binding agreement to achieve a common goal. Therefore, whether or not a State chooses an informal means or a formal means is not a question for fulfilling the duty to cooperate; what matters is the process of communications in good faith.

60 61

Convention on Biological Diversity, adopted 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993). Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975).

­c hapter 7

Environmental Impact Assessments in Protection and Preservation of the Marine Environment Tianbao Qin and Fang Hou* Abstract It has been endorsed by the international community that taking a environmental impact assessment prior to approval or conduction of a planning activity which may have harmful effects on the environment has become part of customary international law. The treaties on marine environment protection and preservation have an important role in the develop of environmental impact assessments. Articles 204–​206 of the United Nations Convention on the Law of the Sea (unclos) do not name environmental impact assessments directly but can be regarded as the specific application of environmental impact assessment in the law of the sea. Overall, article 206 is very vague and inoperable, but it contains elements of environmental impact assessment. The Espoo Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) and the Draft Articles on the Prevention of Transboundary harm from Hazardous Activities adopted by the International Law Commission in 2001 (Articles on Prevention) are general rules that have significant influence on marine environmental impact assessment. The judicial practice of the International Court of Justice and the International Tribunal for the Law of the Sea have interpreted the rules of environmental impact assessment, thus facilitating the development of these rules.

Keywords environmental impact assessments –​United Nations Convention on the Law of the Sea  –​Espoo Convention  –​Articles on Prevention  –​Pulp Mills case  –​Mox  –​Plant case –​marine environment * Tianbao Qin (1975-​) is a Professor of Law at the Research Institute of Environmental Law (riel) and China Institute of Boundary and Ocean Studies (cibos) at Wuhan University whose research fields are environmental law and international environmental law. Contact:  fxyqtb@ whu.edu.cn. Fang Hou (1985-​) is a doctoral candidate at the China Institute of Boundary and Ocean Studies (cibos) at Wuhan University and a Lecturer of Zhoukou Normal University. Her research field is international environmental law. Contact: [email protected]. PowerPoint available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​beijing-​qin.pdf. © Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_011

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Introduction

Many instruments now require environmental impact assessments (eia s) and State practices suggest that environmental impact assessments have become part of customary international law. The purpose of this paper is to sort out the rules and practices of marine environmental impact assessment and to seek the specific rules of marine environmental impact assessment. In the process of writing, we mainly use the relevant rules of treaty interpretation and the method of comparison and induction. This paper mainly discusses these problems: What is environmental impact assessment? What are the main documents on marine environmental impact assessment? How do we interpret the relevant articles under the United Nations Convention on the Law of the Sea (unclos)? How does general international law regulate and apply to the practice of environmental impact assessment? 1

Origins of Environmental Impact Assessment (eia)

1.1 Definition Environmental impact assessment is a key mechanism in international environmental law and a commonly used mechanism for states to gain knowledge of the environmental consequences of actions that they authorize or in which they participate. The Espoo Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) describes “a national procedure for evaluating the likely impact of a proposed activity on the environment”. unep’s Goals and Principles of Environmental Impact Assessment describes “environmental impact assessment as a democratic, scientific and public-​ participatory procedure that assesses the potential environmental impacts of a proposed activity, examines alternative plans, proposes measures to prevent, control or reduce relevant impacts and monitors implementation of the assessment outcomes”. 1.2 Classification According to the affected area, environmental impact assessment can be divided into transboundary environmental impact assessment (teia) and global commons environmental impact assessment (gceia). The classic example of teia is the environmental impact assessment of water resource utilization between upstream and downstream countries. In recent years, the annual “plantain burning” in Indonesia, which created haze pollution consisting of smoke and dust that spread across national borders has caused serious air pollution

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in neighbouring Singapore and Malaysia. On 31 March 2008, Ecuador filed an application to the International Court of Justice (icj) concerning Colombia’s aerial spraying of toxic herbicides to coca leaf plantations on locations near its border with Ecuador. This was a part of Colombia’s “war on drugs”, causing damage to people and the natural environment in Ecuador. These relate to transboundary environmental effects and compensation for transboundary damage. The adoption of prior environmental impact assessments of activities that might affect the environment in areas outside national jurisdiction has been supported by a number of international documents. Under the Antarctic treaty system, gceia was asked in article 8 in the Protocol for the Antarctic Treaty on Environmental Protection (1991): “Proposed activities referred to in paragraph 2 below shall be subject to the procedures set out in Annex I for prior assessment of the impacts of those activities on the Antarctic environment or on dependent or associated ecosystems...”. The obligation of eia is set out in article 206 of the United Nations Convention of the Law of the Sea (unclos) and in the Annex of the Agreement on the implementation of part xi of unclos.1 This obligation includes both teia and environmental impact assessment beyond national jurisdiction. The advisory opinion of the seabed disputes chamber of the International Tribunal for the Law of the Sea (itlos) clearly expounds that: “the sponsoring State is under a due diligence obligation to ensure compliance by the sponsored contractor with this obligation an assessment of the potential environmental impacts of the proposed activities”. Relationships eia and the Principle of Prohibition of Transboundary Environmental Harm (“No-​harm rules”) Article 21 of the Declaration of the United Nations Conference on the Human Environment is considered a classic expression of the principle of prohibition of transboundary environmental harm, and provides: “states have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national 1.3 1.3.1

1 The obligation of the contractor to conduct an environmental impact assessment is explicitly set out in section 1, paragraph 7, of the Annex to the 1994 Agreement as follows: “An application for approval of a plan of work shall be accompanied by an assessment of the potential environmental impacts of the proposed activities …”.

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jurisdiction”. Prior environmental impact assessment is an effective tool to ensure that the environment of other countries or areas beyond national jurisdiction is not harmed. 1.3.2 eia and the Principle of Precaution The environmental impact assessment procedure is designed to analyze the harmful impact on the environment before a planned project is conducted or a policy granted. In this sense, environmental impact assessment is a direct consequence of the precautionary principle and an instrument to understand the environmental impacts of a project as early as possible. Article 17 of the United Nations Declaration on the Human Environment affirms the principle of precaution. A significant development in international environmental law following the Stockholm conference is that a number of treaties provide for a number of procedures to be adopted by States parties before implementing activities to prevent damage to the environment. These include environmental impact assessment, consultations and prior notification. 1.3.3 eia and Procedural Obligation eia is inherent in procedural obligations of cooperation, prior notification and consultation. When a country fails to comply with an eia, it is difficult to say that it has fulfilled its obligations of cooperation, notification and consultation. The Convention on the Protection of the Marine Environment of the Baltic Sea Area (1992, Helsinki Convention) clearly establishes the obligation of eia and the obligation to make the results of the assessment publicly available in accordance with article 16 of the Convention. Although the United Nations Convention on the Law of the Non-​navigational Uses of International Watercourses (1997, United Nations Watercourses Convention) does not impose an obligation to implement an eia prior to the implementation of a proposed project or activity likely to have a significant environmental impact, whereas environmental impact assessment has become a customary international law, supported by international treaties and international practice, eia has become an inherent part of other procedural obligations. “It is nevertheless arguable that even in those instances where no specific provision is made, environmental impact assessment may be taken to be implicit in other procedural duties, in particular the duty to notify other States of proposed activities that may entail transboundary harm”.2 2 Phoebe N.  Okowa, “Procedural Obligations in International Environmental Agreements”, British Yearbook of International Law, Volume 67, Issue 1, 1 January 1997, pp. 275–​336, https://​ doi.org/​10.1093/​bybil/​67.1.275.

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1.3.4 eia and Substantive Obligation In the Nuclear Tests ii case, New Zealand states that France cannot assume that it is fulfilling its obligation to take appropriate measures to prevent pollution in the absence of an eia. New Zealand’s reasoning illustrates the relationship between environmental impact assessment obligations and the concept of due diligence. If transboundary harm has occurred and no prior environmental impact assessment has been carried out, it is difficult for a State to argue that it has exercised due diligence in preventing or controlling foreseeable harm. Similarly, teia s must be relevant to the obligation to inform and notify. In most cases where there is a risk of environmental damage, consultation or notification procedures are not possible without prior assessment of the risk involved. 2

Rules of Environmental Impact Assessment

A very large number of international treaties include provisions requiring an environmental impact assessment. The field of marine protection was particularly important for the development of eia rules. One can identify the eia procedures in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter which have an environmental impact assessment character. Article 206 of the unclos contains the basic elements of eia. The Draft regulations on the Exploitation of Mineral Resources in the Seabed also take environmental impact assessment as the core of regulation. Support for eia can be found furthermore in a range of other international non-​binding instruments, including environmental impact assessment procedures of international organizations, and it seems that the practice of requiring an eia has become very prevalent. The judicial practice of the icj and the itlos also shows that the obligation of States to adopt environmental impact assessments for proposed activities derives not only from treaties but also from general international law on environmental protection. In judicial practice, eia has evolved from a treaty downward obligation to an international customary law obligation. The Nuclear Tests ii case3 evidences an emerging recognition of a customary obligation to conduct teia among the parties and the dissenting judges. In the 3 Nuclear Tests, Australia v France, Judgment, admissibility, icj GL No 58, [1974] icj Rep 253, icgj 133 (icj 1974), 20th December 1974, International Court of Justice [icj]; Nuclear Tests, New Zealand v France, Judgment, admissibility, icj GL No 59, [1974] icj Rep 457, icgj 137 (icj 1974), 20th December 1974, International Court of Justice [icj].

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Gabčíkovo-​Nagymaros case,4 the icj requires states to consider environmental protection and to conduct eia before planned activities for the first time. In the Pulp Mills case,5 the icj has elevated environmental impact assessments to obligations under international law, requiring all States to comply. In addition, the ilc 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (Articles on Prevention) is a codification activity with far-​reaching implications for customary law and general international law. The Draft Articles require an assessment of the potential impact of a project or activity on individuals, property and the environment in other countries. It follows that an eia of activities to be undertaken is an obligation under international law. Compliance by States with this rule in accordance with international law gives it opinio juris (one of the two elements of the formation of international ­custom). Furthermore, eia requirements have been incorporated into a great number of national environmental regulations. For instance, out of 56 Member States of the United Nations Economic Commission for Europe (unece), 41 developed countries and countries in transition have thus far become parties to the Espoo Convention. Many developing countries in Africa, Asia, and Latin America also have inserted eia provisions within their environmental legislation. State practice is universal and continuous. Prior environmental impact assessment has become a general practice in the country. At present, eia has been widely supported and used in international law (Table 7.1). A number of international organizations concerned with environmental protection, including the Organization for Economic Cooperation and Development, the Food and Agriculture Organization and the United Nations Environment Programme, have adopted recommendations or declarations to support eia. International financial institutions play an important role in teia. Almost all infrastructure projects funded by multilateral development banks or assisted by other international development agencies now require an environmental impact assessment process to assess their potential domestic, transboundary and global commons environmental impact. According to article 38 of the Statute of the icj, a customary international law (international custom) should satisfy two requirements: general practice and acceptance as a law. eia prior to the proposed activity is a recognized

4 Gabčikovo-​Nagymaros Project, Hungary v Slovakia, Order, Site Visit, [1997] icj Rep 3, icgj 65 (icj 1997), 5th February 1997, International Court of Justice [icj]. 5 Case Concerning Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment on the merits, icgj 425 (icj 2010), 20th April 2010, International Court of Justice [icj].

Environmental Impact Assessments in Protection and Preservation1 45 table 7.1 Documents related to environmental impact assessment

Binding documents Treaty Marine

Others

Customary international law

Arts 4 and 5, Annexes ii and iii, London Dumping Convention; Art. 206, unclos; Art. 11, Kuwait Regional Convention for Co-​operation on the Protection of the Marine Environment from Pollution; Art. 13, Convention for Co-​operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region; Art. 8, Convention for the Protection of the Marine Environment and Coastal Area of the South-​East Pacific; Art. 11, Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment; Art. 12, Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region; Art. 13, Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region; Art. 16, Convention for the Protection of the Natural Resources and Environment of the South Pacific Region. Art. 6, Convention on the Protection of the Environment between Denmark, Finland, Norway, and Sweden; Art. 14 (1), asean Agreement on the Conservation of Nature and Natural Resources; Art. 14 (1), Convention on Biological Diversity; Art. 8, Protocol on Environmental Protection to the Antarctic Treaty; Art. 4 (2) (f), Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal; Arts 3 (1) (h), 9 (2) (j), Convention on the Protection and Use of Transboundary Watercourses and International Lakes; EC Directive 85/​337; EC Directive 2001/​ 42; Espoo Convention. No-​harm rule; Prior environmental impact assessment.

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table 7.1 Documents related to environmental impact assessment (cont.)

Non-​binding documents unep Conclusions of the Study of Legal Aspects concerning the Environment Related to Offshore Mining and Drilling within the Limits of National Jurisdiction; The unep Goals and Principles of Environmental Impact Assessment of 1987. oecd Recommendation of the Council on the Analysis of the Environmental Consequences of Significant Public and Private Projects; Recommendation of the Council on the Assessment of Projects with Significant Impact on the Environment; Recommendation of the Council on Environmental Assessment of Development Assistance Projects and Programmers. UN Principle 14 and 15 Stockholm Declaration; Principle 17 Conference Rio Declaration; Agenda 21; The Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States. Others paras 11 (b) and (c) World Charter for Nature; Convention on the Protection and Use of Transboundary Watercourses and International Lakes; 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities; United Nations Draft Articles on the Law of Transboundary Aquifers.

rule of customary international law by the international community. International judicial practice shows that States have no objection to this principle, and only have different views on the specific content of the rule and how to apply it. 3

Articles under unclos

As noted above, prior eia has become a customary international law, and norms in the field of oceans play an important role in promoting eia s.

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However, there are no uniform and specific rules for environmental impact assessment of marine environmental protection and preservation. Although article 206 of the unclos is not directly named as “environmental impact assessment”, it can be regarded as a concrete application of eia in the protection and preservation of the marine environment. This part discusses the contents of the rules of marine environmental impact assessment from four aspects: the scope and content, threshold to initiate, standards of assessment, and rights and obligations. Although articles 204–​206 of unclos require states to consider environmental impact assessments in ocean governance, they do not impose substantive obligations on environmental impact assessment, nor do they even require environmental impact assessments, the obligations only require an “assessment”.6 An early proposed draft of the eia provision required a State planning an activity that may cause “significant alteration of the marine environment” to file an “environmental impact statement” with the “international organization concerned”.7 According to the preparation documents, an eia provision had not been seriously opposed by any State. Unfortunately, in the end, this article does not use “environmental impact assessment”, nor does it use “environmental impact statement” referred to in the draft article. According to article 206, states shall communicate reports of the results of such assessments in the manner provided in article 205. Thus, we have to read article 206 in the context of article 205.8 These two articles provide the basic requirements of environmental impact assessment, in particular the threshold to

6 7

8

Amy Boyes, Environmental impact assessments in areas beyond national jurisdiction. Law S528 law of the sea research paper, Victoria University of Wellington (2014): 16. Myron H.  Nordquist, Shabtai Rosenne and Alexander Yankov, eds., The United Nations Convention on the Law of the Sea 1982:  A Commentary, Volume iv, Martinus Nijhoff Publishers, (1991):109–​124. The use of “environmental impact statement” reflects nepa’s influence upon this article. Article 205: Publication of reports: “States shall publish reports of the results obtained pursuant to Article 204 or provide such reports at appropriate intervals to the competent international organization, which should make them available to all States”.Article 206: Assessment of potential effects of activities: “When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in Article 205”.

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initiate environmental impact assessment, rights and obligations of the States and channels of information exchange.9 3.1 Scope and Content The obligations set out in article 206 apply to “all planned activities under national jurisdiction or control”. The geographical scope of this obligation is very broad, covering areas under national jurisdiction and areas beyond national jurisdiction: in other words, the entire planet. Furthermore, according to the Virginia Commentary,10 the obligations under article 206 should apply to all activities to be carried out under the jurisdiction or control of the State, irrespective of the nationality of the person or enterprise responsible for the activity to be carried out. However, this scope is limited to “activities” and does not include national policies and national strategies. In a word, the obligations of eia under the unclos include teia and gceia. This obligation is directed at activities rather than obligations of the State, which means that it includes both the environmental impact activities of the State and those of the private subject. This scope excludes strategic environmental assessment (sea), which is different from the Espoo Convention. Articles 205 and 206 do not provide any definition of the content of environmental assessment, but article 205 requires states to “publish reports of the results obtained pursuant to Article 204”.11 As can be seen from the text, it should cover at least two aspects: “the risks or effects of pollution of the marine environment” and “whether these activities are likely to pollute the marine environment”. The former focuses on general observation, measurement, evaluation and analysis of the marine environment, while the latter focuses on the activities themselves. However, eia and assessment reports in general international environmental law are much more than the monitoring results provided for in article 204. 9

Kong, Lingjie, “Environmental impact assessment under the United Nations Convention on the Law of the Sea”. Chinese Journal of International Law 10.3(2011): 651–​669. 10 Myron H.  Nordquist, Shabtai Rosenne and Alexander Yankov, eds., The United Nations Convention on the Law of the Sea 1982:  A Commentary, Volume iv, Martinus Nijhoff Publishers, (1991): 109–​124. 11 Article 204 Monitoring of the risks or effects of pollution: 1. States shall, consistent with the rights of other States, endeavour, as far as practicable, directly or through the competent international organization, to observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment. 2. In particular, States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment.

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3.2 Threshold to Initiate Article 206 sets the threshold for the commencement of an environmental impact assessment: “When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment”. From the text, to initiate eia, two basic conditions should be satisfied: “reasonable grounds” and “may cause substantial pollution of or significant and harmful changes to the marine environment”. According to the Virginia Commentary,12 “reasonable” means that the countries concerned have a certain discretion in this respect, which can be echoed by the possible expression of the article “as far as practicable” to evaluate the relevant activities. The Commentary does not address the text “significant and harmful”. Amy Boyes in an article stated that: “In the absence of definitions, the interpretation of these limitations has actually led to fewer environmental impact assessments. First, the State of origin has discretion to determine whether it has reasonable grounds to believe that activities under its jurisdiction or control would result in ‘significant pollution or significant harmful side-​effects’. Each country has discretion to determine the threshold of ‘significant and harmful’ ”.13 In fact, there is neither a clear standard nor a reference to general international law and international practice in the context of the eia threshold to initiate. So unclos does not make any contribution to the initiate threshold of environmental impact assessment. The initiation of eia is entirely dependent on national discretion. 3.3 Standard of Assessment Article 206 does not refer to the assessment criteria that must be met in order to fully fulfil the assessment obligation, but only requires States to conduct an evaluation “as far as practicable”. This provision is consistent with the principle of common but differentiated responsibilities in international environmental law. To fully understand this, we must look at the circumstances in which unclos was established. unclos was enacted in the 1970s, when the international community

12 13

Myron H.  Nordquist, Shabtai Rosenne and Alexander Yankov, eds., The United Nations Convention on the Law of the Sea 1982:  A Commentary, Volume iv, Martinus Nijhoff Publishers, (1991): 109–​124. Amy Boyes. Environmental impact assessment in areas beyond national jurisdiction. Law S528 law of the sea research paper (2014):15–​17.

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fought for national sovereignty and permanent sovereignty over natural resources. Development is the theme of this period. The 1972 Stockholm Declaration defines several principles of international environmental law from a global perspective: the principle of common but differentiated responsibilities, the principle of international cooperation, the principle of precaution and so on. unclos reflects the psnr principle, the principle of common but differentiated responsibilities and the new development of international environmental law. In view of the new developments in international environmental law, it has become an international practice to assess the environmental consequences of activities that may cause environmental impacts. unclos reflects this development and indirectly incorporates it into articles 204–​206. However, considering the principle of international sovereignty and the distinction between national capabilities, it is not appropriate to set a unified assessment standard. “As far as practicable” means that countries are empowered to adopt different standards according to their domestic laws and different national conditions. Therefore, the eia criteria under unclos vary from country to country. Instead of substantive standards, specific procedural rules are true. Article 206 fully embodies the principle of common but differentiated responsibilities, but also sows the seeds of disputes. “As far as practicable” is a relative subjective criterion, but it is not a criterion for the initiation of an environmental impact assessment, nor is it an exemption from national obligations and responsibilities for environmental impact assessment. It is a requirement for the specific content and depth of the eia that must be carried out.14 3.4 Rights and Obligations As noted above, articles 204–​206 give the State the right to determine the content of an environmental impact assessment and to initiate criteria and procedures. However, very few references were made to obligations, particularly procedural obligations. Only the obligations of “exchange of information” and “monitoring” were mentioned. The obligation to “exchange of information” is reflected in article 205: “States shall publish reports of the results to the competent international organization”. This provision, taking into account global marine pollution or change, requires a “competent international organization”, but does not take into account the capacity of the competent international organization, nor does it 14

Zoe Scanlon, Robert Beckman. “Assessing Environmental Impact and the Duty to Cooperate: Environmental Aspects of the Philippines v China Award”. Asia-​Pacific Journal of Ocean Law and Policy, Volume 3, Issue 1, (2018):5–​30.

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refer specifically to “competent international organization”. Moreover, there are no special provisions for countries and people who are seriously affected. These gaps also require consideration of existing general international law and practice relating to eia, which will be elaborated in the next section. The monitoring obligation reflected in article 204 is an important procedural obligation of eia. In Gabčíkovo-​Nagymaros, Judge Weeramantry recognized that environmental impact assessment had assumed an important part of the case and stated that environmental impact assessment “means not merely an assessment prior to the commencement of the project, but a continuing assessment and evaluation as long as the project is in operation” and that it was a dynamic principle, not confined to a pre-​project evaluation of possible environmental consequences. He argued that continuous monitoring is necessary because, with such a complex matter as the environment, a prior environmental impact assessment can never anticipate every possible environmental danger, and that “the greater the size and scope of the project, the greater is the need for a continuous monitoring of its effects”.15 However, article 206 and related articles do not cover other procedural obligations such as notification, information, consultation, negotiation, nor do they cover substantive obligations such as the duty of care and diligence. Article 206 of the unclos defines the basic elements of marine environmental impact assessment, but does not provide operational rules. This article does not use the expression “environmental impact assessment” but refers to it as “assessment of potential effects of activities”. Therefore, it is not enough to invoke this article alone on the marine environmental impact assessment. Attention should also be paid to the general international law of environmental impact assessment, especially Espoo Convention and judicial practice. Moreover, current international treaties and practices show that environmental impact assessment has become general customary international law. 4

General International Law and Practices about Marine Environmental Impact Assessment

As stated in the second part, environmental impact assessment has become a common practice of states in carrying out transboundary activities, but the specific applicable rules of environmental impact assessment do not have

15

Gabčikovo-​Nagymaros Project, Hungary v Slovakia, Order, Site Visit, [1997] icj Rep 3, icgj 65 (icj 1997), 5th February 1997, International Court of Justice [icj].

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universal norms and standards. In examining how to apply environmental impact assessment, we have to refer to domestic laws, typical regional treaties and international judicial precedents. Here, we mainly refer to the Espoo Convention, Articles on Prevention, the Pulp Mills case, and the Mox Plant case.16 4.1 Scope and Content of Environmental Impact Assessment In the Pulp Mills case, Argentina argued that the eia was inadequate, because Uruguay had not considered alternative sites for the mill. Argentina also claimed that the environmental impact assessment was inadequate as the populations likely to be affected by the construction of the mill had not been sufficiently consulted.17 These claims imply that Argentina believes that Uruguay’s eia did not meet the requirements of the environmental impact assessment procedure. But what is the scope and content of environmental impact assessment? In other words, is there a minimum standard for eia procedures? 4.1.1 Scope of Environmental Impact Assessment The Espoo Convention, as the only convention on teia, reflects the general practice in the field of teia. Article 2 describes the scope of environmental impact assessment: “3. The Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix i that is likely to cause a significant adverse transboundary impact. … 7. Environmental impact assessments as required by this Convention shall, as a minimum requirement, be undertaken at the project level of the proposed activity. To the extent appropriate, the Parties shall endeavour to apply the principles of environmental impact assessment to policies, plans and programmes”. This provision shifts the scope of environmental impact assessment from the direct obligations of States in unep Goals and Principles to obligations based on the proposed activities. In addition, the scope of environmental impact assessment includes not only proposed activities under state’s jurisdiction or control, but also policies, plans and programmes. The Protocol on Strategic Environmental Assessment to the Convention on Transboundary environmental impact assessment, signed in 2003, “recognizes that strategic environmental assessment should play an important role in the 16 17

Mox Plant Case, Ireland v United Kingdom, Order, Request for Provisional Measures, itlos Case No 10, icgj 343 (itlos 2001), 3rd December 2001, International Tribunal for the Law of the Sea [itlos]. Case Concerning Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment on the merits, icgj 425 (icj 2010), 20th April 2010, International Court of Justice [icj].

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development, adoption of planning, planning process, and in the formulation and adoption of policies and laws within the appropriate context” and incorporate strategic environmental assessments into the scope of eia. Here, we mainly discuss environmental impact assessment based on proposed activities, regardless of strategic environmental assessment.18 The Espoo Convention and judicial practice mentioned in this paper refer to teia. Although there are many deficiencies in the relevant rules of teia, some basic norms for international cooperation, public participation, consultation and negotiation on teia have been established. The nature of the treaty determines that the Espoo Convention cannot apply to non-​parties. The limits of its membership determine the limits of its scope of application. In the Pulp Mills case, the court noted that neither Argentina nor Uruguay were parties to the Espoo Convention. With regard to the scope and content of environmental impact assessment, the Court held that there was no special provision in general international law and that the Espoo Convention was not generally binding on non-​parties. After excluding the provisions of general international law, the determination of the scope and content of environmental impact assessment should be determined by each country in accordance with its domestic law.19 4.1.2 Content of Environmental Impact Assessment The content of an environmental impact assessment report was listed in the Espoo Convention’s Appendix ii:



18

19

Information to be included in the environmental impact assessment documentation shall, as a minimum, contain, in accordance with Article 4: a) A description of the proposed activity and its purpose; b) A description, where appropriate, of reasonable alternatives (for example, locational or technological) to the proposed activity and also the no-​action alternative; One of the differences between environmental impact assessment outside national jurisdiction and teia is the uncertainty of the affected party. If there are affected parties, how can we determine the scope of affected parties? If strictly investigated, the entire international community and humanity are the affected parties. How can we conduct global consultations and consultations within the framework of existing international law to ensure public participation? How we carry out environmental impact assessment in the global Commons is an urgent problem to be solved, especially when the exploitation and utilization of deep-​sea resources becomes possible. Case Concerning Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment on the merits, icgj 425 (icj 2010), 20th April 2010, International Court of Justice [icj].

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c) A description of the environment likely to be significantly affected by the proposed activity and its alternatives; d) A description of the potential environmental impact of the proposed activity and its alternatives and an estimation of its significance; e) A description of mitigation measures to keep adverse environmental impact to a minimum; f) An explicit indication of predictive methods and underlying assumptions as well as the relevant environmental data used; g) An identification of gaps in knowledge and uncertainties encountered in compiling the required information; h) Where appropriate, an outline for monitoring and management programmes and any plans for post-​project analysis; and i) A non-​technical summary including a visual presentation as appropriate (maps, graphs, etc.)”.

Similarly, the icj held that the Espoo Convention did not apply to the Pulp Mills case and that general international law did not specifically provide for an eia. The Court declined to elaborate on the scope and the content of environmental impact assessments, based primarily on consideration of the principle of permanent sovereignty over national natural resources. Environmental protection cannot override national sovereignty. However, the icj has given the following instructions on the criteria for environmental impact assessment conducted by States in accordance with domestic law. First, states must take into account the scale and nature of the construction to be carried out, the possible adverse effects on the environment and the obligation to undertake eia s with “due diligence”. Environmental impact assessment obligations must be implemented through domestic legislation or enabling procedures. Secondly, the environmental impact assessment must be carried out before the project, and once the construction begins, the continuous monitoring of the environmental impact must be carried out throughout the project. Finally, the icj pointed out that the obligation of States to carry out environmental impact assessments in accordance with domestic law is only an obligation of “propriety” to impose on the conduct of the State, and does not impose any rigid provisions on the results of eia s.20

20

Case Concerning Pulp Mills on the River Uruguay, Argentina v Uruguay, Judgment on the merits, icgj 425 (icj 2010), 20th April 2010, International Court of Justice [icj].

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In the Mox Plant case, Ireland claimed that the United Kingdom had breached its obligation under article 206 of unclos in relation to the authorization of the Mox Plant, including by (a) failing, by its 1993 Environmental Statement, properly and fully to assess the potential effects of the operation of the Mox Plant on the marine environment of the Irish Sea; and/​or (b) failing, since the publication of its 1993 Environmental Statement, to assess the potential effects of the operation of the Mox Plant on the marine environment by reference to the factual and legal developments which have arisen since 1993, and in particular since 1998; and/​or (c) failing to assess the potential effects on the marine environment of the Irish Sea of international movements of radioactive materials to be transported to and from the Mox Plant; and/​or (d) failing to assess the risk of potential effects on the marine environment of the Irish Sea arising from terrorist act or acts on the Mox Plant and/​or on international movements of radioactive material to and from the Mox Plant.21 In a word, the rules for determining the scope and content of eia are as follows:  if there is a treaty of common application, it shall be governed by the provisions of the treaty. In the absence of a treaty, it shall be governed by the domestic law of the original State. 4.2 Threshold to Initiate Environmental Impact Assessment In article 206, the threshold to initiate environmental impact assessment is “substantial pollution of or significant and harmful changes to the marine environment”. This standard is vague and unworkable. So how does international practice apply this provision? itlos plays an important role in the protection of the marine environment. A study of Irish and British claims and court decisions in 2001 in the case of Britain in the Mox Plant case helped us to understand article 206. The tribunal considered “that the United Kingdom argues that Ireland has failed to supply proof that there will be either irreparable damage to the rights of Ireland or serious harm to the marine environmental resulting from the operation of the Mox Plant and that, on the facts of this case, the precautionary principle has no application”.22 The case is a specific judicial application of article 206. It can 21 22

itlos, THE MOX PLANT CASE (IRELAND V.  UNITED KINGDOM) Request for provisional measures order, (2001), list of cases: No.10. itlos, THE MOX PLANT CASE (IRELAND V.  UNITED KINGDOM) Request for provisional measures order, (2001), list of cases: No.10.

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be seen from this that the damage should result in “irreparable” and “serious harm”. Notably, the burden of proof of damage, or whether the threshold for initiation of the environmental impact assessment has been met, has been assigned to the prosecution. Article 2 of the Espoo Convention sets the threshold for the commencement of teia s:  “the Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities”. The convention takes the “significant adverse” standard. This criterion is difficult to quantify, and to what extent does an impact constitute “significant adverse”? The Convention therefore determines whether an activity is a “significant adverse” in two ways: the enumeration of projects that are bound to have a significant environmental impact; and the promotion of discussions and consultations among parties on specific projects. In addition, in some exceptional cases, even if the proposed boundary activity is not an item listed in the Convention, it should be studied if the project has a significant environmental impact, as proposed by one of the parties. This is an extension of the provisions of the Convention by the parties concerned. Further, parities may make new agreements to regulate the issue.23 According to the commentaries to the Articles on Prevention the threshold shall be measured by “factual and objective standards”.24 By combing through some cases concerning the no-​harm rule25 in the icj, we find that the threshold of harm shows a downward trend. Early cases on transboundary harm present a relatively high threshold; in the Trail Smelter case, the arbitral tribunal only considered activities which caused injury of “serious consequences”, and similarly, the tribunal in the Lac Lanoux case set the threshold at “serious injury”. In the Certain Phosphate Lands in Nauru case,26 the government of Nauru requested the Court to adjudge and declare

23 24 25 26

Song Xin, Study on the Legal System Transboundary environmental impact assessment, Chinese Marine University, 2011. Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries (2001), appears in the Yearbook of the International Law Commission, 2001, vol. ii, Part Two. No-​harm rule or prohibition of transboundary environmental harm rule’s meaning is that states may not conduct or permit activities within their territories, or in common spaces, without regard to other states or for the protection of the global environment. Certain Phosphate Lands in Nauru, Nauru v Australia, Preliminary Objections, Judgment, [1992] icj Rep 240, icgj 91 (icj 1992), 26th June 1992, International Court of Justice [icj].

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that Australia were “under an obligation not to bring about changes in the condition of the territory which will cause irreparable damage to, or substantially prejudice, the existing or contingent legal interest of another State”. In the Gabčíkovo-​Nagymaros case, Hungary claimed that the “obligation enunciated in Stockholm Principle 21 not to cause substantial damage to the territory of another State, or to areas beyond national jurisdiction, had over time become a rule of international law”. In Ecuador’s application in the Aerial Herbicide Spraying case it was argued that “fumigations dispersed by Colombia along or near the boundary line have been carried across the border and have caused significant deleterious effects in Ecuador”. In the Pulp Mills case, the Court explicitly stated that the obligation applied to “significant damage to the environment”. By comparison, the standard of unclos is higher than the standard of the latest cases of the icj. According to the commentaries to the Articles on Prevention, “significant” is “something more than ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial’. The requirement of unclos is close to that expressed in the Trail Smelter and Lac Lanoux cases. 4.3 Rules of Environmental Impact Assessment Procedure The environmental impact assessment procedure in Espoo Convention was defined as “a national procedure”, although an eia procedure before a planned activity that may have environmental impact has become a customary international law. The states take the procedure of eia s and make their strategic environmental assessments refer to international law. But essentially, the procedure is conducted in accordance with national law, not international law. The question of rules of procedure concerns the relationship between international law and domestic law. International law on eia imposes an obligation on states to adopt environmental impact assessment procedures prior to the proposed project. On the one hand, the initiation and procedure of eia is a matter within a country’s sovereignty, and the state has discretion. The United States first introduced environmental impact assessment through the National Environmental Policy Act of 1969. Since 1988, in order to comply with the Directive of 1985, EC member States have been required to establish a national eia clause.27

27

Owen McIntyre, Qin Tianbao, Jiang Xiaoyi. “The law and practice of environmental impact assessment of transboundary watercourse”, (2012), Jiangxi Social Science, pp. 251–​256.

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On the other hand, states should abide by the rules of international law on environmental impact assessment, including international treaties and customary international law. In its advisory opinion on Seabed Activities,28 itlos also referred to the dicta from Pulp Mills, but unlike the icj, the tribunal found that in the context of seabed activities in the area, the International Seabed Authority’s Regulations and Recommendations added “precisi”, indicating that the content of an eia was not completely left out and was specifically left to domestic law to define.29 Environmental impact assessment procedures shall refer to the Articles on Prevention, especially the obligations of cooperation in good faith, and of prior notification, consultation and negotiation. Article 4 requires states to “cooperate in good faith” in preventing significant transboundary harm or at any event in minimizing the risk thereof. The Articles further impose obligations to notify and inform when an eia indicates a risk if causing transboundary environmental harm, requiring the state of origin to “provide the State likely to be affected with timely notification of the risk and the assessment and shall transmit to it the available technical and all other relevant information on which the assessment is based”. Furthermore, states are under article 9(1) required to “enter into consultations” with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent significant transboundary harm or to minimize the risk of harm. Such solutions should be based on an equitable balance of the interests of states. A list of factors to be involved in the balance of interests is provided in Article 10. The list includes the risk of significant transboundary harm, importance of the activity, economic viability of the activity in relation to the costs of prevention and the standards of prevention which the state likely to be affected applies to the same or comparable activities, and the standards applied in comparable regional or international practice. No particular priority is assigned to any of these factors, and the list is presumably not exhaustive, which indicates that as long as the parties comply with the overriding obligation to enter into consultations in good faith, states are free to take into account whatever factors they find relevant. The Articles also emphasize that affected states do not necessarily have the right to veto harmful projects if the parties fail to reach an agreement through consultations. 28 29

Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area, 1st March 2013 (ISBA/​19/​LTC/​8), oxio 316. Marte Jervan, The Prohibition of Transboundary Environmental Harm. An Analysis of the Contribution of the International Court of Justice to the Development of the No-​harm Rule (2014), PluriCourts Research Paper No. 14–​17.

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Although article 206 of unclos does not mention these procedural obligations, the juridical practice of itlos refers to these obligations several times. In the Mox Plant case, in the view of the tribunal, “prudence and caution require that Ireland and the United Kingdom cooperate in exchanging information concerning risks or effects of the operation of the Mox Plant and in devising ways to deal with them, as appropriate”. “Ireland and the United Kingdom shall cooperate and shall, for this purpose, enter into consultation forthwith in order to: Exchange further information with regard to possible consequences for the Irish Sea arising out the commissioning of the Mox Plant; Monitor risk or the effects of the operation of the Mox Plant for the Irish Sea; Devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the Mox Plant”.30 It is important to understand that eia is an instrument which plays an important role in forcing the decision makers to have a procedure based on scientific evidence before making a decision and in enabling the public to participate in decisions that will affect them. eia s do not require particular environmental outcomes. International judicial practice shows that neither countries nor courts object to environmental impact assessment, but there are disputes in scope, content, threshold of initiation, criteria and rules of procedure. In addition to the application of article 206 of the unclos, the Tribunal also invokes general international law on environmental impact assessment.

Conclusion

The unclos and general international law define the basic regime of marine environmental impact assessment, and general international law and international practice are progressing. This was clearly described in the Gabíkovo-​ Nagymaros case by the icj. In specific cases, the Tribunal is not limited to the provisions of the unclos. Overall, article 206 is very vague and inoperable, but it contains elements of environmental impact assessment. This article is applicable to teia and gceia, but excludes sea. The content of the eia report is also unclear and varies in international practice according to treaty and domestic law. The threshold of initiation of marine environmental impact assessment under unclos is “may cause substantial pollution of or significant

30

itlos, THE MOX PLANT CASE (IRELAND V.  UNITED KINGDOM) Request for provisional measures order, (2001), list of cases: No.10.

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and harmful changes to the marine environment”. This standard is higher than the “significant harm” standard in recent general international law. Taking into account the principle of common but differentiated responsibilities, unclos uses flexible assessment criteria “as far as practicable”. Taking into account the principle of permanent sovereignty over natural resources, States have considerable discretion in adopting eia procedures. In addition, as far as procedural obligations are concerned, the unclos refers only to the obligations of “monitoring” and “publication” and does not involve obligations of cooperation, notification, communication, consultation and negotiation. However, the judicial practice of the Tribunal shows that the Tribunal has repeatedly referred to these procedural obligations. In other words, in considering specific cases, the Tribunal not only relied on article 206 of the unclos, but also invoked general international law to fill gaps and deficiencies in the unclos. States have greater discretion in marine environmental impact assessment and general environmental impact assessment, and can establish specific environmental impact assessment systems and rules through domestic legislation and bilateral or multilateral negotiations. In any event, States should exercise their discretion to meet the requirements of general international law.

­c hapter 8

Increasing Challenges to the Future Marine Environment Stephen A. Macko1 Abstract The current ocean system is presently being threatened by a number of chemical and physical forces unlike, perhaps, any previous period in the history of the Earth. These influences may result in modifications that suggest that the ecosystem on which we depend for our very existence may be irrevocably altered in the not too distant future. Additionally, certain of these modifications may even be suggested to have cascading effects that could alter entire ecosystems and result in the extinction of certain species, thereby affecting entire food webs. In this paper, certain of these principal influences are addressed to allow for a better appreciation of the global influence they impart. Chiefly, these effects are rising acidity resulting in enhanced hydrogen ion concentration and ocean acidity; the introduction of many tons of plastics into the ocean each year and finally, rising air temperatures causing increases in ocean temperatures. The result is diminished volume and area of sea ice, expansion of the ocean water volume and drowning of coastal (sea level rise) environments.

Keywords ocean –​acidification –​plastic pollution –​ocean temperature –​marine environment –​ marine pollution –​climate change



Introduction

The vast size of the ocean, covering 71% of the Earth’s surface, along with the lack of adequate understanding of the scope of pollutants entering the ocean, makes it difficult to evaluate long-​term implications for the 1 Professor, Department of Environmental Sciences, University of Virginia. Email: [email protected].

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_012

162 Macko introduction of the thousands of compounds that are released into the marine environment. The ocean influences nearly all activities on the planet, serving as a source of nutrition, energy and as a pathway for transport of resources while buffering the scale of variations in climate. It is also the portion of the planet that is perhaps in greatest need of data to address issues of the dramatic changes that are happening globally. Some of the changes are clearly the result of human inaction and lack of foresight. Fisheries, from which one sixth of human protein nutrition is derived, are in a state of near collapse for some species in the near term, owing to overfishing and mismanagement of a sustainable infrastructure. Lack of cautious application of new technologies and oversight has led to increasing levels of pollutants, sometimes catastrophically, as was evidenced in the recent Deepwater Horizon oil spill in the Gulf of Mexico.

Global Climate Change

Global warming is influencing many aspects of the ocean system and will have collateral impacts beyond simply raising the temperature of the planet. Navigation and influence on transport, and the loss of coastal zones are chief in envisioning eventual impacts, and need to be anticipated, based on the best of models and data. Sea level rise and the associated coastal erosion, modifying waterways and ports, call for adaptive planning. Climate change could easily be seen to affect ocean circulation, wind dynamics, storm production and associated storm surges. Loss of sea ice in the Arctic will open new avenues which are economically and energetically more efficient for transport. With warming, and heightened destruction of ice sheets will likely come increased hazards from sea ice in shipping lanes. The rate of loss of the ice sheets such as that of Greenland is only beginning to be understood, and appears to be increasing. Sea ice coverage in the Arctic was the lowest on record in the summer of 2012, and the area of surface melt on the Greenland Ice Sheet was recorded at its highest, at 97%, since satellite images have documented its status. The winter of 2016 saw the lowest level ever of the amount of sea ice at the end of the winter season.

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Fossil Energy Resources and Fisheries

Together with growing global population comes heightened demands for increased energy resources. New technologies for novel energy acquisition and sustainable energy production are rapidly growing and fulfilling part of this need. However, despite increased capacity from renewable energy resources as well as their increased efficiency in utilization, fossil fuels, notably coal, natural gas and oil, remain a reasonably inexpensive resource for providing most of the present needs and are expected to remain so for the foreseeable future. Oil demand alone is expected to grow by one to two percent per year for decades. As a result, continued exploration for petroleum in new regions of the planet is increasingly occurring. While advanced technologies are being vigorously pursued to allow for drilling the offshore in deeper waters, an alternate novel location for exploration and production is the Arctic. The Arctic includes a number of well-​defined regions that may contain up to 100 billion barrels of oil and trillions of cubic feet of natural gas, some in the form of gas hydrates. These resources may represent the largest of the World’s remaining untapped gas reserves and much of the undeveloped oil reserves. A significant portion of these reserves lie offshore on the shallow continental shelves of the Arctic, while a portion is suspected to exist in deeper waters. With global warming and diminishing sea ice in the Arctic, new avenues which are economically and energetically more efficient will open for exploration beyond the developing sea lanes. As a consequence of increased fossil fuel exploration, extraction and transport, the risk of contamination is heightened. At present only minimal preparation for impact and cleanup exists for this eventuality in fragile Arctic environments. Only through an appreciation for the past, in more forgiving locations, and a comprehensive understanding of the present fragile nature of the Arctic, can we anticipate the future. The potential for that vision of the ocean lies with cooperation among all nations. Diminishing ice cover will also influence an increase of fishing efforts as well as exploration for fossil fuels in the high Arctic. Without precise data on the sizes of fish stocks, the effects on commercial fisheries are complex, and begs for fundamental knowledge of the ocean environment. Additionally, with the loss of sea ice, diminishing ice-​based productivity may lead to a loss of diversity and modification of sustainable trophic structure in Arctic food webs. As a consequence of increased fossil fuel exploration, extraction and transport, the risk of contamination is heightened and at present only minimal preparation for impact and cleanup exists for this eventuality in the fragile Arctic environments.

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Ocean Acidification and Declining pH

The addition of massive amounts of carbon dioxide (ipcc, 2007) to the atmosphere and oceans, has changed the ocean’s chemistry, increasing the acidity or lowering the pH (Figure 8.1) Sound propagation in a more acid ocean may affect navigation as well as migration patterns of marine mammals and fish. Acidification influence on calcareous organisms at primary production levels could lead to catastrophic effects on the higher organisms of the food chains. The collateral impacts of the changing ocean in a period of global warming urgently require further study to enable adaptation and reduce vulnerability. Carbon dioxide levels in the atmosphere have now reached 400ppm. These levels are a direct consequence of the increased levels of carbon dioxide emissions by human activities including the burning of fossil fuels (Doney, 2006). With the increased atmospheric concentration of carbon dioxide have come increased levels of dissolved carbon dioxide in the ocean as marine waters scavenge the gas out of the atmosphere. This increases the amount dissolved in the ocean (Caldeira and Wickett, 2003). Over the past 100 years, the oceans have absorbed about one third of the carbon dioxide emitted by anthropogenic sources (Raven et al. 2005). This scavenging of the gaseous carbon dioxide can have great and predictable responses in the ocean water chemistry, affecting carbonate ion concentrations, calcite and aragonite mineral saturation levels and eventually influencing the pH of the ocean water. The ocean carbon cycle involves two forms of carbon: organic carbon and the inorganic carbon (Feely et  al. 2004; 2008). The inorganic carbon cycle is particularly relevant when discussing ocean acidification for it includes the many forms of dissolved CO2. When CO2 dissolves, it reacts with water to form ions from the dissolved carbon dioxide: carbonic acid (H2CO3), bicarbonate (HCO3−) and carbonate (CO32-​). The relative abundance of these species depends on factors such as seawater temperature and alkalinity (Figure 8.2; Turley, 2008; Tyrrell, 2008). Although the natural absorption of CO2 by the World’s oceans has helped mitigate the atmospheric climatic effects of anthropogenic emissions of CO2, it is believed that increased levels in the ocean have caused a decrease in pH of approximately 0.15 units on the pH scale (Doney, 2006; Table 1), or a 30% increase in acidity since this scale is logarithmic (Ridgwell et al. 2007). This increase will likely have negative consequences, primarily for oceanic calcifying organisms. These span the food chain from autotrophs to heterotrophs and include organisms such as coccolithophores, corals, foraminifera, echinoderms, crustaceans and molluscs. The “skeletons” of these organisms are composed of calcite and aragonite (mineral forms of calcium carbonate) and are stable in surface waters since the carbonate ion is at supersaturating

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­f igure 8.1  Recent historic changes in ocean pH. Oceanic pH values have remained relatively constant until the most recent time frame, with dramatic declines predicted as atmospheric carbon dioxide increases. national academy of sciences, 2003.

concentrations. However, as ocean pH falls further, so does the concentration of this ion, and when carbonate becomes undersaturated, structures made of calcium carbonate are vulnerable to dissolution (Feely et al. 2004). The ocean is approaching pH levels not seen in millions of years. Increasing ocean acidity will affect the vast majority of marine life (either directly or indirectly), but some of the first to feel the effects are shellfish, such as oysters. The slightest decrease of 0.1 units of pH has adverse repercussions on calcifiers. Acidification results in the water becoming unstable for calcium carbonate minerals that shellfish produce to make their shells. Without their protective shells, oysters are vulnerable and simply cannot live. Although the corrosion of their defensive shell seems enough to rapidly increase their death rate, the devastation of oysters from acidification goes even further (Waldbusser et al. 2011).

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­f igure 8.2  Chemical processes involved in Ocean Acidification. Relationships between pressure/​concentration of atmospheric carbon dioxide (pCO2), dissolved carbon dioxide in ocean waters (CO2(aq) and ocean pH. figure courtesy of nerc and the uk ocean acidification program

An important aspect of this “other carbon dioxide problem” is that, unlike models of climatic warming which are based on complex models of many forcings and feedbacks, heightened acidity, or lower pH of the ocean, is fairly predictable. The mechanisms for increasing acidity are well-​established, physical chemical processes: increasing of carbon dioxide in the atmosphere will increase the amount dissolved in the ocean. The pH of the ocean is dependent on the amount of the dissolved CO2. The “unknowns” are simply the levels that atmospheric carbon dioxide will reach, and the rate at which the surface ocean attains equilibrium with that level. As fossil fuels continue to contribute carbon dioxide to the atmosphere, the pH of the ocean will continue to decline. Most studies have found that coccolithophores, a type of planktonic algae, coralline algae, corals, shellfish, foraminifera, and pteropods all experience reduced calcification or increased dissolution under lower pH or elevated CO2 (Raven et  al. 2005). However, a few studies have suggested that with ocean acidification, the direction of the response, enhanced or declining, varies between species. While the full ecological consequences of these changes in

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calcification are still uncertain, it appears likely that many calcifying species will be adversely affected. Lower pH also appears to negatively impact non-​ calcifying larvae during planktonic stages, affecting hardening of chitin which results in increased mortality. Aside from calcification stress, organisms may suffer other adverse effects, either directly as reproductive or physiological effects, including CO2-​induced acidification of body fluids, or indirectly through negative impacts on food resources. With diminished calcifying planktonic organisms, the entire food resource may be disrupted, with a cascading effect up the food chain, should no other primary food source be readily available (Kleypas et al. 2006). A change in any part of the food web may have consequences on the rest of the food web, ocean biogeochemistry and the whole ecosystem. Such a modification has already been observed in the Antarctic: in the Southern Ocean globec study with diminishing krill, predators of krill have turned to alternate foods, with associated potential loss of energy from longer food chains or foods not supplying appropriate levels of essential biochemical nutrients. These more acidic conditions hinder growth of calcium carbonate shells and skeletons by many other marine plants and animals. Ocean acidification may also force some organisms to reallocate metabolic energy away from feeding and reproduction in order to maintain internal cell pH. It has even been suggested that ocean acidification will alter the acoustic properties of seawater, allowing sound to propagate further, increasing ocean noise and impacting animals that use sound for echolocation or communication. However, as with calcification, as yet there is not a full understanding of these processes in marine organisms or ecosystems. Leaving aside direct biological effects, it is expected that ocean acidification in the future will lead to a significant decrease in the burial of carbonate sediments for several centuries, and even the dissolution of existing carbonate sediments (Ridgewell et al. 2007; Turley, 2008). Inclusion of biological effects suggests that the ecosystem we know as the World’s ocean, an environment that provides one sixth of the protein consumed by human, is dramatically changing. Millions of species of marine organisms will be affected directly by acidity, others by modification of the food chains on which they depend. At the extreme, large numbers of those species could be lost. Ocean acidification has been seen to destroy ecosystems for marine life and the detrimental impacts are evident when looking at oysters. It is still not clear, however, how capable other carbonate organisms will be in responding to the heightened acidity. Some organisms may have a higher resilience against a rise in pH, and therefore may still thrive at least for a while. A  coral reef in the Western Pacific suggests that some calcifiers may be able to adapt. On Palau

168 Macko in the Western Pacific there exists high acidification, low aragonite saturation and yet from all appearances, a stable coral reef (Orr et al. 2005). Despite low pH, carbonate, and aragonite, coral reefs at Palau show high coral calcification, diversity, and cover. Calcification in different areas of this reef are shown to be comparable to reefs with both high and low calcification rates, demonstrating that even under the stress induced by these conditions, calcification can occur for at least one of the reef building species. Similar studies on the resilience of other reefs around the globe are also being conducted, including studies in the Eastern Tropical Pacific, Hawaii and near volcanic vents. Studies in Eastern Tropical Pacific reefs confirmed a general consensus that there would be reduced resilience of coral reefs in response to increasing carbon dioxide concentration (Kleypass, 2006). The Eastern Tropical Pacific reefs are in zones of upwelling with high CO2 and nutrient concentrations. However, research found that there was an abnormally low saturation of carbonate in this ecosystem, and as a result, these reefs would be more susceptible to bioerosion (Manzello et al. 2008). A further consequence of ocean acidification will be an impact on humans through declining fish harvests resulting in diminishing captures for nutrition and also lower revenues from those captures of shellfish or finfish as well as associated habitat loss including that which results in ecotourism benefits in areas like coral reefs. A study of US commercial fisheries (Cooley and Doney, 2009) attempted to constrain the economic effects of ocean acidification using anticipated increases in atmospheric carbon dioxide. The annual domestic commercial harvest of molluscs alone could ultimately be impacted sufficiently to lower revenues by billions of dollars.

Plastics, Microplastics and Other Ocean Debris

Marine debris is mainly discarded human rubbish which floats on, or is suspended in the ocean. Perhaps ninety percent of marine debris is plastic—​a component that has been rapidly accumulating since the end of World War ii (Plastics, 2014). With the continued release of plastic debris, presently thought to be around 10 million metric ton/​year, the total mass of plastic in the oceans will continue to accumulate, and has been suggested that it will soon become as massive as the weight of the fish in the ocean. Discarded plastic bags, six-​pack rings, and other forms of plastic waste which end up in the ocean present dangers to wildlife and fisheries. Aquatic life can be threatened through entanglement, suffocation, and ingestion. Fishing nets, usually made of plastic, can be left or lost in the ocean by fishermen.

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Known as ghost nets, these entangle fish, dolphins, sea turtles, sharks, dugongs, crocodiles, seabirds, crabs, and other creatures, restricting movement, causing starvation, laceration, infection, and, in those that need to return to the surface to breathe, suffocation (Jambect, et al. 2015). Macroscale plastics are increasingly disposed of into the coastal environment and affect all trophic levels of the ecosystem. While it is anticipated that within the next 25 years the mass of this discarded plastic may exceed that of fish in the ocean, only recently has the additional sheer volume of microplastic and nanoplastic debris been given the increased awareness of its potential impact (Andrady, 2011) The marine debris—​all of the trash and other solid material that enters the ocean—​threatens wildlife and marine habitats and presents health and safety concerns for humans. Trash and debris in coastal and ocean ecosystems also pose safety hazards and impose significant direct and indirect costs to society. Packaging and plastics consistently make up a significant percent of all marine trash. Preventing trash from entering the ocean presents a huge challenge due to the many sources, including municipal storm sewers, poor trash management by industrial and waste management facilities, disposal from vessels and offshore platforms, and littering by individuals in coastal and inland areas. The challenge is heightened by the fact that effective trash and litter prevention strategies require significant changes in the behavior of businesses, government entities, and individual citizens. Plastic refuse constantly threatens our global ecosystems. Entanglement, ingestion, and exposure to persistent organic pollutants are primary threats to biota. Although numerous reports of plastic threatening macroorganisms exist, concerns are mounting that species further down on the food chain face a similar fate with microplastics. The source of oceanic microplastics has previously been speculated to result from inland sources, often dismissing floating detritus material breakdown due to UV attenuation and lower temperatures in ocean waters. There is now evidence for a rapid, low-​temperature abiotic process producing micron-​sized plastic particulates due to interactions with UV radiation and seawater. These results are contrary to the current theory that the breakdown of plastic debris into smaller microplastic over the course of perhaps 100 to 1000 years. Since plastic may have been floating in the oceans for decades, it is alarming to consider that the amount of microplastics and nanoplastics present in the oceans are grossly underestimated. Global mass production of plastic has increased exponentially over the past several decades and shows no signs of slowing down, with approximately 300 million tons currently produced. Modern societies have not been able to handle the enormous wastes resulting from a dependence on these synthetic materials

170 Macko and as a result, an increased flux of plastic debris enters aquatic environments. Numerous investigations have recently highlighted the ingestion and entanglement of these polymers with marine and terrestrial macro and microorganisms. Speculation exists that some oceanic plastic debris is degraded by microbial communities due to observations of pitting along the surface of retrieved samples and an increase in bacteria present on samples compared to the surrounding waters. Plastic polymers have been previously considered resistant to biological attack owing to their high molecular weight and degree of crystallinity. Physical properties of these molecules include a high degree of water repellency and hydrophobicity. Of all the different plastic polymers, polyethylene has been considered the least reactive because of the lack of functional groups available for interaction with biological enzymes which reduces their likelihood of microbial degradation. Solid garbage also makes its way to the ocean: plastic bags, balloons, glass bottles, shoes, packaging material—​if not disposed of correctly—​almost everything thrown away can reach the sea. Plastic garbage, which decomposes very slowly, is often mistaken for food by marine animals. High concentrations of plastic material, particularly plastic bags, have been found blocking the breathing passages and stomachs of many marine species, including whales, dolphins, seals, puffins, and turtles. Plastic six-​pack rings for drink bottles can also choke marine animals. This garbage can also come back to shore, where it pollutes beaches and other coastal habitats. Many animals that live on or in the sea consume flotsam by mistake, as it often looks similar to their natural prey. Plastic debris, when bulky or tangled, is difficult to pass, and may become permanently lodged in the digestive tracts of these animals. Especially when evolutionary adaptions make it impossible for the likes of turtles to reject plastic bags, which resemble jellyfish when immersed in water. Turtles have a system in their throat to stop slippery foods from otherwise escaping, thereby blocking the passage of food and causing death through starvation or infection (Gregory, 2013). Plastics accumulate because they do not biodegrade in the way many other substances do. They will photodegrade on exposure to the sun, but they do so properly only under dry conditions, and water inhibits this process. In marine environments, photodegraded plastic disintegrates into ever-​smaller pieces while remaining polymers, even down to the molecular level. When floating plastic particles photodegrade down to zooplankton sizes, jellyfish attempt to consume them, and in this way the plastic enters the ocean food chain. Many of these long-​lasting pieces end up in the stomachs of marine birds and animals, including sea turtles, and black-​footed albatross. Plastic debris of all sizes tends to accumulate at the center of ocean gyres. In particular, the Great Pacific Garbage Patches have high levels of plastic

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particulates, suspended in the upper water column. In samples taken in 1999, the mass of plastic exceeded that of zooplankton (the dominant animal life in the area) by a factor of six. Midway Atoll, in common with all the Hawaiian Islands, receives substantial amounts of debris from the garbage patch. Ninety percent plastic, this debris accumulates on the beaches of Midway where it becomes a hazard to the bird population of the island. Midway Atoll is home to two-​thirds (1.5 million) of the global population of Laysan albatross. Nearly all of these albatross have plastic in their digestive system and one-​third of their chicks die. Toxic additives used in the manufacture of plastic materials can leach out into their surroundings when exposed to water. Waterborne hydrophobic pollutants collect and magnify on the surface of plastic debris, thus making plastic far more deadly in the ocean than it would be on land. Hydrophobic contaminants are also known to bioaccumulate in fatty tissues, biomagnifying up the food chain and putting pressure on apex predators (Oehlmann, et al. 2009). Some plastic additives are known to disrupt the endocrine system when consumed, others can suppress the immune system or decrease reproductive rates. Floating debris can also absorb persistent organic pollutants from seawater, including pcb s, ddt, and pah s. Aside from toxic effects, when ingested some of these affect animal brain cells similarly to estradiol, causing hormone disruption in the affected wildlife. A growing concern regarding plastic pollution in the marine ecosystem is the use of microplastics. Microplastics are little beads of plastic less than five mm wide. They are commonly found in hand soaps, face cleansers, and other exfoliators (Moore, 2001; Moore, 2003). When these products are used, the microplastics go through the water filtration system and into the ocean, but because of their small size they are likely to escape capture by the preliminary treatment screens on wastewater plants. These beads are harmful to the organisms in the ocean, especially filter feeders, because they can easily ingest the plastic and become sick. The microplastics are such a concern because it is difficult to clean them up due to their size, so humans must avoid using these harmful plastics by purchasing products that use better environmental materials. Plastic microfibers are a specific subset of a larger category of plastic pollutants called microplastics. Microplastics include plastic beads, formerly popular in personal care products, as well as small pieces of plastic that come from larger plastic items that have begun to degrade (Fendall and Sewell, 2009; Bomgardner, 2017). Owing to often undetectable size and long lifetimes, a large amount of these plastics are ending up in environments around the world. Natural phenomena carry these pollutants, like many others, to waterways and

172 Macko eventually the oceans. It is well-​known that much of the plastic products that are in use end up in huge floating trash islands, such as the Texas-​sized “Great Pacific Garbage Patch,” centered in ocean gyres. However, the undetectability of microplastics has allowed this problem to be unreported until recently (O’Connor, 2017). Their small size also causes them to be mistaken for food by many marine animals. An irregular shape, compared to plastic beads or other forms of plastic pollution, poses a threat to smaller, lower trophic level organisms. This causes microplastics to be spread through food chains, and perhaps even end up being consumed by humans (O’Connor, 2017). Additionally, plastic microfibers may be less than 5 mm long, and on the scale of tens of microns wide (Bomgardner, 2017). They are the synthetic, fibrous materials that are shed from synthetic clothing materials, like nylon, acrylic, and polyester (O’Connor, 2017). Microfibers are entering the environment through regular washing. The fibers escaping from washing machines are essentially the lint found trapped by dryers, however, washers have no method of capturing these fibers. Microfibers are washed down the drain, where they enter waste treatment plants. The filters in most waste water treatment plants, although they do collect 65 to 92 percent of microfiber pollution, are not fine enough to prevent substantial amounts of the smallest microfibers from passing through (O’Connor, 2017). This wastewater is then released to the surrounding environment where many plastics make their way into rivers and then the oceans (Derraik, 2002). There in fact exists evidence that even microplastics that are filtered out may make their way into the environment. The rationale behind this claim is that this wastewater is often used as agricultural fertilizer. Washing of synthetic apparel is just one route plastics take to the ocean. Microfibers could also be released into the atmosphere, where they could be brought to the ocean by rain, and there could be other industries besides apparel that contribute to microplastic pollution (Bomgardner, 2017).

Summary

The variety, scope and effects of marine pollution requires that we remain vigilant for protecting the ever-​ongoing threats to the diverse and fragile ecosystems of the ocean. Not only do we need to be aware of the present activities, but also insightful of new techniques and technologies which could introduce materials which could have devastating impacts at a minimum, locally, but potentially globally. The ocean is a primary source of human nutrition in 16% of human protein derived from its fisheries. The ocean is crucial in maintaining the heat budget of the planet. Changes to the pH of the ocean suggest

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that the very base of the food chain, the calcium carbonate containing phytoplankton will be seriously impacted. This will affect organisms higher on the food chain. In the search for future energy on, or transport materials across the continental shelves, especially in high Arctic there is a need to minimize the chance of accidents. We must be prepared for the near certainty of an accidental release of petroleum. Such an event would be devastating to the ecosystems, potentially forever, or be the cause for destruction of the last refuge of stressed organisms on the brink of extinction. And for some current perturbations we must address and find solutions while we still can: removing the ocean as a receptacle for our one use plastics and reducing the excess nutrients from coastal areas which cause the eutrophication and nearshore anoxia. This is not the challenge to accomplish these tasks. It is a requirement. We have no other option.

References

Andrady, A.L. “Microplastics in the Environment.” Marine Pollution Bulletin 2011, 62, 1596–​1605. Bomgardner, M. (2017) “The Great Lint Migration.” Chemical and Engineering News 95:16–​17. Caldeira, K.and Wickett, M.E. (2003). “Anthropogenic carbon and ocean pH.” Nature 425 (6956): 365–​365. Cole, M. et al. “Microplastics as Contaminants in the Marine Environment: A Review.” Marine Pollution Bulletin 2011; DOI 10.1016/​j.marpolbul.2011.09.025. Cole, M et al. (2013). “Microplastic Ingestion by Zooplankton.” Environmental Science and Technology 2013, 47(12); 6646–​6655. Cooley, S.R. and S. Doney (2009). “Anticipating ocean acidification’s economic consequences for commercial fisheries.” Environmental Research Letters 4 DOI 10.1088/​ 1748–​9326/​4/​2/​024007/​. Derraik, J. G. B. (2002). “The pollution of the marine environment by plastic debris: a review.” Marine Pollution Bulletin 44: 842–​852. Doney, S. C. (2006) “The Dangers of Ocean Acidification” Scientific American 294: 58–​65. Feely, R. A.; Sabine, C. L.; Hernandez-​Ayon, J. M.; Ianson, D.; Hales, B. (2008). “Evidence for Upwelling of Corrosive “Acidified” Water onto the Continental Shelf.” Science. 320 (5882): 1490–​2. Feely, R. A., Sabine, C. L., Lee, K., Berelson, W.L., Kleypas, J., Fabry, Victoria J., and Millero, F. J. (2004). “Impact of anthropogenic CO2 on the CaCO3 system in the oceans,” Science 305 (5682): 362–​366.

174 Macko Fendall, Lisa S.; Sewell, Mary A. (2009). “Contributing to marine pollution by washing your face: Microplastics in facial cleansers.” Marine Pollution Bulletin. 58 (8): 1225–​8. PMID 19481226. doi:10.1016/​j.marpolbul.2009.04.025. Gerlach, S. A. (1975) Marine Pollution, Springer, Berlin. Gregory, M. 2013. “Environmental Implications of Plastic Debris in Marine Settings—​ Entanglement, Ingestion, Smothering, Hangers-​on, Hitch-​hiking and Alien Invasions.” Phil. Trans. R. Soc. B. 2013, 364:2013–​2025. Intergovernmental Panel on Climate Change (2007). Fourth Assessment Report: Climate Change, 2007. Cambridge University Press, Cambridge, United Kingdom and New York, NY, usa. Jambeck, J. et  al. “Plastic Waste Inputs from Land into the Ocean.” Science 2015, 347(6223), 768–​771. Kleypas, J.A., Feely, R. A., Fabry, V.J., Langdon, C., Sabine, C.L. and Robbins, L.L (2006). Impacts of ocean acidification on coral reefs and other marine calcifiers: A guide for future research. Report of a workshop held 18–​20 April 2005, St. Petersburg, FL, sponsored by NSF, noaa, and the U.S. Geological Survey, 88 pp. Manzello, D. P., J. A. Kleypas, D. A. Budd, C. M. Eakin, P. W. Glynn, and C. Langdon (2008). “Poorly cemented coral reefs of the eastern tropical Pacific:  Possible insights into reef development in a high-​CO2 world,” Proc. Natl. Acad. Sci. U.S.A., 105: 450–​510. Moore, C. J.; Moore, S. L.; Leecaster, M. K.; Weisberg, S. B. (2001). “A Comparison of Plastic and Plankton in the North Pacific Central Gyre.” Marine Pollution Bulletin. 42 (12): 1297–​300. PMID 11827116. doi:10.1016/​S0025-​326X(01)00114-​X. Moore, Charles (2003). “Across the Pacific Ocean, plastics, plastics, everywhere.” http://​ www.naturalhistorymag.com/​htmlsite/​master.html? http://w ​ ww.​ naturalhistorymag.​ com/​htmlsite/​1103/​1103_​feature.html. National Academy of Sciences (2008). The ecological impacts of climate change. nas, Washington, DC, 28 p. National Academy of Sciences (2003). Oil in the Sea. National Academies of Sciences Press. O’Connor, M.C. (2017) “Microfibers are polluting our food chain.” https://​ www.theguardian.com/​sustainable-​business/​2017/​feb/​12/​seafood-​microfiber-​ pollution-​patagonia-​guppy-​friend. Oehlmann, J., U. Schulte-​Oehlmann, W. Kloas, O. Jagnytsch, I. Lutz, Kresten O. Kusk, L.Wollenberger, E.M. Santos, G. C. Paull, K. J.  W. Van Look, C. R. Tyler (2009). “A Critical Analysis of the Biological Impacts of Plasticizers on Wildlife.” Philosophical Transactions of the Royal Society B: Biological Sciences. DOI: 10.1098/​rstb.2008.0242. Office of Response and Restoration (noaa). (2017). “How Oil Harms Animals and Plants in Marine Environments.” http://​response.restoration.noaa.gov/​oil-​and-​chemical-​ spills/​oil-​spills/​how-​oil-​harms-​animals-​and-​plants-​marine-​environments.html.

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Orr, J. C.; Fabry, V. J.; Aumont, O.; Bopp, L.; Doney, S. C.; Feely, R. A.; Gnanadesikan, A.; Gruber, N.; Ishida, A.; Joos, F.; Key, R. M.; Lindsay, K.; Maier-​Reimer, E.; Matear, R.; Monfray, P.; Mouchet, A.; Najjar, R. G.; Plattner, G. K.; Rodgers, K. B.; Sabine, C. L.; Sarmiento, J. L.; Schlitzer, R.; Slater, R. D.; Totterdell, I. J.; Weirig, M. F.; Yamanaka, Y.; Yool, A. (2005). “Anthropogenic ocean acidification over the twenty-​first century and its impact on calcifying organisms.” Nature. 437 (7059): 681–​686. Plastics—​the Facts 2014/​2015 An Analysis of European Plastic Production, Demand, and Waste Data; Plastics Europe Research Market Group. http://​issuu.com/​ plasticseuropeebook/​docs/​final_​plastics_​the_​facts_​2014_​19122. Raven, J. A. et al. (2005). Ocean acidification due to increasing atmospheric carbon dioxide. Royal Society, London, UK. The Clyvedon Press Ltd. Ridgwell, A.; Zondervan, I., Hargreaves, J.C., Bijma, J. and Lenton, T.M. (2007). “Assessing the potential long-​term increase of oceanic fossil fuel CO2 uptake due to CO2-​ calcification feedback.” Biogeosciences 4: 481–​492. Selman, Mindy (2007) Eutrophication: An Overview of Status, Trends, Policies, and Strategies. World Resources Institute. Turley, C. (2008). “Impacts of changing ocean chemistry in a high-​CO2 world.” Mineralogical Magazine 72(1): 359–​362. Tyrrell, T. (2008). “Calcium carbonate cycling in future oceans and its influence on future climates.” J. Plankton Res. 30: 141–​156. Waldbusser, G. G., H. Bergschneider, R. Newell, E.P. Voigt, and M. A. Green. 2011. Biocalcification in the Eastern Oyster (Crassostrea virginica) in relation to long-​term trends in Chesapeake Bay pH. Estuaries and Coasts 34: 221. https://​doi.org/​10.1007/​ s12237-​010-​9307-​0. Zaikab, G.D. “Marine Microbes Digest Plastic.” Nature 2011; DOI 10.1038/​news.2011.191.

pa rt 3 Freedom of Navigation

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­c hapter 9

Freedom of Navigation: Where to Go When the Political Agenda Overshadows Legal Substance Nong Hong1 Abstract This paper outlines the perspectives of the United States and China in the South China Sea dispute, including their divergent legal interpretations on navigation regimes associated with the concept of freedom of navigation, and discusses the relationship between military activity and freedom of navigation. The debate on the legitimacy of military activities in a foreign country’s Exclusive Economic Zone reflects the competing interests of two groups, the user States and the coastal States inspired by the doctrine of Mare Liberum and Mare Clausum respectively. This paper compares the US Freedom of Navigation Operation Program (fonop) practice in the South China Sea and the Arctic. It raises a question: is the legal substance and function of freedom of navigation lost in translation when it has become a central point of major power competition and an instrumental role in broader strategic debates?

Keywords freedom of navigation  –​South China Sea  –​politics  –​intelligence gathering  –​ international relations –​ military activities –​hydrographic survey –​ warships

1

Introduction

The South China Sea has evolved from a territorial and maritime dispute between China (including Taiwan) and the four other claimant states to a matter primarily featuring the United States as a strong maritime power and a user-​state of the South China Sea, and China, as a growing regional 1 Dr. Nong Hong is Executive Director and Senior Fellow at the Institute for China-​America Studies. She is concurrently a research fellow with China Institute, University of Alberta, Canada, the National Institute for South China Sea Studies, and the China Center for

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_013

180 Hong maritime power struggling to pursue its maritime interests as a coastal State. China and the United States, both having legitimate interests in the South China Sea, have divergent views on several issues:  freedom of navigation, state practice of international law, their approaches to maritime dispute management, etc. The patrols performed by the US navy vessels [Lassen, Curtis Wilbur, and William P. Lawrence] in the South China Sea since 2015, stem from the US policy of testing freedom of navigation. Both China and the United States view freedom of navigation as vital to their national interests, but they differ on the proper exercise of that freedom in at least two ways. First, they disagree on whether certain types of military activities in coastal States’ Exclusive Economic Zones (eez s) falls within the scope of freedom of navigation. Second, while China and the United States do not contest the existence of a right of “innocent passage” in territorial seas under the 1982 United Nations Convention on the Law of the Sea (unclos), they differ on the specific rights of “warships”. This paper unfolds the perspectives of the United States and China on their divergent legal interpretation of navigation regime associated with the concept of freedom of navigation and discusses the relationship between military activity and freedom of navigation. The debate over the legitimacy of military activities in a foreign country’s eez reflects the competing interests of two groups, the user states and the coastal States inspired by the doctrine of Mare Liberum and Mare Clausum respectively. By comparing the US Freedom of Navigation Operation Program (fonop) practice in the South China Sea and the Arctic, the paper raises a question: is the legal substance and function of freedom of navigation lost in translation when it has become a central point of major power competition and an instrumental role in broader strategic debates? 2

Freedom of Navigation and unclos

Freedom of navigation, one of the oldest and most recognized principles in the legal regime governing ocean space, is a principle of customary international law providing that ships flying the flag of any sovereign state shall not suffer interference from other states, apart from the exceptions provided for

Collaborative Studies on the South China Sea, Nanjing University. The author’s PowerPoint may be viewed at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​beijing-​hong.pdf.

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in international law. unclos makes ample reference to the freedom of navigation, for example, in articles 17–​26, 36, 38, 52, 58, 78, 87.2 All these articles refer to the freedom of navigation which basically means freedom of movement of vessels. What distinguishes the freedom of navigation in the different zones of the sea is the different influence coastal States may exercise on the freedom of movement. Some coastal States require prior notification or permission for foreign warships when exercising innocent passage in their territorial seas.3 In the territorial sea, the United States believes that warships enjoy the same right to innocent passage as commercial vessels, while China mandates that flag State warships exercising innocent passage must obtain prior permission from coastal States.4 Article 87, paragraph 2 of unclos provides that the freedoms on the high sea shall be excised by all States with due regard for the interest of other States in the exercise of the freedom of the high seas. The limitations to the high seas freedom of navigation also apply in the eez regime. The sovereign rights granted to coastal States in the eez brought about the possibility of conflicts with the community interest of navigation. It may be argued that article 58 (3) of unclos creates two additional sources of legal limitations on the high seas freedom of navigation in the eez beyond those existing on the high seas. Robertson refers to the two sources as “incompatible uses authorized or actually conducted by the coastal State”5 and “laws and regulations adopted by the coastal State”6 that directly or indirectly affect the freedom of navigation in the eez.7 Additional limitations in the eez may include or be relevant to “incompatible uses”, “priority between competing uses”, “residual rights”, “naval maneuvers”, “coastal State’s laws and regulations”, “protection and preservation 2 United Nations Convention on the Law of the Sea (unclos) (Geneva: United Nations, 1982), available at http://​www.un.org/​depts/​los/​convention_​agreements/​texts/​unclos/​unclos_​ e.pdf. 3 For instance, Saudi Arabia asserts that innocent passage does not apply to its territorial sea where there is an alternate route through the high seas or an Exclusive Economic Zone (eez) which is equally suitable. Romania and Lithuania prohibit the passage of ships carrying nuclear and other weapons of mass destruction through their territorial seas. 4 Article 6 of China’s Law on the Territorial Sea and Contiguous Zone of 1992, (Beijing, 1992), available at http://​www.un.org/​Depts/​los/​LEGISLATIONANDTREATIES/​PDFFILES/​CHN_​ 1992_​Law.pdf. 5 Horace B. Robertson, “Navigation in the Exclusive Economic Zone”, Virginia Journal of International Law 24 (1984), p. 865. 6 unclos, Part v. Article 58 (3). 7 Horace B. Robertson, “Navigation in the Exclusive Economic Zone”, Virginia Journal of International Law 24 (1984), p.865.

182 Hong of the marine environment”, “iced-​covered areas”, “pollution from vessels and sovereign immunity”, and “marine scientific research”.8 3

Military Activities in eez s and Freedom of Navigation

The freedom of navigation existed across huge expanses of ocean space until the middle of the 20th century. At this time, States began to claim a greater number of rights over extended maritime zones in pursuit of their economic interests, which resulted in the creation of the eez in unclos.9 Another example was US President Truman’s 1945 Proclamation on the Continental Shelf, by which the United States asserted exclusive sovereign rights over the continental shelf’s resources, contributing to the creation of the Continental Shelf regime in unclos. The accumulation of coastal States’ rights over extended maritime areas had to be countered by the preexisting interests of third States to retain the freedoms of the high seas. A number of rules were adopted to balance the freedoms of navigation with the newly acquired rights of the coastal States. The means to resolve conflicts over these competing interests was an essential part of the overall regulation of the high seas in the eez and on the continental shelf. A number of questions arise from the interpretation of the scope of freedom of navigation, especially under the eez regimes: Does a state enjoy the same right of freedom of navigation in the eez of a foreign State as it does on the high seas? What kind of activities fall within the scope of freedom of navigation in the eez of a coastal State? Military activities in the eez were a controversial issue during the negotiations of the text of unclos and continue to be so in practice.10 Some coastal States such as Bangladesh, Brazil, Cape Verde, Malaysia, Pakistan and Uruguay contend that other states cannot carry out military exercises or maneuvers in or over their eez without their consent. Their concern is that such uninvited military activates could threaten their national security or undermine their

8 9 10

Frank-​Luke Attard Camilleri, The Application of the High Seas Regime in the Exclusive Economic Zone (New York, Toronto: Hamilton Books, 2018). Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005), p. 126. Mark J. Valencia and Kazumine Akimoto, “Guidelines for Navigation and Overflight in the Exclusive Economic Zone”, in Marine Policy 30 (2006), pp. 704–​711, p. 705, p. 704.

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resource sovereignty.11 Many developing coastal countries consider that those activities are prejudicial to their national security and therefore are not within the meaning of peaceful uses of the sea also stipulated by unclos. They argue that those activities clearly intended for military purposes are already non-​ peaceful and cannot be undertaken. Some States, including those in the Asia-​ Pacific region, have formulated unilateral legislation prohibiting or restricting intelligence gathering and military activities, including military exercises, by foreign naval and air forces in and above their eez. On the other hand, other States specifically state the opposite. Indeed, maritime powers, such as the United States, insist on the freedom of military activities in the eez out of concern that their naval and air access and mobility could be severely restricted by the global eez enclosure movement. Those activities are within the meaning and the exercise of the freedom of the sea, particularly the freedom of navigation and overflight, which are clearly recognized in unclos. As technology advances, misunderstandings regarding military activities, such as intelligence gathering in foreign eez s, are bound to increase. Military activities by foreign nations in or over others’ eez s are becoming more frequent due to the rise in the size and quality of the navies of many nations and due to technological advances that allow navies to better utilize oceanic areas. At the same time, coastal States are placing increasing importance on control of their eez s. Of the 1,700 warships expected to be built during the next few years, a majority will be smaller, coastal patrol vessels and corvettes, further suggesting coastal State emphasis on control of their eez s. The ambiguity and controversy regarding the legitimacy in a foreign country’s eez include various activities with a military nature, such as intelligence gathering activities, hydrographic survey, marine scientific research, military survey, and military maneuvers. 3.1 Intelligence Gathering Activities Traditionally, intelligence gathering activities have been regarded as part of the exercise of freedom of the high seas and therefore, through Article 58 (1), lawful in the eez as well. All major maritime powers have been routinely conducting such activities without protest from the coastal State concerned, unless they became excessively provocative. The US Navy expressly takes the

11

Hasjim Djalal, Alexander Yankov and Anthony Bergin, “Draft Guidelines for Military and Intelligence Gathering Activities in the EEZ and Their Means and Manner of Implementation and Enforcement”, in Marine Policy 29 (2005), pp.175–​183, p. 175.

184 Hong view that such activities are part of high seas freedoms.12 However, this position appears to be facing increasingly serious challenges as new, highly intrusive intelligence gathering systems are being developed and used by several military powers. Of particular concern are the increasing Electronic Weapons (EW) capabilities and the widespread moves to develop information warfare (IW) capabilities.13 Airborne Signals Intelligence (sigint) missions are often provocative as visible efforts to penetrate the electronic secrets of the targeted country. Indeed, important aspects of regional sigint and EW capabilities may invite attack, and thus encourage pre-​emption. Intelligence gathering activities in eez s are likely to become more controversial and more dangerous.14 In Asia, this disturbing prospect reflects the increasing and changing demands for technical intelligence; robust weapons acquisition programs, especially increasing electronic warfare capabilities; and widespread development of information warfare capabilities. Further, the scale and scope of maritime and airborne intelligence collection activities are likely to expand rapidly over the next decade, involving levels and sorts of activities quite unprecedented in peacetime.15 They will not only become more intensive; they will generally be more intrusive. They will generate tensions and more frequent crises; they will produce defensive reactions and escalatory dynamics; and they will lead to less stability in the most affected regions, especially in Asia.16 There also continues to be disagreement whether some forms of military intelligence gathering are scientific research and should be under a consent regime.17 The United States and other maritime powers argue that hydrographic and “military” surveys are distinct from marine scientific research and are, therefore, not restricted by the consent provisions of unclos. Other states argue that such surveys are a form of scientific research, or that they threaten the security of the state and should not be allowed in the eez without the coastal State’s consent. Indeed, some states have enacted national laws to this effect.18 12

Department of the Navy, The Commander’s Handbook on the Law of Naval Operations, 1995, Sections 2.4.2 and 2.4.3, quoted by Moritaka Hayashi, “Military and Intelligence Gathering Activities in the EEZ:  Definition of Key Terms”, in Marine Policy, 29 (2005), pp. 123–​137, p. 130. 13 D. Ball, “Intelligence Collection Operations and EEZs:  the Implications of New Technology”, Marine Policy, Vol. 28, No.1, January 2004, pp. 67–​82, pp. 28 and 30. 14 Mark J. Valencia and Kazumine Akimoto, “Guidelines for Navigation and Overflight in the Exclusive Economic Zone”, p. 705. 15 Ibid. 16 Ibid. 17 Ibid., p. 706. 18 Ibid.

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Also, some argue that because of the peaceful purposes provisions of unclos, at least some other military activities may not be permitted in the eez, such as the implanting of devices which are capable of rendering ineffective the defense of the coastal State. Can these new activities be categorized “other internationally lawful uses of the sea” related to the freedom of navigation and overflight? It appears that provisions of unclos are not adequate to regulate the use of these new EW and IW technologies by military vessels and aircraft. Thus, as Hayashi contends, it would be highly desirable for the question to be studied in depth with a view to working out a common understanding or agreement before serious incidents occur.19 3.2 Hydrographic Survey/​Marine Scientific Research/​Military Survey Marine scientific research, hydrographic surveying and military surveys all overlap to some extent. Some so-​called military surveys, particularly military oceanographic research, are virtually the same as marine scientific research, but a lot of military surveying is not, particularly that which constitutes intelligence collection and has no economic value. Some forms of military acoustic research may also have no commercial or economic value. Hydrographic surveying may be conducted both for civil and military purposes but the nature of the activity will be essentially the same regardless of the actual purpose of the surveys. Sam Bateman tries to make a distinction between hydrographic surveying and marine scientific research, particularly whether a State might undertake hydrographic surveys without the prior authorization of the coastal State.20 The controversy regarding the conduct of hydrographic surveys in an eez (and other types of “surveys” that are not resource related such as “military surveys”) was succinctly summed up in memorandum No. 6 issued by the Council for Security Cooperation in the Asia Pacific (cscap) on the Practice of the Law of the Sea in the Asia Pacific as follows: Different opinions exist as to whether coastal State jurisdiction extends to activities in the eez such as hydrographic surveying and collection of other marine environmental data that is not resource-​related or is not done for scientific purposes. While unclos has established a clear 19 20

Moritaka Hayashi, “Military and Intelligence Gathering Activities in the EEZ: Definition of Key Terms”, in Marine Policy, 29 (2005), pp. 123–​137, p. 130. Sam Bateman, “Hydrographic Surveying in the EEZ:  Differences and Overlaps with Marine Scientific Research”, in Marine Policy, 29 (2005), pp. 163–​174, p. 172.

186 Hong regime for marine scientific research, there is no specific provision in unclos for hydrographic surveying. Some coastal States require consent with respect to hydrographic surveys conducted in their eez by other States while it is the opinion of other States that hydrographic surveys can be conducted freely in the eez. Hydrographic data now has much wider application than just for the safety of navigation. It has many uses associated with the rights and duties of a coastal State in its eez. Trends over the years with technology and the greater need for hydrographic data have brought hydrographic surveying and marine scientific research closer together and similar considerations would now seem to apply to the conduct of hydrographic surveying in the eez as apply to the conduct of marine scientific research in that zone. The United States regards military surveying as similar to hydrographic surveying and thus part of the high seas freedoms of navigation and overflight and other international lawful uses of the sea related to those freedoms, and conducted with due regard to the rights and duties of the coastal State.21 The position of the United States is that while coastal State consent must be obtained to conduct marine, scientific research in its eez, the coastal State cannot regulate hydrographic surveys or military surveys conducted beyond its territorial sea, nor can it require notification of such activities.22 Similarly, the United Kingdom regards military data gathering (mdg) as a fundamental high seas freedom available in the eez.23 Other States, including China, have specifically claimed that hydrographic surveys might only be conducted in their eezs with their consent.24 A most serious challenge to the exemption of hydrographic and military surveys came from China, which reportedly enacted in December 2002 a law, elaborating on its 1998 law on the eez, stating that any “survey or mapping 21 22

23 24

unclos, Article. 56 (1). Thomas A.R., and Duncan J.C. (eds.) Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, International Law Studies. Vol. 73. (Newport, Rhode Island: Naval War College: 1999), p. 130; see also Bateman, “Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scientific Research”, p. 164. Bateman, “Hydrographic Surveying in the EEZ:  Differences and Overlaps with Marine Scientific Research”, p. 164. Ship and Ocean Foundation (sof) and East-​West Center (ewc), the Regime of Exclusive Economic Zone: Issues and Responses, A Report of the Tokyo Meeting (19–​20 February, Honolulu, East-​West Center, 2003), p. 7; see also Bateman, 2005; Department of the Navy, The Commander’s Handbook on the Law of Naval Operations, 1995, section 2.4.2.2.; also Hayashi, 2005, p. 131.

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activities” cannot involve State secrets or hurt the State, and that all such surveys must have prior permission.25 Earlier, in September 2002, China reportedly lodged a protest with the US Government charging that the usns Bowditch had conducted monitoring and reconnaissance activities without its approval in its eez. The vessel, according to press reports, was engaged in hydrographic surveys some 60 miles off the Chinese coast, and was buzzed by Chinese patrol planes and received threats to leave the area.26 China appears to believe that “military hydrographic survey” activities in the eez are, in a military sense, a type of battlefield preparation and thus a threat of force against the coastal State, thus violating the principle of peaceful use of the sea.27 Further clarification is needed as to the exact contents of the law and the intention of related pronouncements before making any judgment. But if the law requires all hydrographic surveys in its eez to obtain prior permission, it is clearly contrary to the strongly held position of the United States and could become a source of serious tension in the future. 3.3 Military Maneuvers Traditionally the freedom of the high seas included the use of the high seas for military maneuvers or exercises, including the use of weapons. This freedom has been incorporated in unclos, and it has been generally believed, particularly by maritime States, that this applies also to the eez. However, upon signing or ratifying unclos, several States, including Bangladesh, Brazil, Cape Verde, Pakistan, Malaysia and Uruguay, declared that such kind of military activities are not permitted in the eez without the consent of the coastal State.28 Sharply opposing declarations have been filed by Germany, Italy, the Netherlands and the United Kingdom.29 The United States has also taken the position that “military activities, such as … launching and landing of aircraft, … 25 “The Regime of Exclusive Economic Zone:  Issues and Responses”, A  Report of the Tokyo Meeting (19–​20 February, Honolulu, East-​West Center, 2003), p.  13; Hayashi, 2005, p. 131. 26 “The Regime of Exclusive Economic Zone:  Issues and Responses”, A  Report of the Tokyo Meeting (19–​20 February, Honolulu, East-​West Center, 2003), pp. 2–​12. 27 Ibid., p. 52–​3. 28 G. Galdorisi and A.  Kaufman, “Military Activities in the Exclusive Economic Zone:  Preventing Uncertainly and Defusing Conflicts”, California Western International Law Journal. Vol. 32, 2002, p. 272; Hayashi, 2005 p. 128. 29 UN Division for Ocean Affairs and the Law of the Sea, The Law of the Sea: Declarations and Statements with respect to the United Nations Convention on the Law of the Sea and to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (United Nations, 1997), pp. 29 (Germany), 31 (Italy), and 35 (Netherlands). Law of the Sea Bulletin, no. 35, p. 14 (United Kingdom).

188 Hong exercises, operations … [in the eez] are recognized historic high seas uses that are preserved by Article 58”.30 The US takes the view that the high seas freedoms include “task force maneuvering, flight operations, military exercises, surveillance, intelligence gathering activities and ordnance testing and firing”, and that “existence of the eez in an area of naval operations need not, of itself, be of operational concern to the naval commander”.31 Vukas says that the problem of the legality of military maneuvers and ballistic exercises which temporarily prevent other States from using a vast area of the high seas remains unresolved.32 While a simple naval maneuver can be considered to be associated with the freedom of navigation, Scovazzi argues that it would be more difficult to sustain that an extended test of weapons, such as launching torpedoes and firing artillery or the covert laying of arms within an eez, are to be included among the uses associated with the operation of ships, aircraft and submarine cables.33 Churchill and Lowe point out that it is not clear whether such activities as naval exercises involving weapons testing are included within the freedom of navigation and overflight and other internationally lawful uses of the sea related to them.34 Lowe has also contended that there are plausible arguments for the reference of a dispute over the legality of naval maneuvers and exercise to Article 59 on residual rights.35 It must be concluded from the foregoing that State practice and commentators are divided on whether military maneuvers, and particularly those involving use of weapons, in the eez of a foreign State without its consent are internationally lawful uses of the sea. Commentators tend to argue that naval exercises of reasonable scale without the use of weapons are permitted.

30 31 32 33 34 35

Message from the President of the United States transmitting unclos and the Agreement relating to the Implementation of Part xi of the unclos. Senate 103rd Congress, 2nd session, Treaty doc. 103–​39, p. 24, quoted by Hayashi, 2005, p. 129. Hayashi, 2005, p. 129; see also Department of the Navy, “The Commander’s Handbook on the Law of Naval Operations”, 1995, sections 2.4.2 and 2.4.3; Hayashi, 2005, p. 129. B. Vukas, “Peaceful Uses of the Sea, Denuclearization and Disarmament”, in R. J. Dupuy and D. Vignes (eds.) A Handbook on the New Law of the Sea (Dordrecht: M. Nijhoff, 1991), p. 1253. T. Scovazzi, “The Evolution of International Law of the Sea: New Issues, New Challenges”, Hague Academy Recueil des Cours, vol. 286, 2000, p. 167. Hayashi, p.  129; see also R.  Churchill, A.V. Lowe, The Law of the Sea, 3rd edition (Manchester University Press, 1999), p. 427. A. V. Lowe, “Rejoinder, Marine Policy”, vol. 11, 1987, p. 250.

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Clash of Freedom of Navigation and Coastal States’ Interests in the scs

The central disagreement between the United States and China is on the rights of military vessels in each of these zones. These disagreements hardly belong to the United States and China alone:  the US view is shared by the majority of unclos signatories, but China’s is held by approximately 27 other states. China has also codified its own interpretation through domestic law. Article 6 of China’s 1992 Law on the Territorial Sea and Contiguous Zone36 declares:  Non-​military foreign ships enjoy the right of innocent passage through the territorial sea of the People’s Republic of China according to law. To enter the territorial sea of the People’s Republic of China, foreign military ships must obtain permission from the Government of the People’s Republic of China. Article 11 of that eez law declares that other states enjoy freedom of navigation and overflight in China’s eez so long as they observe “international law and the laws and regulations of the People’s Republic of China”. The United States has strong interest in and is actively involved in East Asia, specifically in the South China Sea dispute. Skeptics have traditionally asked an important question:  Why should the United States care about a dispute among Asian countries in a region so far from the United States when there are far more pressing US foreign policy considerations? There are many elements to address this concern, one of which is freedom of navigation. The United States’ fonop challenges territorial claims on the world’s oceans and airspace that are considered excessive by the United States, using diplomatic protests and/​or by operational activities.37 The US government has repeatedly defined freedom of international navigation as one key aspect of its security concerns. For the US government, such freedom also includes that for the warships of the US Navy. Given the history of US military involvement in East Asia, US demands for innocent passage (i.e. without having to inform the governments of countries immediately bordering the ocean) of its warships is usually used as an assurance that none of the Asian governments can have the right to demand it.38 As such, the geography 36 37 38

English version of he Law on the Territorial Sea and the Contiguous Zone of the People’s Republic of China may be found at https://www.un.org/depts/los/LEGISLATIONAND TREATIES/PDFFILES/CHN_1992_Law.pdf For US protest on excessive claims over maritime space, read Roach, J. Ashley and Smith, Robert W., United States Responses to Excessive Maritime Claims (The Hague/​Boston/​ London: Martinus Nijhoff Publishers, 1994). Daojiong Zha, “Writing Security in the SCS”, working paper at International Studies Association Conference, Los Angeles, California, March 2000, at www.ciaonet.org/​isa/​ zhd01/​.

190 Hong of the South China Sea area means that its legal ownership and the right to use it are open for contention not just for the countries that directly border the water areas alone. Outside powers such as the US and Japan are equally important actors in the dispute due to their identification of possible threats to commercial and military interests. The United States holds that China’s excessive maritime claims in the South China Sea are adversely affecting freedom of navigation regional stability in Southeast Asia,39 while China argues that freedom of navigation is never a problem in that region. Two case studies are selected as follows, among many similar of this kind, to show the trend of clash of interest of maritime power and coastal States regarding the freedom of navigation. 4.1 2001 EP-​3 Incident On Sunday 1 April 2001, a US Navy EP-​3 surveillance plane collided with a Chinese F-​8 fighter jet in the airspace above China’s claimed 200-​mile eez. The accident resurrected arguments concerning, inter alia, state interpretation of Article 58 of unclos, and more specifically, whether the distinct legal regime created by the establishment of an eez has imposed limitations on “pre-​existing rights” on the high seas. It is almost impossible to draw any conclusion from the widely differing accounts of the collision.40 Both states alleged that the accident resulted from the dangerous maneuvers of the other states pilot. The only fact on which both states agreed was that the collision occurred over the scs, approximately 70 nautical miles from Hainan, in the airspace over China’s eez. Whilst the United States has officially complained to China, prior to this collision, about the “aggressive actions” of Chinese jets when intercepting US surveillance planes,41 the Chinese have also complained to the US about the presence, and increased frequency, of US surveillance flights over China’s eez.42

39

Brent E. Smith, “China’s maritime Claims in the SCS: The Threat to Regional Stability and US”, at http://​www.stormingmedia.us/​73/​7369/​A736983.html. 40 Eric Donnelly, “The United States–​ China EP-​ 3 incident:  legality and realpolitik”, Journal of Conflict and Security Law 2004 9(1):25–​42; doi:10.1093/​jcsl/​9.1.25 (http://​ jcsl.oxfordjournals.org/​cgi/​content/​abstract/​9/​1/​25). 41 “Who Caused the Crash?”, BBC News, at www.news.bbc.co.uk/​hi/​english/​world/​ asia~pacific/​>. 42 See D.  Rumsfeld, “Transcript:  Defence Department April 13 Special Briefing”, United States Embassy, available at http://​usembassy.state.gov/​toyko/​wwwhse0115.html.

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Chinese View First, the US military surveillance plane violated the principle of “free over-​ flight” according to international law,43 because the collision occurred in airspace near China’s coastal waters, and within China’s eez. According to article 58 (1)  of unclos all states enjoy freedom of over-​flight within this zone. However, at the same time, article 58 (3) stipulates that “States shall have due regard to the rights and duties of the coastal States”. The Chinese view was that the flight “posed a threat to the national security of China”, and that such flights went far beyond the scope of “over-​flight” and abused the principle of over-​flight freedom.44 Secondly, it was illegal for the US military plane to enter China’s territorial airspace and land at a Chinese airport without approval. The US plane’s action constituted an infringement upon China’s sovereignty and territorial space. Thirdly, according to Chinese domestic laws and international laws, China had the right to investigate the root cause of the incident, and the plane itself.45 US View First, the United States was engaging in traditional military activities over international seas, which are legally permissible, and was conducted with due regard to China’s rights and duties as a coastal State. Secondly, the EP-​3 made an emergency landing following the collision and was the sovereign property of the United States. It should therefore not have been boarded or examined in any way. Thirdly, maritime law dating back hundreds of years established a precedent of “safe harbor” for military vessels and their crews, in distress. Therefore, entering into Chinese airspace was not illegal,46 and the crew should have been returned to the United States without any delay. The validity of the legal arguments forwarded by both the US and China rest in part on their different interpretations of Article 58 of unclos. Article 58 provides that within the eez:

43

See Z. Bangzao, “Spokesman Zhu Bangzao Gives Full Account of the Collision Between US: Chinese Military Planes”, Embassy of the Peoples Republic of China in the US, available at http://​www.china-​embassy.org/​eng/​9585.html. 44 Ibid. 45 Ibid. 46 Indira A.  R. Lakshmanan, “Some see Double Standard in China Flap”, Boston Globe 18 April 2001, at http://​www.fas.org/​sgp/​news/​2001/​04/​bg041801.html.

192 Hong



Rights and duties of other States in the exclusive economic zone 1. In the exclusive economic zone, all States, whether coastal or land-​ locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.

The phrase “other internationally lawful uses”, and the incorporation of High Sea “rights” contained in articles 88–​115, were considered by the major maritime powers, including the US, to safeguard “pre-​existing rights” on the High Seas with regard to military operations involving ships and aircraft within the eez.47 However, the “freedoms referred to in Article 87 which regulate the freedom of the high seas, are subject to the restriction of ‘being compatible with other parts of this convention”.48 Thus the rights of “freedom of over-​flight” and “freedom of navigation” are subject to “being compatible” with Article 88 which limits the use of the high seas to “peaceful purposes”, and article 301 which reads: Peaceful uses of the seas In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.

47 Eric Donnelly, “The United States–​ China EP-​ 3 incident:  legality and realpolitik”, Journal of Conflict and Security Law 2004 9(1):25–​42; doi:10.1093/​jcsl/​9.1.25 (http://​ jcsl.oxfordjournals.org/​cgi/​content/​abstract/​9/​1/​25). 48 See O. Vicuna, The Exclusive Economic Zone (1989), p. 110.

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The issue is further complicated by the lack of definitions as to what constitutes “peaceful purposes”.49 In addition, Article 58 (3) provides that in exercising their rights and performing their duties in the eez, “states shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State” in accordance with the convention provisions and other rules of international law, in so far as they are not incompatible with Part v (on the eez). The Chinese argument is that US surveillance activities are not considered as a peaceful purpose. Such activities do not accord “due regard to the rights and duties of the coastal State” in that they threaten the security of China. Their argument is supported, in part, by declarations made by a number of states to the effect that provisions of the Convention do not authorize other states to conduct military exercises or maneuvers with the eez, without the consent of the coastal State.50 In turn, under Article 56 (2), the coastal State is required to have due regard to the rights and duties of other states in exercising its rights and performing its duties in the eez. Churchill and Lowe have stated that the effect of these declarations, if adopted, would be to “close off enormous areas of the seas for such routine military activities”.51 This attempt to balance rights and interests of states is restated in Article 59 of unclos.52 In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interest of the costal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. 49 For academic opinions see W.  Tetley, “The Chinese/​ US Incident at Hainan—​ A Confrontation of Super Powers and Civilizations”, pp.  1–​ 3, available at http://​ tetley.law.mcgill.ca/​spy.htm>; R. Wolfrum, “Military Activities on the High Seas: What Are the Impacts of the UN Convention on the Law of the Sea?”, in M. Schmitt and L. Green (eds.), The Law of Armed Conflict:  Into the Next Millennium:  US Naval War College, International Law Studies, vol. 71 (1998), ch. xix. 50 Declarations to this effect have been made by Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan and Uruguay, but see declarations of Germany, Italy, the Netherlands, and the United Kingdom, available at http://​www.un.org/​Depts/​los/​convention-​ agreeemtns/​convention-​declarations.htm. 51 See R.  Churchill and A.  Lowe, The Law of the Sea (Manchester:  Manchester University Press, 1988), p. 427. 52 Valencia and Akimoto, “Guidelines for Navigation and Overflight in the Exclusive Economic zone”, p. 705.

194 Hong But unclos gives no clear guidance either as to the meaning of “due regard” or what constitutes “equity”, other than “relevant circumstances”, and the respective importance of the interests involved to the parties as well as the international community as a whole. Thus, there are no specific criteria except, perhaps, that the activity should not interfere with the “rights and interest” of the states concerned. There is no agreement on what constitutes such rights and interests, nor is there agreement as to whether the interference must be unreasonable or not, and whether it could be or must be actual or potential. The different views have already resulted in several incidents in the eez  s of the Asia-​Pacific region. Major incidents include the March 2001 confrontation between the US Navy survey vessel Bowditch and a Chinese frigate in China’s eez; the April 2001 collision between a US EP3 surveillance plane and a Chinese jet fighter over China’s eez; the December 2001 Japanese Coast Guard pursuit of and firing at a North Korean spy vessel in its and China’s eez; the clash between Chinese vessels and a US ocean surveillance ship in China’s eez in 2009; and Vietnam’s protest against Chinese live fire exercises in Vietnam’s claimed eez in 2015. 4.2 2016 uuv Incident The December 2016 incident involving a US unmanned underwater vehicle (uuv)53 was neatly wrapped up in the same month after China returned the vehicle. The legal debate that arose during the uuv incident focused on three aspects: the legitimacy of the Chinese action, whether the uuv enjoyed sovereign immunity, and the legal status of the location where it was seized. First of all, the Pentagon said that the uuv had been “unlawfully seized”.54 China defended its action as having been taken “in order to prevent the device from causing harm to the safety of navigation and personnel of passing vessels”.55 Second, the Pentagon stated,56 and James Kraska and Raul Julian Borger, “Chinese Warship Seizes US Underwater Drone in International Waters”, The Guardian, December 16, 2016, https://​www.theguardian.com/​world/​2016/​dec/​16/​ china-​seizes-​us-​underwater-​drone-​south-​china-​sea. 54 US Department of Defense, “Statement by Pentagon Press Secretary Peter Cook on Incident in South China Sea”, December 16, 2016, https://​dod.defense.gov/​News/​News-​ Releases/​News-​Release-​View/​Article/​1032611/​statement-​by-​pentagon-​press-​secretary-​ peter-​cook-​on-​incident-​in-​south-​china-​sea/​. 55 Sam LaGrone, “China Promises to Return Snatched Unmanned Navy Glider”, USNI News, December 18, 2016. https://​news.usni.org/​2016/​12/​18/​ china-​promises-​return-​snatched-​unmanned-​navy-​glider. 56 US Department of Defense, “Statement by Pentagon Press Secretary Peter Cook on Return Of U.S. Navy UUV”, December 19, 2016, https://​dod.defense.gov/​News/​News-​Releases/​ News-​Release-​View/​Article/​1034224/​statement-​by-​pentagon-​press-​secretary-​peter-​ cook-​on-​return-​of-​us-​navy-​uuv/​. 53

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Pedrozo57 argued in depth, that the uuv is a “sovereign immune vessel of the US Navy which was conducting routine operations in the international waters of the South China Sea”.58 The opposing argument59 relates to the legal question of whether the “sovereign immunity” provided in Article 32 of the United Nations Convention on the Law of the Sea (unclos) extends to drones or any other equipment deployed from state vessels.60 Third, the location where China seized the uuv was referred61 to by the United States as “international waters”, in which it claims to enjoy unrestricted rights to exercise freedom of navigation. From the littoral States’ perspective, however, this location is within the eez of the Philippines, a maritime zone in which the scope of freedom of navigation does not necessarily equal the freedoms that Article 87 of unclos provides on the high seas. The debate about the presence of the United States Coast Guard (uscg)in the South China Sea might be another point of friction between the United States and China. On November 29, 2016, Admiral Paul Zukunft,62 the uscg commandant, spoke at the Brookings Institution about sending uscg ships to the South China Sea to maintain regional order. From the US perspective, as uscg vice commandant Charles Michel has argued,63 there is reason to think that China might respond more positively to uscg white hulls than US Navy cruisers and destroyers, and that the coast guard can more easily maneuver the “narrow door of diplomacy”.64 However, the argument that the uscg should

57

James Kraska and  Raul Pedrozo, “China’s Capture of U.S. Underwater Drone Violates Law of the Sea”, Lawfare, December 16, 2016, https://​www.lawfareblog.com/​ chinas-​capture-​us-​underwater-​drone-​violates-​law-​sea. 58 Ibid. 59 Mark Valencia, “The US-​China Underwater Drone Incident: Parsing the Legal Aspects”, IPP Review, January 10, 2017, http://​ippreview.com/​index.php/​Home/​Blog/​single/​id/​ 325.html. 60 Ibid. 61 US Department of Defense, “Statement by Pentagon Press Secretary Peter Cook on Return of U.S. Navy UUV”, December 19, 2016, https://​dod.defense.gov/​News/​News-​Releases/​ News-​Release-​View/​Article/​1034224/​statement-​by-​pentagon-​press-​secretary-​peter-​ cook-​on-​return-​of-​us-​navy-​uuv/​. 62 Elizabeth Shim, “U.S. Commandant: Coast Guard Could Play Broader Role in Asia-​Pacific”, UPI, November 30, 2016, https://​www.upi.com/​Top_​News/​World-​News/​2016/​11/​30/​US-​ Commandant- ​Coast- ​Guard-​could-​play-​broader-​role-​in-​Asia-​Pacific/​5501480528590/​ ?fs. 63 Ryan Pickrell, “US Coast Guard Eager for Deployment to the Highly-​contested South China Sea”, Daily Caller, December 1, 2016, https://​dailycaller.com/​2016/​12/​01/​us-​coast-​ guard-​eager-​for-​deployment-​to-​the-​highly-​contested-​south-​china-​sea/​. 64 Ibid.

196 Hong have a more visible presence in the South China Sea highlights a misunderstanding about coast guard roles and thereby risks increasing the chance of conflict with China and possibly other claimant states, especially Indonesia and Malaysia. In addition, if the uscg’s presence in the South China Sea aims, as the uscg commandant claims, at working with coast guards of regional allies and partners to enforce those countries’ laws, this is also legally problematic. This is a problem of international rather than domestic law. US experts have suggested in Track 2 settings that uscg activity in the South China Sea is not prohibited by domestic law, and in any case, Congress would likely ratify this proposal if doing so would enhance the security of maritime trade routes. However, to conduct law enforcement activities, such as boarding fishing boats on behalf of regional partners, the uscg would need the authority and jurisdiction to operate in relevant waters. This would likely be worked out through bilateral agreements with relevant countries, which would require recognition of those countries’ territorial claims—​something the United States has been unwilling to do so far. Likewise, even in uncontested waters that fall within the absolute sovereign control of a coastal State, critics of the uscg will argue that a foreign state’s law-​enforcement activities will impinge on the sovereignty and jurisdiction of the coastal States, which has been a long-​standing concern for some countries in Southeast Asia. Strong opposition from Malaysia and Indonesia to the Regional Maritime Security Initiative proposed by Admiral Thomas Fargo, the former US Pacific Commander, is a typical example. Hence, it is very likely that the uscg’s contributions in Southeast Asian waters will be limited to capacity building, without extending into active law enforcement. 5

US Approach to FoN in the South China Sea

The United States insists on the freedom of military activities in the eez out of concern that their naval and air access and mobility could be severely restricted by the global eez enclosure movement. The preservation of military activities in eez s will continue to be of paramount importance to the United States and is a source of continuing friction with coastal States that seek to expand their authority in their eez s. Beginning in October 2015 (see Figure  9.1), as part of the US fonop, US Navy ships have patrolled in the South China Sea aiming at challenging China’s

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claim.65 66 The guided-​missile destroyer uss Lassen sailed within 12 nautical miles of reclaimed-​land islands in October 2015.67 Two other US ships have followed: the uss Wilbur Curtis sailed within 12 nautical miles of Triton Island in the  Paracel Islands  in January 2016, and the  uss  William P.  Lawrence  came within 12 nautical miles of Fiery Cross Reef in the Spratly Islands in May 2016.68 All these recent developments suggest that the competition between China and the United States has become a salient feature of the geopolitics of the South China Sea. One of the root causes is the structural contradiction between an established power and an emerging one, encompassing competition for geopolitical strategic advantage, sea power, and dominance over the international order in East Asia. This competition will continue to intensify as a result of China’s rise and the United States’ comprehensive strategic adjustment in the Asia-​Pacific. Although the Trump administration has not yet clearly expressed its South China Sea policy, from the perspective of some Chinese analysts the United States has sent signals that it will bolster its military presence in the region. Even after Secretary Mattis softened his position, China does not seem to take this as persuasive due to the uncertainty inherent in Trump’s Asia policy. The Navy Times reported on February 12 2017 that “the Navy is planning fresh challenges to China’s claims in the South China Sea”,69 which would be a clearer indication of the Trump administration’s future policy direction than the statements currently offered by top officials. 6

US Approach to FoN in the Arctic

There are two important shipping routes in the Arctic. The shipping shortcuts of the Northern Sea Route (over Eurasia) and the Northwest Passage (over 65 66 67 68

69

Michael Green, Bonnie Glaser & Gregory Poling, “The U.S. Asserts Freedom of Navigation in the South China Sea”, Asia Maritime Transparency Initiative/​Center for Strategic and International Studies (October 27, 2015). “US Navy carries out third FONOP in South China Sea”. The Interpreter. Lowy Institute for International Policy. May 10, 2016. Andrea Shalal and David Brunnstrom, “U.S. Navy destroyer nears islands built by China in South China Sea” Reuters (October 26, 2015). “US Navy carries out third FONOP in South China Sea”. The Interpreter. Lowy Institute for International Policy, May 10, 2016. See also Nick Bisley, “We should think carefully about an Australian FONOP in the South China Sea”, The Interpreter, Lowy Institute for International Policy (February 4, 2016). David B. Larter, “The Navy is Planning Fresh Challenges to China’s Claim in the South China Sea”, Navy Times, February 12, 2017, https://​www.navytimes.com/​news/​your-​navy/​2017/​ 02/​12/​the-​navy-​is-​planning-​fresh-​challenges-​to-​china-​s-​claims-​in-​the-​south-​china-​sea/​.

198 Hong North America) would cut existing oceanic transit times by days, saving shipping companies—​not to mention navies and smugglers—​thousands of miles in travel. As Daniel Rothwell notes,70 the legal status of the Northwest Passage as a shipping route “was relatively uncontroversial for much of the 20th Century”, primarily due to the lack of interest in commercial navigation through the passage as a result of challenges associated with ice conditions. In 1969, the voyage of the SS Manhattan, an icebreaking supertanker, from the Beaufort Sea through the Northwest Passage to the Davis Strait, changed the situation. Canada perceived the United States as ignoring its sovereignty by conducting these voyages through “Canadian waters”. Faced with public pressure to reaffirm that sovereignty, Canada adopted a number of measures, including enactment of the Arctic Waters Pollution Prevention Act, the extension of the Canadian territorial sea from 3 to 12 nautical miles, and the modification71 in 1970 of Canada’s acceptance of the compulsory jurisdiction of the International Court of Justice, which placed a bar on any attempt by the United States to challenge Canada’s actions before the court with regard to the Arctic. The United States considered the Manhattan voyage “an exercise of navigational rights and freedoms not requiring prior notification” to Canada. From the US perspective, shipping and navigation are critical to the economic development of Alaska, and its strategic interests across the Arctic as a whole also rely heavily on the concept of freedom of navigation. The legal status of the Northwest Passage has been the subject of disagreement between Canada and the United States ever since then. In recent decades, the two sides have reached an understanding regarding their respective positions. The 1988 Agreement on Arctic Cooperation stipulates that the Unites States, without compromising its legal position on the status of the Northwest Passage, must seek Canadian consent for icebreaker navigation through the passage. However, as the route becomes increasingly free of ice, eventually the United States might wish to reassert its position on freedom of navigation and take a more robust position. With the unclos at the center of the Arctic shipping legal regime, two critical issues have emerged in recent years. The first is that whilst the United

70 71

Donald R.  Rothwell, Arctic Ocean Shipping:  Navigation, Security and Sovereignty in the North (Leiden: Brill, 2018). Declaration recognizing as compulsory the jurisdiction of the International Court of Justice, in Conformity with Article 36, paragraph 2, of the Status of the International Court of Justice, New York, 7 April 1970, United Nations Treaty Series, No. 10415, p. 3, available at https://​treaties.un.org/​doc/​Publication/​UNTS/​Volume%20724/​volume-​724-​ I-​10415-​English.pdf.

Freedom of Navigation

­f igure 9.1  US fonop s in the South China Sea Timeline

199

200 Hong States has not formally adopted the unclos by way of accession, it maintains the position that it adheres to the Convention and seeks to uphold its obligations whilst also enjoying its rights. In this respect the United States position vis-​à-​vis the Northwest Passage, where it asserts certain rights, and the Bering Strait, where it acknowledges its obligations, highlights the position faced by the United States with respect to the law of the sea and these pivotal Arctic shipping routes. The second is that by accepting the Arctic Ocean is also subject to the same navigational rights and freedoms for shipping as other oceans it follows that these are rights which can be enjoyed by the ships of all states. This means that states that have not traditionally had a strong Arctic presence will be able to enjoy navigational rights and freedoms throughout the Arctic. In particular, states such as China, Japan and South Korea will all be able to gain access to Arctic shipping routes and enjoy recognized freedoms of navigation. While this development may raise issues, what can be confidently asserted is that the international law with respect to Arctic shipping is well developed and sufficient. The  Northern Sea Route is a  shipping route officially defined by Russian legislation as lying east of Novaya Zemlya and specifically running along the Russian Arctic coast from the Kara Sea, along Siberia, to the Bering Strait. The entire route lies in Arctic waters and within Russia’s eez. Russia has argued against international strait status by requiring permission of the Administration of the nsr to navigate, break ice and have pilot maintenance in these waters. One more argument for Russia’s approach is Article 234 of unclos. By the end of the 2013 summer navigation period, more than 570 permissions for passage in the nsr had been issued by the Northern Sea Route Administration (nsra). The 2012 Law contains a new version of Article 14 that describes the nsr as “a historically developed national transportation communication of the Russian Federation” with navigation in the water to be carried out in accordance with the universally recognized principles and norms of international law, international treaties to which the Russian Federation is a party, and the provisions of the national legislation of Russia.72 Admiral Paul Zukunft, Former Commandant of the US Coast Guard claimed that the Northern Sea Route should be a transport corridor open to the entire world community.73 However, he also admitted that the US Armed Forces still do not intend to conduct operations in the Arctic to uphold the principle of 72 73

Russia Federal Law No. 132-​FZ of July 28, 2012 http://​www.nsra.ru/​en/​ofitsialnaya_​ informatsiya/​zakon_​o_​smp.html. Russia Today, “US Demands Shared Use of Russia’s Northern Sea Route”. RT International. April 12, 2018. https://​www.rt.com/​business/​423913-​northern-​sea-​route-​us/​.

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freedom of navigation, as is done in the South China Sea.  “There is currently no pressure to conduct exercises for the freedom of navigation in the Arctic, but … the US approach is that the Northern Sea Route should be open as an international water corridor for, let’s say, a transit passage—​as we see this area is being cleared of ice”.74 7

Future of FoN: When Legal Substance Is Overshadowed by a Political Agenda

The motivation of US freedom of navigation operations in the South China Sea and the Arctic shares some similarities—​competing interests of littoral States and user States. However, it takes different approaches in exercising its freedom of navigation operations—​high politics in the South China Sea and low politics in the Arctic, which is determined by its perception about the geopolitical significance of the respective littoral States. In the Arctic, even though the United States does not agree with Canada and Russia on the legal status of the Northwest Passage and the Northern Sea Route, it does not view the different legal position as a factor impacting the geopolitical architecture in the Arctic. The South China Sea is a different story. The US New National Defence Strategy75 issued on January 19, 2018 kicked off a new round of preview exercise on the United States-​China relations. In conjunction with this are the US National Security Strategy76 announced in December 2017 and the “Indo-​Pacific” concept raised frequently by US President Donald Trump during his visit to Asia in November 2017 and repeatedly echoed by his foreign policy team subsequently, which all seem to suggest, at least from the US perspective, US policy toward China has reached a transition point from “engagement with competition” commonly shared during US previous administrations to “competition with possible confrontation”. The US-​led fonop s seem to have a spill-​over effect. The hms Albion, a 22,000 ton amphibious British warship carrying a contingent of Royal Marines

74 Ibid. 75 US Department of Defense, “Summary of the 2018 National Defense Strategy of the United States of America: Sharpening the American Military’s Competitive Edge”, January 19, 2018, https://​www.defense.gov/​Portals/​1/​Documents/​pubs/​2018-​National-​Defense-​ Strategy-​Summary.pdf. 76 The White House, “National Security Strategy of the United States”, December 18, 2017, https://​www.whitehouse.gov/​wp-​content/​uploads/​2017/​12/​NSS-​Final-​12-​18-​2017-​ 0905.pdf.

202 Hong is reported to exercise its “freedom of navigation” rights as it passed near the Paracel Islands on August 31 2018.77 This happened when Albion was on its way to Ho Chi Minh City, where it docked  after a deployment in and around Japan. China condemned Britain of engaging in “provocation” and dispatched a frigate and two helicopters to challenge the British vessel. Both sides remained calm during the encounter. The operation of Albion seems to send a responding signal to what the British Defense Minister vowed in the annual Shangri La security dialogue in June 2018 backing78 US-​led efforts to challenge China in the disputed South China Sea. Both French and British defense ministers indicated in July 2017 and May 2018 that their navy ships will conduct “freedom of navigation” operations in the region.79 France and the UK are not the only two extra-​regional states whose South China Sea policy is tied up to FoN. Australia is a staunch advocate of freedom of navigation and overflight and is supportive, but not openly involved in joint fonop s-​related activities so far. Despite the open support for the US Freedom of Navigation Operations, Japanese Prime Minister Shinzo Abe has explicitly stated that the Japanese Maritime Self Defense Force (jmsdf) will not be directly engaged in fonop s. Freedom of navigation and overflight in the South China Sea has always been of significance to India, but it has not shown any intention so far for a joint freedom of navigation operation called upon by the United States. Scholars have been very serious on dealing with the divergent legal interpretations mentioned above. The Ocean Policy Research Institute (formerly Ocean Policy Research Foundation) organized a series of international conference “Regime of the Exclusive Economic Zone—​Issues and Responses” four times from 2003 to 2005 inviting experts to make a guideline on navigation and overflight in the eez. At the final conference, participants adopted a proposal titled Guidelines for Navigation and Overflight in the Exclusive Economic Zone

77

78 79

Tim Kelly, “Exclusive: British Navy Warship Sails near South China Sea Islands, Angering Beijing”, Reuters, September 5, 2018, https://​www.reuters.com/​article/​us-​britain-​china-​ southchinasea-​exclusive/​exclusive-​british-​navy-​warship-​sails-​near-​south-​china-​sea-​ islands-​angering-​beijing-​idUSKCN1LM017. “France, UK announce South China Sea freedom of navigation operations”, Navaltoday. com June 6, 2018. https://​navaltoday.com/​2018/​06/​06/​france-​uk-​announce-​south-​ china-​sea-​freedom-​of-​navigation-​operations/​. Choong, William. “South China Sea: bringing power to bear”. IISS. Retrieved 5 June 2018. https://​www.iiss.org/​blogs/​analysis/​2018/​06/​south-​china-​sea-​power.

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(Guidelines) as the result. However, the participants did not reach consensus that the Guidelines should be reached out to the policy makers of the countries involved for their consideration. Considering seven years have elapsed since the Guidelines were published and the security environment of the seas in East Asia has drastically changed, oprf organized the two-​year study project for reviewing the Guidelines in the year of 2012 and 2013. As the result, the Principles for Building Confidence and Security in the Exclusive Economic Zones of the asia-​pacific was drawn up by the participants of the project. However, with more and more actions taken by extra-​regional states in the name of FoN, including the recent Albion operation, the focus of the public debate on FoN has been shifted from serious legal implications to a broader geopolitical discourse. The reason that freedom of navigation or freedom of the seas has become a central point of major power contention and regional concern is not, as we have seen, because of the actors’ differing legal interpretations. Rather, it is because a more powerful China now has the capabilities to match the alternative view it has long held, and unclos gives us an appropriate vocabulary with which to describe the resultant changes that are taking place in the maritime domain. In the years to come, freedom of navigation and freedom of the seas will almost certainly remain touch stone principles in Asia—​but this will not be because coastal and user States are grappling with competing unclos interpretations. Rather, it will be because the question of what constitutes the high seas and who has access to them has become a paramount geostrategic question of the twenty-​first century. Hence, a question has to be asked: is the legal substance and function of freedom of navigation lost in translation when it has become a central point of major power competition and has an instrumental role in broader strategic debates? 8

The Way Forward for United States–​China Relations in the South China Sea

Despite all the legal and political divergence, one should not be too pessimistic about the future of the United States–​China relationship in the South China Sea. The two countries have carefully managed their differences in a way that reflects their respective national interests without triggering the nerves of the other. In 2016 the United States increased the frequency of its naval patrols in and outside the 12-​nautical-​mile zones of the Spratly and Paracel Islands under the name of innocent passage and freedom of navigation, without challenging China’s sovereignty claims. Compared with its strong reaction to the 2001 EP-​3

204 Hong incident and the 2009 Impeccable incident, during which a strong nationalism dominated public discourse, China reacted with low-​profile official protests, without objecting to the doctrine of freedom of navigation itself. The behavior of the United States and China reflects the political willingness of both countries to keep the South China Sea dispute under control and to enhance maritime cooperation despite these divergent views. The uuv incident in 2016 that involved a U.S. unmanned underwater vehicle in the South China Sea could not have been resolved in six days without the prior military trust-​building efforts made by both countries. Both sides have learned from the 2001 EP-​3 incident, the 2009 usns Impeccable encounter, and the recent underwater drone incident how best to manage crises at sea. Current crisis-​management mechanisms between the two countries—​such as the memoranda of understanding (mou) on “Notification of Major Military Activities” and “Rules of Behavior”—​are playing a crucial role in dealing with emergencies and preventing the escalation of tensions arising from unplanned and unwanted incidents at sea or in the air. China and the United States should seek to preserve good faith and a positive spirit in their military relations, despite the divergence in their legal views on maritime issues. As far as the South China Sea dispute is concerned, they should maintain interactive military relations in order to guard against misjudgment, reduce confrontation, and manage and control crises. Both countries should endeavor to avoid escalation stemming from confrontations or tensions triggered by frequent US freedom of navigation operations or the Chinese construction of military facilities on the reclaimed features in the Spratly Islands. China and the United States share interests in maintaining peace and stability in this region and further enhancing maritime cooperation on nontraditional security issues. The benefits of such efforts should not be underestimated and call for both countries to remain calm, guard against misinterpretation, and expand channels for military exchange and communication. Both countries should also advance existing crisis-​management mechanisms based on the principles of the United States-​China Military Maritime Consultative Agreement and the two mou s signed in 2014 so that such mechanisms can play a greater role in the future. In order to resolve this paradox, China and the United States have no choice but to engage with each other and maintain regular consultations on how they can coexist with their respective core interests. After all, the Asia Pacific is big enough for both countries to share and exert their respective influence without constantly being at each other’s throats. While China’s rise stands a good chance of triggering a regional power shift, the United States needs to acknowledge China’s rise and its core interests. Similarly, China must respect

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the legitimate interests of the United States in the South China Sea, especially freedom of navigation in line with unclos, which in any case is also in China’s common interest. What would work practically in the favor of both countries is to explore the fields of developing maritime cooperation between China and the United States. Joint efforts in anti-​piracy in the Gulf of Aden have provided one successful example. Providing search and rescue at sea and humanitarian assistance would be areas for both countries to take a lead in this region with their naval capacity. It will be in China and the United States’ interests to initiate a regional mechanism in line with the safety and security of navigation, e.g. an Incidents at Sea Agreement (incsea) or a Code for Unplanned Encounters at Sea (cues) in this region. As Admiral Paul Zukunft, former Commandant of the US Coast Guard commented on April 12, 2018 in an event at the Center for Strategic & International Studies, “If you want to build trust and confidence in another nation, do not start with freedom of navigation exercise. Start with something humanitarian in nature such as search and rescue, such as environmental ­protection”.80

80

The event titled as “A Conversation with Admiral Paul F. Zukunft, Commandant, U.S. Coast”, could be found at https://www.youtube.com/watch?v=yczrtqaEHEg

­c hapter 10

An Archival History of the Creation and Early Implementation of the Freedom of Navigation Program James Kraska* Abstract In recent years Freedom of Navigation (fon) operations have become a regular feature of US naval operations in the South China Sea, drawing attention to a once obscure national security initiative to ensure free and open uses of the seas. This contribution to the volume mines declassified US government correspondence and, in particular, a major National Security Council Study completed by the administration of President Carter, to explore the US rationale for creation of the fon program and assess its early implementation. The chapter helps form a clearer image of the creation of the fon program and how it was implemented in its first half-​decade.

Keywords freedom of navigation –​excessive maritime claims –​United Nations Convention on the Law of the Sea –​policy –​military



Historical Foundations

The US view of the international law of the sea emerged from the progeny of legal doctrine on freedom of the seas championed by Dutch jurist Hugo Grotius in the early-​seventeenth century, which gradually made its way into Dutch, English and American legal thought.1 Under the US understanding of * Chairman and Charles H. Stockton Professor of International Maritime Law, Stockton Center for International Law; Visiting Professor of Law and John Harvey Gregory Lecturer on World Affairs, Harvard Law School. The author’s PowerPoint is available at https://​colp.virginia.edu/​ sites/​colp.virginia.edu/​files/​beijing-​kraska.pdf. 1 Hugo Grotius, The Rights of War and Peace 420, 462 (Richard Tuck ed., A. C. Campbell trans., 2005).

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_014

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the doctrine, the international law of the sea crystallized around the idea that no state may purport to claim ownership over the high seas.2 While Grotius is best known for his successful challenge of Iberian claims to the Strait of Malacca in Southeast Asia, he also pressed England to relinquish claims over waters closer to home. The modern law of the sea dates from Spanish and Portuguese claims in the Treaty of Tordesillas3 and Dutch resistance to them. The struggle for recognition of coastal State claims over the oceans reached its zenith in the law and politics of Europe in the seventeenth century, when the Dutch and English sparred over King James i’s proclamation of exclusive fisheries rights over a large but indeterminate area of the North Sea.4 Grotius led a Dutch delegation to Britain, where for the first time on record coastal State jurisdiction was linked to the range of a cannon.5 The disputes generated the First and Second Dutch Wars, which were fought to a stalemate, and underscore how maritime disputes can easily erupt into armed conflict. While the Anglo-​Dutch Wars gradually shifted the center of power from the Netherlands to England, they also produced the modern concept of the territorial sea—​that marginal sea area that lies under coastal State sovereignty.6 By the time of the Seven Years’ War, the cannon shot rule and the three-​ mile limit to the territorial sea had gained widespread acceptance, replacing more subjective methods for determining coastal State jurisdiction, such as the “sounding test,” which stipulated that deep water sounding indicated high seas because it was suitable for navigation, and the “vision test,” which counted within the territorial sea any area of the ocean from which land was visible while at sea.7 This latter formula was notoriously unreliable, as visibility along the coast is affected by fog and other weather patterns, as well as whether a ship’s look out was at the waterline or high in the mast. 2 This principle is set forth in the United Nations Convention on the Law of the Sea (unclos), which states: “No State may validly purport to subject any part of the high seas to its sovereignty.” Article 89, United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/​CONF.62/​122 (1982), 1833 U.N.T.S. 3, 397, 21 i.l.m. 1261 (1982) [hereinafter unclos] (entered into force Nov. 16, 1994). 3 Treaty between Spain and Portugal concluded at Tordesillas; June 7, 1494 (Ratification by Spain, July 2, 1494. Ratification by Portugal, September 5, 1494), reprinted in Frances Gardiner Davenport, European Treaties Bearing on the History of the United States to 1648, at 84 (Washington, DC: The Carnegie Institution of Washington, 1917). 4 D. P. O’Connell, Thomas Gray Memorial Lecture: The Law of the Sea, 124 J. Royal Society of Arts 367, 368 (June 1976). 5 Id. 6 Id., at 369. 7 Id., at 371.

208 Kraska The lack of codification of coastal State jurisdiction persisted into the twentieth century. The Hague Conference of 1930 was unable to reach agreement on the breadth of the territorial sea, dooming efforts to create the first comprehensive, multilateral treaty on the law of the sea.8 Exclusive coastal State claims to the oceans accelerated after World War ii and formed the fulcrum of negotiations at the Third UN Conference on the Law of the Sea (unclos iii), held from 1973–​1982. These negotiations were marked by deep divisions among competing constituent negotiating blocks, including the major maritime powers and the Group of 77. The lack of agreement among states typified the incoherence into which oceans diplomacy had fallen.9 With rules for coastal State sovereignty and jurisdiction offshore uncertain and many states adopting unilateral standards, the freedom of navigation (fon) program emerged during this period to tangibly demonstrate US non-​acquiescence of excessive claims being advanced at the UN Conference.10 While the creation of the program was a direct result of the disagreement over navigational freedoms so evident in the conference, it was also the culmination of decades of coastal State challenges to US naval operations. Prior to the commencement of the Conference there were numerous and accelerating claims to extended jurisdiction in the oceans.11 In the decade preceding the Conference, the United States had addressed unlawful maritime claims through a series of ad hoc “protest sailings” to protect the right of freedom of navigation. In 1966, for example, three US Navy warships conducted operations in the Black Sea for the purpose of exercising freedom of navigation.12 The ships passed without incident, although Soviet air and naval forces monitored their activity. From January 10–​13, 1966, Soviet surface and air forces 8

First Report Submitted to the Council by the Preparatory Committee for the Codification of the Conference, 24 Am. J. Int’l L. Supp. Off. Doc. 1 (Jan. 1930) and Second Report Submitted to the Council by the Preparatory Committee for the Codification of the Conference, 24 Am. J. Int’l L. Supp. Off. Doc. 3 ( Jan. 1930). 9 O’Connell, supra note 4 at 374. 10 To underscore the complexity of the negotiations, many states had two or more interests at stake in the negotiations. The United States typified this position, being at once the greatest maritime power while also the largest coastal State, and a state with an extensive (broad) continental margin and a keen interest in a market-​based deep seabed mining regime. 11 Christine Dodson to Vice President Mondale, nsc Staff Secretary memo, Navigational and Overflight Policy Paper, February 1, 1979, p. 3, 18 pp. Walter Mondale Papers. Law of the Sea Policy Review, 2/​2/​1977 to 2/​12/​1977, Container 94. The Jimmy Carter Presidential Library. [Hereinafter, “nsc Staff Secretary memo”]. 12 W. W. Rostow, Memorandum for the President, Black Sea Operations by US Naval Vessels, February 16, 1967.

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shadowed the uss Yarnell and Forrest Royal beginning shortly after they entered the Black Sea until they exited the Bosporus Strait. Less than a month later the uss Corey arrived in the Black Sea and patrolled for three days. Then on May 23, 1966, the uss Waccamaw was harassed by a Soviet destroyer as it transited the Dardanelles bound for Istanbul. The Soviet destroyer fixed a constant bearing on the US ship, which was forced to divert to avoid a collision. These relatively placid interactions were routine, but occasionally coastal States would react unpredictably—​sometimes with tragic results. The attacks on US warships in the Gulf of Tonkin in 1964 led Congress to issue a “blank check” to President Johnson, pulling the United States into the Vietnam War.13 Even as the Vietnam War raged, North Korea’s capture of the uss Pueblo in 1968 had a profound effect on the risks of assuming sea lines of communication would always be open during peacetime on the strength of accepted norms.14 The seizure of the SS Mayaguez by Khmer Rouge forces in 1975 further underscored the vulnerability of US ships.15 As the United States pursued a universally-​accepted regime at unclos iii it also became aware of the need to impose legal and diplomatic costs on states that unilaterally attempted to deny US forces customary navigational rights. The fon program was a departure from the past because it was a formal and systematic effort to get out of reaction mode and stay ahead of challenges to the presence of US warships and military aircraft. In 1979 the National Security Council (nsc) initiated a study of navigation rights and American interests toward the freedom of the seas, which was conducted by the nsc Law of the Sea Working Group on Navigational Freedom and Security Interests.16 The definitive study was presented to the nsc and was declassified in 2013 and for the first time is publicly available as a source for scholarship, and included as an appendix to this chapter.17 The fon program was created against the backdrop 13

14 15 16 17

Lyndon B.  Johnson, President’s Message to Congress, H.  Doc. 333, 80th Congress, 2d Session, Department of 51(1313) State Bulletin 262 (1964). See also Robert J. Hanyok, Skunks, Bogies, Silent Hounds, and the Flying Fish: The Gulf of Tonkin Mystery, August 1964, 19 Cryptologic Quarterly 4–​6 (Winter 2000/​Spring 2001) (Top Secret, Declassified, Feb. 24, 1998). Robert Newton, The Capture of the USS Pueblo and Its Effect on SIGINT Operations (Fort George G.  Meade, Md.:  Center for Cryptologic History, National Security Agency, 1992). Minutes of the National Security Council Meeting, May 12, 1975, U.S. State Dept., Foreign Relations of the United States, 1969–​1975, vol. 10, Vietnam (Washington, DC: Office of the Historian, n.d.), 977–​85. nsc Staff Secretary memo, supra note 11, at 3. DoD Instruction S-​2005.01, “Freedom of Navigation (FON) Program (FON),” October 20, 2014 and DoD Instruction C-​5030.44, “Significant Military Exercises and Freedom of Navigation Assertions in Politically Sensitive Areas (U),” October 12, 2005.

210 Kraska of the Informal Composite Negotiating Text (icnt), adopted on July 15, 1977, which had resolved most of the major issues concerning coastal State jurisdiction and freedom of navigation.18 Yet while the icnt adequately captured the balance of interests between coastal States and maritime states over offshore areas adjacent to the shoreline, in 1977 its fate was uncertain. The icnt was subsequently revised at the Ninth Session of the Conference in 1980 to produce informal text for a draft convention that would be adopted two years later as the United Nations Convention on the Law of the Sea.19

The Third UN Conference

The Conference negotiations themselves contributed to a greater awareness of extended coastal State jurisdiction and the potential benefits to the coastal State in accruing them. This had the effect of accelerating exclusive claims as states rushed to get on record with the maximum scope of their claims. As the conference unfolded some states begin to moderate their claims consistent with the evolving consensus developing at the Conference, while others hardened their positions in the hope of extracting a better deal. The trendline for exclusive claims was going in the wrong direction. By 1979, for example, of the 131 independent coastal States, only twenty, including United States, claimed a three nautical mile territorial sea.20 Eight states claimed a territorial sea greater than three miles but less than 12 miles. Some seventy-​five states claimed a 12-​nm territorial sea, which became the prevailing standard. Twenty-​eight states claimed a territorial sea greater than 12 nm, some as much as 200 nm from shore. Excessive territorial sea claims were particularly pernicious because they threatened to enclose more than 100 straits used for international navigation, potentially choking global commerce and undermining the movement of naval forces. Once the territorial sea was extended to 12 nm, certain strategic and economically vital straits such as Gibraltar, Bab el Mandeb, Dover, Malacca and Hormuz, became overlapped by the territorial sea—​impeding passage in the normal mode for warships, submarines and aircraft. In addition to the geographic or horizontal expansion of the territorial sea, states also added additional legal requirements on to the regime of innocent passage that were 18 19 20

U.N. Doc. A/​CONF. 62/​W.P.10 (1977) (icnt). See icnt arts. 17–​59, 86–​96 and 193–​234. UN Doc. A/​CONF.62/​WP.10/​Rev.2 (1980); UN Doc. A/​CONF.62/​WP.10/​Rev.3 and Add.1 and Corrs. 1–​6 (1980). nsc Staff Secretary memo, supra note 11.

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unacceptable to the United States. These “vertical” claims included prior notification or authorization for passage by warships, nuclear powered ships, and oil tankers. The problems of overreaching on state competence over the territorial sea extended into the adjacent contiguous zone. The traditional contiguous zone recognizes coastal State competence regarding customs, immigration, sanitary (health and quarantine), and fiscal matters. The US understanding of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone was that the contiguous zone could extend to a maximum of 12 nm from the baseline. Some 39 states claimed a zone of 12 nm or less, yet by 1979, 23 states claimed a contiguous zone broader than 12 nm. Some states claimed broader competence in the contiguous zone than was recognized in the 1958 Convention or in customary international law, including jurisdiction over security matters. Such claims directly undermined the uses of the sea for national defense. All of the coastal State maritime zones were measured from normal or straight baselines. The United States confronted the expansion of baseline claims, which included claims of historic waters, as far as 300 miles from shore. Within these newly enclosed historic internal waters, claimants did not recognize high seas freedoms, undercutting global mobility. The United States engaged with Canada, for example, in 1967 concerning straight baselines.21 The US position dated to the late-​nineteenth century, when it stated that Hudson Bay was not a closed sea or mare clausum, but open to navigation of ships from all nations.22 The US government also took the same position within the American Federal system against individual states, prevailing at the US Supreme Court against state straight baseline claims made by Alaska and Louisiana, which had made broad historic waters claims of their own at the expense of Federal rights offshore.23 In 1976, Secretary of State Henry Kissinger called the Third UN Conference underway in New York one of the most important international negotiations that had ever taken place.24 He set forth proposals to strengthen the instrument being negotiated and called freedom of the seas basic to the security and well-​being of most nations. Kissinger warned that unless competitive 21 22 23 24

Dep’t of State Memo of Conversation, Law of the Sea: Canadian Plans for Drawing Straight Baselines, May 22, 1967. Thomas Willing Balch, Is Hudson Bay a Closed or an Open Sea?, 6 Am J.  Int’l L.  409 (Apr. 1912). See United States v. Alaska, 422 US 184, 189 (1975), United States v. Louisiana, 394 US 11, 23–​24 n.27 (1969) and United States v. California, 381 US 139, 172–​74 (1965). Sec’y of State Henry A. Kissinger, Speech before the Foreign Policy Association, US Council of the International Chamber of Commerce and the UN Association of the United States, Apr. 8, 1976.

212 Kraska practices and exclusive claims were harmonized, they would bring an era of unrestrained commercial rivalry, mounting political turmoil, and eventually military conflict. The treaty was an unprecedented opportunity for nations of the world to devise the first truly global solution to a global problem. Urgent necessity touched upon basic issues underlying the long-​term stability and prosperity of the globe. The treaty was no less than a milestone in the struggle to submit man’s endeavors to the constraints of international law. The second session of the Third UN Conference on the Law of the Sea met in Geneva from March 17 to May 10, 1975, and the United States was hopeful that the Conference would produce a comprehensive and widely accepted treaty that would avoid international conflict and harm to US vital interests, which might otherwise result from unilateral claims to broad areas of the ocean. The United States believed that without the stability that would accompany such a broad agreement, it was doubtful whether the potential of the world’s oceans would be realized. Foremost, the United States sought to maintain freedom of navigation for submarines, surface vessels, military aircraft, and oil tankers, through over and under straits used for international navigation. The United States also sought to safeguard other strategic capabilities, such as the sosus anti-​submarine detection system. The United States wanted a treaty to provide stability in access to ocean resources, and to protect the marine environment and facilitate oceanographic research. The US position was developed among sixteen departments and agencies that conducted full review of a menu of options that reflected the nation’s very broad political, security, and economic interests in the oceans. The overall American strategy was to achieve a broad settlement, promoting oceans use through a multilateral convention that could meet the needs of the major maritime powers and also appeal to developing countries, encouraging broad adherence. Since any treaty at the time required the participation of the Soviet Union, Japan, the United Kingdom, France, and the United States, these major maritime powers quietly coordinated to develop common positions and negotiating tactics at the Conference. The broad outlines of an agreement emerged at Caracas in 1974, although a number of major differences remained. For example, while there was wide support for a 12-​mile territorial sea and general agreement on transit rights through straits used for international navigation, there was no consensus on what these transit rights should be. At the time, most states agreed that coastal States would have virtually complete rights over resources, including fisheries and seabed minerals, within a 200-​nm Exclusive Economic Zone (eez), and that freedom of navigation and overflight would be preserved in the zone. There was also agreement on the creation of a new international organization

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to manage deep seabed mining, but the United States and other developed countries disagreed with developing states on the extent and nature of the competence that that organization would have. Although the United States had long recognized a three-​nm territorial sea, it had agreed to support a 12-​nm territorial sea provided that there was international agreement on unimpeded passage or free transit through straits used for international navigation. There was virtual consensus in the conference in support of a 12-​nm territorial sea with a 200-​nm EEZ. Some straits states favored a right of innocent passage in straits, which the United States viewed as hampering US strategic mobility and the international supply of oil. The regime of innocent passage does not include the rights of submerged transit or overflight. Other states attempted to limit passage to commercial vessels or require prior notification of transit of warships. Similarly, the United States advocated for high seas rights for other uses in what would become the eez to protect the sosus system for the detection of submarines. The United States also supported protection of the marine environment and marine scientific research in the fisheries zone, although these two regimes proved less than optimal in the final treaty. Compulsory settlement of disputes was a central feature of the American position, as such a mechanism would protect the treaty from erosion through strained interpretations and avoid conflicts that could otherwise lead to international incidents, such as the “Cod War” between Iceland and the United Kingdom. Thus, the US negotiating agenda and the fon program should be viewed as part of a common strategy for shaping global norms, rather than thinking of them in terms of unrelated lines of effort. These equities were set forth in exhaustive detail in an nsc study, which formed the intellectual framework for the fon program.

The “Definitive” fon Study

In early 1979 the Carter administration completed a “definitive” study of navigation rights and American interests toward the freedom of the seas.25 The study was prepared by the nsc Law of the Sea Contingency Planning Group on Navigation and presented on February 1. The Planning Group considered what US policy should be regarding the protection of navigation, overflight and related national security interests in the oceans in the absence of a comprehensive law of the sea (los) treaty acceptable to the United States. 25

nsc Staff Secretary Memo, Appendix i of this paper.

214 Kraska The paper set forth the scope of essential American interests in commercial and military navigation, overflight and related national security interests at sea. The study also outlined how unilateral measures by some coastal States to extend various forms of national jurisdiction beyond traditionally recognized limits, singley and in combination, posed a challenge to traditional high seas freedoms. The United States was concerned that unilateral measures to extend various forms of national jurisdiction beyond traditionally recognized limits posed a challenge to access to the global commons.26 The nsc paper also outlined how the United States was distinct among major powers, situated in a rather unique geographic position.27 The country is separated from most of its major allies and trading partners by vast oceans. The United States is connected to its allies in nato by the Atlantic Ocean and its bilateral treaty alliances in Asia with Japan, Australia, Thailand, the Philippines, and South Korea, by the Pacific Ocean. While the United States maintains an enviable geopolitical distance from any major threat emanating from Europe or Asia, it is also uniquely dependent upon sea lines of communication and air support and resupply of land forces in the event of conflict in those theaters. In particular, the deployments of the US Sixth Fleet in the Mediterranean Sea and the US Seventh Fleet in the Western Pacific serve as concrete expressions of American commitment, provide a constabulary presence, and reassure allies. The study found it important for American forces to be able to range throughout the oceans, including the Arctic Ocean and the Indian Ocean. Then, as now, such deployments to other areas are critical to ensure military readiness and familiarity with various areas, contingency planning and to serve as a stabilizing deterrent. Naval forces are used to gather intelligence throughout the world by means of warships, aircraft and ocean instruments, which even at that time included sosus and now are becoming increasingly autonomous. The study emphasized that maritime intelligence collection is a stabilizing peacetime activity, rather than a threat since it broadens transparency. The study also viewed free navigation as a facilitator for the global economy, with sea lines of communication protecting the economic interests of producers and consumers, as well as shippers and carriers. Far-​flung US commercial 26

27

The Department of State disavows the term “global commons” as inaccurate. This chapter embraces the term to mean not just areas beyond national jurisdiction, such as outer space and the high seas, but also areas within national jurisdiction or even under national sovereignty, such as the territorial sea, in which other states have certain access rights. See Harold Hongju Koh, Note to the Secretary, Global Commons, Oct. 19, 2010. nsc Staff Secretary memo, supra note 11.

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interests demands open sea lanes of communication to protect and foster trade. Economic interests include transportation of oil and natural gas in ships and through undersea pipelines, and the free flow of information via undersea cables. As the top country in civil aviation in terms of technology, millions of tons of cargo carried, and the number of passengers and overflights, the United States is also dependent on freedom of overflight over the oceans. Thus, the United States has a paramount interest in the maintenance of a civil aviation regime that facilitates efficient, economical, and safe air transport in the airspace above the seas according to universal rules that are respected by all states.

Early Implementation of the fon Program

The study was released on February 1, 1979. On March 20 of that year, President Carter’s National Security Adviser, Zbigniew Brzezinski, directed the Department of Defense (DoD) to develop a plan to implement the study’s recommendations in order to tangibly exercise navigational rights. In a letter to the Secretaries, Brzezinski stated that the Pentagon should consult with the Department of State on how to demonstrate non-​acquiescence to excessive maritime claims through creation of a fon program. This directive was remarkable because it situated the DoD as the lead agency, rather than the Department of State. In addition to this action, the Pentagon should take operational planning into consideration and demonstrate US navigational rights in areas that might not otherwise be covered. These areas include South America and West Africa. In doing so, DoD was required to keep the Department of State and the nsc informed. This approach suggests independent Pentagon authority to conduct FON operations, subject only to coordination with the Department of State, and seemingly without coordination with the White House. Furthermore, the Departments of State and Defense were directed to jointly and severally “keep detailed records of all actions taken” and to maintain a ledger of US state practice, which forms customary international law. Such records would include the text and date of diplomatic protests against illegal claims, the track and transit or overflight of US forces in areas subject to illegal claims, and the units involved in the operational assertion. The records should be consolidated every six months and forwarded to the nsc. They should exceed the current information on fon operations, which include only the country with the illegal claim and the fact that it was challenged at some point in the previous fiscal year. It is likely that the information on fon operations was restricted over the years in order to avoid providing strategic intelligence to coastal States with illegal claims. For example, by identifying ships or aircraft units and the dates

216 Kraska that they conducted a fon, a coastal State may be able to more effectively position its forces to respond, or to create an incident that would place at risk the security of US forces or cast the fon operations in a bad light. The Pentagon did not waste any time implementing the new orders. On March 20, the National Security Adviser tasked DoD to operationally assert U.S rights through warship transits and aircraft overflights in areas where excessive maritime claims were maintained.28 The nsc also directed the DoD to deliver to it a six-​month plan of exercises, transits and overflights no later than April 25, 1979. These units should be supported by pre-​positioned forces, such as warships over-​the-​horizon, or be capable of providing for their own self-​defense should the coastal State attempt to impede the fon operation. The Joint Staff reported that between April 15 and November 1, 1979, the armed forces conducted 14 fon operations, which are set forth in Table 10.1. In March 1979, Brzezinski directed DoD to develop a plan implementing the decision to exercise these rights on the high seas. The plan emerged from the Joint Chiefs of Staff and was approved by Brzezinski, and it was based on military operations to show the flag and to demonstrate American resolve. Four months later, the Joint Chiefs sent directives to Navy and Air Force commanders instructing them to approach up to three miles of coastal States with warships and military aircraft. On July 31, Brzezinski was briefed that beginning the next day, the American Embassy in Jakarta would shift from written notification to oral notification regarding American warships sailing through Indonesian claimed waters.29 Beginning on September 1, 1979, notifications would cease, in accordance with the recommendations of the nsc Navigation and Overflight Committee. The fon program was formally established on August 10, 1979. President Carter ordered the Navy and Air Force to undertake a policy of deliberately sending warships and military aircraft into and over the disputed waters of nations that claimed a territorial sea of more than three nautical miles. President Reagan took office in January 1981, and the Reagan administration continued us fon operations. On August 12, 1981, the US Sixth Fleet began exercises in the Mediterranean Sea and entered into the Gulf of Sidra off the shores of Libya. The aircraft carriers uss Nimitz (cvn 68) and uss Forrestal (CV 59) and their associated warships conducted operations to challenge Libya’s internal waters claims over the Gulf of Sidra. In 1973, Libya had drawn a 28 29

Lt. Gen. John A.  Wickham, Jr., Director, Joint Staff, Memorandum for the Assistant Secretary of Defense (International Security Affairs), Navigational Freedom and US Security Interests, Apr. 18, 1979. Lincoln P. Bloomfield, National Security Council memo to Zbigniew Brzesinski, Visits to los Conference, July 26, 1979, July 31, 1979.

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­Table 10.1  f on Operations conducted between April 15 and November 1, 1979 Country Panama

Date Weekly operations May – October

Remarks Coastal patrol craft conducted operations in the claimed 200-nm territorial sea of Panama and claimed internal waters of Panama Pacific Fleet units routinely conducted exercises and transits within claimed archipelagic waters without providing advance notification required by the Rep. of the Philippines

Yemen (PDRY) El Salvador

May 1 – October 18 June 4 – October 23 July 27

Libya

July 29

Malagasy Republic Tanzania Algeria

August 1 – 2

Middle East Force units conducted transits and surveillance operations within claimed 200-nm territorial sea Middle East Force units conducted surveillance operations within claimed security zone on several occasions USS Milwaukee (AOR-2) transited the claimed 200 nm territorial sea of El Salvador (approx. 18-22 nm from the coast) Aircraft from USS America (CV-66) conducted flight operations in airspace overlying the Libyan claimed internal waters of the Gulf of Sidra Task Group 75.3 led by USS Jouett (CG-29), including three frigates and a USNS TAO transited the claimed 50-nm territorial sea Task Group 75.3 transited the claimed 50 nm territorial sea USS Lawrence (DDG-4) accompanied by 4 destroyers and a frigate transited within the 12 nm territorial sea without providing advance notification required as required by Algeria

Albania

October 1

Haiti

October 3 – 4

Indonesia

October 11 – 14

Solomon Islands

October 15

Indonesia

October 20 – 23

Philippines

Somalia

August 4 – 5 September 9

USS Albany (CG-1) transited within the claimed 15-nm territorial sea without providing advance notification required by Albania USS Koelsch (FF-1049) and USS Vreeland (FF-1068) transited the claimed 200 nm economic zone of Haiti USS Midway (CV-41) Battle Group transited within claimed archipelagic waters without providing advance notification required by Indonesia A group of eight warships led by USS Chicago (CG-11) and USS Tripoli (LPH-10) transited and conducted operations within the claimed archipelagic waters of the Solomon Islands USNS Navasota (TAO-106) transited within claimed archipelagic waters without providing advance notification required by Indonesia

Note that the initial fon reports were released quarterly, not annually, and they included the dates of the challenge and the units involved. In the intervening years, these details were no longer made public—​likely to avoid providing intelligence queuing to coastal States that may react in an unprofessional or dangerous manner.

300-​mile closing line across the Gulf of Sidra, which Libya called a “Line of Death.”30 In 1972 and 1973 Libya attacked US forces operating in the area.31 In August 1981, a large number of Libyan fighter jets and fighter bombers intercepted but did not engage US aircraft overflying the high seas. The next day, 30 31

Libyan Arab Republic Ministry of Foreign Affairs, Note Verbale, MQ/​40/​5/​1/​3325, October 11, 1973, U.N. Legislative Series: National Legislation and Treaties Relating to the Law of the Sea, pp. 26–​27, U.N. Sales No. ST/​LEG/​SER.B/​19 (1980). Permanent Representative of the United States of America to the United Nations, Addressed to the President of the Security Council, June 20, 1973, U.N. Doc. S/​10956.

218 Kraska however, two Libyan contacts fired missiles at two US F-​14 Tomcat fighter jets. The Tomcats evaded the missiles and shot down both Libyan jets.32 The United States passed a diplomatic note to Libya, warning, “[a]‌ny further attacks against US forces operating in international waters and airspace will also be resisted with force if necessary. …”33

Aftermath of the Third UN Conference

On January 29, 1982, President Reagan signed National Security Decision Directive 20, which stated that while the United States would continue negotiations for the Law of the Sea Convention, US forces would maintain fon operations to challenge illegal coastal State claims.34 The directive has been continuously updated since 1982, and Presidential Decision Directive-​32 of 1995 is the current version of the us fon policy, and unclassified excerpts are reproduced as Appendix ii to this chapter.35 The Law of the Sea Convention would not be adopted until December 10, 1982, but it was already clear it was unacceptable to the United States because of the provisions on deep seabed mining. Still, the President stated that the United States would attempt to improve the treaty, but by then it appeared too late to try to turn the ship around to accommodate US interests. American objectives at this point were to ensure that Part xi on seabed mining (the Area) was revised to become a functional regime based on market incentives and protections for pioneer investors, who had invested money in seabed prospecting. The Reagan administration also wanted to ensure that it retained open access to seabed resources and that the United States had a decision-​making role in the International Seabed Authority that fairly reflected US political and economic interests as well as financial contributions. The United States was concerned that the treaty would deter development of seabed mineral resources that was needed to meet national and 32

Bernard Gwertzman, US Reports Shooting Down 2 Libya Jets That Attacked F-​14’s over Mediterranean, N.Y. Times, August 20, 1981 at p. 1. 33 Id. 34 United States Law of the Sea Policy, National Security Decision Directive (nsdd) 20, Jan. 29, 1982 (secret; declassified on Jan. 21, 2001), reprinted in James Kraska, Maritime Power and Law of the Sea 204–​207 (2011). nsdd 20 was followed by National Security Decision Directive 265 (nsdd-​265), Freedom of Navigation Program, Mar. 16, 1987, reprinted in id., p. 206–​208, and National Security Directive 49 (nsd-​49), Freedom of Navigation Program, Oct. 12, 1990, reprinted in id., pp. 209–​212. 35 Presidential Decision Directive-​32 (pdd-​32), Freedom of Navigation, January 23, 1995 (CONFIDENTIAL). Excerpts reproduced as Appendix ii to this chapter.

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global demand. In particular, the United States rejected a regime that would allow for amendments to enter into force without US approval, including the advice and consent of the Senate. Permitting material changes to the treaty after US ratification without permitting the Senate to render advice and consent created an undesirable precedent for other international organizations and set up a constitutional challenge at home. The United States also rejected the provisions for mandatory transfers of private deep-​sea technology to developing states as inconsistent with a liberal world economic order. Finally, although the United States accepted that royalties from deep seabed mining would be funneled to developing states, it resisted the provision that allowed diversion of these funds to national liberation movements. The United States considered fulfillment of these objectives mandatory in the negotiations and sought to amend the draft treaty to make it fully consistent with US interests.36 Having failed to obtain last minute revisions to the text, however, the United States prepared to operate in a different legal and political climate. Three days after unclos was adopted, President Reagan signed National Security Directive 72, which reiterated the us fon program for a post-​u nclos environment.37 The US policy stated that given that there was substantial uncertainty in the direction of the law of the sea and that the United States had made the decision to not become a party to the convention, the fon program should be revitalized and made even more effective. In particular, the President directed that the United States challenge internal waters claims that were not recognized, excessive territorial sea baseline claims, excessive territorial sea claims exceeding three nm but not exceeding 12 miles that overlap international straits or that purport to require advance notification or authorization for warships, or that apply special requirements to nuclear powered ships or warships or vessels carrying nuclear weapons or special cargoes. The United States also would challenge territorial sea claims in excess of 12 nm and other claims beyond 12 nm that purport to restrict non-​resource related high seas freedoms. Finally, the United States would challenge archipelagic claims that were not in conformance with the law of the sea. The DoD was tasked with conducting routine assertions against excessive territorial sea claims, especially those that affect international straits. Naval ships and military aircraft were directed to “freely and frequently” use such straits.38 To facilitate these operations, DoD

36 Id. 37 nsdd 72, United States Program for the Exercise of Navigation and Overflight Rights at Sea, Dec. 13, 1982 (CONFIDENTIAL; declassified on May 25, 2011). 38 Id. at 2.

220 Kraska was directed to coordinate a proposed schedule for operations to the Department of State and the National Security Adviser. The following year the president established the us eez.39 Within this zone the United States continued to recognize that all nations enjoyed high seas rights and freedoms that were not resource related, including freedom of navigation and overflight. The limited coastal State competence over the eez claimed by the United States was intended to serve as an example to other states, encouraging them to recognize the high seas character of the zone and the international airspace above it. With the United States declining to join unclos and with the establishment of the us eez, the legal and political boundaries of the law of the sea became clearer. On April 27, 1984, the independent Panel on the Law of Ocean Uses composed of American experts provided findings for their commissioned study to William Casey, Director of the Central Intelligence Agency. The Panel concluded that apart from sea-​bed mining, the United States should accept unclos as reflective of customary international law and act in conformity with the provisions of the Convention, as well as seek similar compliance from other states. The Committee received assurances from the Reagan administration that it accepted this conclusion.40 On May 15, 1985, the Panel issued the white paper, “Policy on Coastal Areas in the Sea and the Settlement of Disputes.”41 The white paper was transmitted to the President and members of congress, concluding: The United States considers the [los Convention] to accurately reflect the customary rules of international law concerning maritime navigation and overflight rights and freedoms. It is US policy to respect those maritime claims that are consistent with the navigational provisions of the los Convention. Additionally, the United States will exercise and assert its navigation and overflight rights on a worldwide basis in a manner consistent with the los Convention. The United States will not acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other traditional uses of the high seas.42 39

National Security Decision Directive 83, United States Oceans Policy, Law of the Sea and Exclusive Economic Zone, Mar. 10, 1983. 40 See 79 Am. J. Int’l L. 151–​59 (1985). 41 Panel on the Law of Ocean Uses, United States Policy on Coastal Areas in the Sea and the Settlement of Disputes, May 15, 1985 (Hereinafter “Panel on the Law of Ocean Uses”). 42 Id.

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The following year John D. Negroponte delivered remarks at the Law of the Sea Institute titled, “Who Will Protect Freedom of the Seas.”43 It was apparent that only the United States had the political will to do so. Negroponte stated: “The freedom of the seas was not given to mankind. It was won … through scholarly and legal debate and in naval engagements.”44 Recognizing that the doctrine of freedom of the seas had evolved over time, undergoing change and refinement, he explained that it still meant “primarily, the freedom of movement on the world’s seas and oceans by navies and maritime commerce: the freedom to navigate and to fly from one continent to another over broad expanses; the freedom to navigate and to fly from one sea to another through even the narrowest of straits.”45 Negroponte faulted scientists, engineers, lawyers, and most of all, politicians, for thinking in proprietary terms about the oceans. Negroponte argued that the reason that freedom of the seas was so difficult to maintain was that there is no single group of states that were solely maritime states. No state’s oceans interests were exclusively focused on its maritime interests as a flag State because all maritime states are also coastal States, and therefore have a divided interest.46

Conclusion

The Negroponte paper was followed in December 1988 by a Department of State public paper describing the fon program.47 With the Negroponte speech and release of the State Department paper, US interests in the law of the sea became more closely connected with institutional policy making inside the government. The interests that came into vivid relief during the negotiations, culminating in the fon program, had been bolstered by freedom of navigation operations during the early 1980s. Ironically, rejection of the Law of the Sea Convention (while accepting its navigational provisions) strengthened US public diplomacy because it contrasted the open and liberal rules of navigation that sprang from customary law with an overwrought deep seabed mining regime that was new, cumbersome and based on central planning.

43

John D.  Negroponte, Who Will Protect Freedom of the Seas?, 86 Dep’t of State Bull. 41 (Oct. 1986). 44 Id. 45 Id. 46 Negroponte, supra note 43. 47 Bureau of Public Affairs, US Department of State, gist:  US Freedom of Navigation Program (Dec. 1988).

222 Kraska The United States understood that freedom of navigation and overflight were dependent upon universal respect for stability and predictability, and through the three dimensions of the fon program—​diplomacy, military-​to-​ military engagement and naval operations—​the United States sought to shape the law of the sea. The United States played a central role during the negotiations and achieved a consensus on the provisions addressing freedom of navigation, and sought to preserve those traditional uses of the sea as it tried to address the shortcomings of Part xi. The Panel on the Law of Ocean Uses concluded that “President Reagan expressly commended the treaty for navigation and related issues in the Convention.” The Panel warned that it was incumbent on the United States to ensure its policies, laws, and even judicial opinions reflected this view because others would be influenced by the US example. Therefore, the United States had to maintain a 12-​nm territorial sea and afford ships of all nations the right of innocent passage, the right of transit passage in straits used for international navigation, a 24-​nm contiguous zone, a 200-​nm eez, which includes the right of freedom of navigation, overflight and related uses of the ocean, and a continental shelf as set forth in article 76. The United States also had to promulgate these interpretations throughout the Federal government, state governments and in US courts. The provisions on coastal State competence were negotiated as part of a package deal on the assumption or under the condition that disputes would be subject to dispute resolution procedures.48 The Panel recommended that the United States submit—​subject to reciprocity—​all disputes regarding navigation, overflight and pollution matters to third party adjudication or arbitration, as required in the same respects and extent of parties to the Convention. By the mid-​1980s it became apparent that since the United States would not become a party to unclos it would be necessary for it to assert its navigational rights in a tangible manner. Doing so was expected to entail heightened political, economic and military risks.49 The US effort to construct a binding dispute resolution process in unclos was motivated by a desire to avoid having to choose between acquiescence and conflict.50 Ironically, the need for compulsory dispute settlement procedures “are in the interest of the United States even if—​perhaps especially if—​it is not a party to the Convention.”51 As 48

Panel on the Law of Ocean Uses, United States Policy on Coastal Areas in the Sea and the Settlement of Disputes, May 15, 1985, at 5. 49 Id. 50 Id., at 4. 51 Id., at 5.

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Negroponte put it in 1986, there were political costs to exercising navigational rights. These costs cannot be avoided.52 Moreover, he understood that deference to excessive claims only makes it more difficult to exercise such rights in the future. The political costs of utilizing the right of freedom of navigation “increases in the absence of usage.”53 Still, the operational use of navigational rights is not designed to be provocative. Rather, fon operations are a legitimate and peaceful activity to maintain state practice as an element of customary international law. The more “aggressive and unreasonable” and provocative a claim is, the more critical it is to challenge it.54 Appendix i NATIONAL SECURITY COUNCIL WASHINGTON, D.C. 20506 CONFIDENTIAL* February 1, 1979 MEMORANDUM FOR: The Vice President The Secretary of State The Secretary of Defense The Secretary of Commerce The Secretary of Transportation The Chairman, Joint Chiefs of Staff The Director of Central Intelligence SUBJECT: Navigation and Overflight Policy Paper Attached is a copy of the Navigation and Overflight Policy Paper prepared by the Law of the Sea Contingency Planning Group on Navigation. The paper has been cleared by

52 Negroponte, supra note 43. 53 Id. 54 Id. *   Declassified in full, October 31, 2013.

224 Kraska all members of the working group, and we request that you provide final agency clearance no later than Friday, February 16, 1979.

Attachment



Christine Dodson Staff Secretary

Navigation and Overflight Policy and Planning*

i Issue

What should United States policy be regarding the protection of navigation, overflight, and related national security interests in the oceans in the event of failure to conclude a widely accepted Law of the Sea (los) Treaty that the US can ratify or during the period until such a treaty enters into force for the United States.

ii Background

The Law of the Sea Conference commenced in 1973 and it is not at all clear when, or if, we will conclude a comprehensive, widely acceptable los Treaty which could be submitted to national governments for ratification. It is also unclear how long the ratification process might take or whether agreement can be secured at the los Conference to provisionally apply all or selected parts of the treaty after signature but before the international ratification process and entry into force is accomplished. It is, therefore, timely to consider what our navigation and overflight policy should be both in the event of failure to conclude a treaty and during the pre-​treaty period.

iii

The United States Interests

The United States has an essential interest in protecting commercial and military navigation, overflight and related national security and other interests in and over the oceans. Recent developments, particularly unilateral measures to extend various forms of national jurisdiction beyond traditionally recognized limits, singly and in combination, pose a challenged to traditional high seas freedoms in general and the aforementioned interests in particular. The United States is physically separated from most of its major allies and trading partners by vast ocean areas. We are separated from our nato and anzus allies as well as from allies with whom we have bilateral defense * This paper addresses questions regarding navigation and overflight policy and planning. It does not seek to address resource issues. It further is intended not to directly address pollution and scientific research matters but does recognize the interrelationship between them and the prime focus of the paper.

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agreements. Our commitments and interests vary but they include requirements for naval and air support and resupply of land forces. Our interest in the unimpeded deployment of our general purpose forces includes the traditional Sixth Fleet deployments in the Mediterranean and Seventh Fleet deployments in the Pacific. Moreover, we have both short and long range interests in ensuring that our naval and air forces maintain the unhampered right to range over other areas of the oceans, including the Indian Ocean. Such deployments to other areas are important inter alia in order to ensure that our military forces are familiar with various areas for purposes of contingency planning and as a stabilizing deterrent. We also have a significant interest in gathering intelligence throughout the world by the use of naval vessels, aircraft and ocean devices. Our commercial interests include keeping worldwide lines of communication open in order to protect and foster trade with and between other countries as well as protect the economic interests of consumers, shippers and carriers. This applies not only to the transportation of oil and natural gas in ships and pipelines but is also applicable to the general transport of food and natural and finished products into and out of the United States as well as to our key allies and trading partners. As a world leader in civil aviation we have a major interest in fostering the maintenance of a civil aviation regime which facilitates efficient and economic air transport. These commercial interests are important not only to the maintenance of a healthy national and world economy, but also for the maintenance of a free world merchant marine, whether flying the US flag or otherwise. We have a general interest in maintaining good relations with coastal states including those in the Group of 77, while at the same time preserving our various interests noted above. Finally, it is a substantial US interest not to provoke new claims to offshore jurisdiction that affect navigation, or act in such a manner at to provoke changes to the important navigation texts contained in the Informal Composite Negotiating Text (icnt) before the Conference, which are satisfactory to the United States.

iv

Trends in the Regime of the Oceans

Prior to the commencement of the los Conference in 1973, there were numerous and accelerating claims to extended jurisdiction in the oceans beyond those that the United States recognized as matter of law or policy. The los negotiations themselves have created a greater awareness of the potential benefits of extended coastal state jurisdiction and have had the effect of accelerating the making of such claims, although they have moderated certainly claims to conform to texts evolved at the conference. Some of these claims are consistent with the evolving consensus at the conference, but some particularly territorial sea claims made before the conference extend far beyond anything that might be recognized under any likely los treaty.

226 Kraska Some of the claims that we do not recognize as a matter of law or policy at the present time would recognize as part of an los treaty that we would ratify, e.g., archipelagic State status as defined in the icnt. An acceptable treaty would presumably represent a balance of various US interests and would draw certain distinctions and contain certain safeguards that would not obtain in the absence of such a treaty. In this regard any los treaty is likely to contain provisions for the compulsory and peaceful settlement of disputes, including those involving navigation questions, subject to a military exemption. This would create a new deterrent to undesirable claims expand the options for response by the US.

A

The Territorial Sea

B

The Contiguous Zone

The territorial sea (including the superjacent airspace), is an area adjacent to the coast in which the coastal state is sovereign, subject only to a right of innocent passage by foreign flag vessels, whether merchant ships or warships. except as may be otherwise agreed, and the territorial sea there is no right of overflight by foreign aircraft or submerged transit by foreign submarines. Territorial sea claims in excess of three nautical miles have proliferated in the last few years. At the present time, of the 131 independent coastal states, only 20, including the United States, claim a territorial sea of three nautical miles in breadth. Eight states claim territorial seas greater than 3 miles but less than 12 miles. 75 states claim territorial seas of 12 miles and 28 states claim territorial seas greater than 12 miles, some extending to 200 miles from shore.* With respect to the regime for the territorial sea, certain states call for prior notification or authorization for passage by warships, nuclear powered ships, or oil tankers contrary to our interpretation of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone and customary international law.

The contiguous zone is an area of the high seas adjacent to the territorial sea in which an international law recognizes that the coastal state has certain competence regarding customs, immigration, sanitary and fiscal matters. In accordance with the 1958 Geneva Convention on the territorial sea and contiguous zone the contiguous zone may extend a maximum of 12 nautical miles from the coast. Approximately 39 states claim contiguous zones of 12 miles or less, while approximately 23 claim contiguous zones in excess of 12 miles. In addition, some states claim within their

* It should be noted that some of the more expansive territorial sea claims do not encompass all of the classic attributes of sovereignty. For example, certain Latin American 200-​mile claims ostensibly preserve freedom of navigation beyond 200 miles.

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contiguous zone competence over security matters which are not in our view sanctioned by international law. The latter claims directly affect our uses of the sea for defense purposes.

C

Historic Waters, Archipelagos and Other Baseline Systems

D

Fisheries or Economic Zones

A number of states have incorporated into their national legislation various types of baseline systems which are inconsistent with our interpretation of international law. Some states, such as the Philippines, claim as historic waters areas of the sea ranging from 1/​2 mile to approximately 300 miles from shore. Within these claimed “historical waters” high seas freedoms are not recognized by the claimants. Other states, such as Burma, have drawn straight baselines which include as internal waters vast areas of the high seas. A limited number of states, i.e., Indonesia, Fiji, Cape Verde, and Sao Tome and Principe have declared themselves to be archipelagos. they have drawn straight baselines connecting the outermost points of the outermost islands and declared the waters land word of such baselines inland waters or archipelagic waters. (The Philippines have done the same within their claimed historic waters.) This is contrary to our review of existing international law, as we only recognize the right of states to draw baselines around individual islands, with various types of offshore jurisdiction, including territorial seas, measured from shore, although we are under occasional pressure from certain elements in Alaska and Hawaii to alter this view.

A number of states have claimed jurisdiction to 200 miles, not always as an assertion of full sovereignty but rather as a fisheries zone, as in the case of the United States, or in the more expansive form of an exclusive economic zone. The exclusive economic zone is a concept of extended jurisdiction which has developed in the course of the los negotiations. While 44 states have claimed fishing jurisdiction beyond 12 miles, including 35 claims to 200 miles, 40 states have claimed 200 mile economic zones. The provisions of these economic zone claims vary widely but they usually include authority over fishing, Marine scientific research, and the prevention of pollution. In addition, certain states include in their economic zones authority over artificial islands and installations, pipelines and cables. Although most disclaim any restrictions on navigation and overflight, a few include such restrictions. These latter claims have many of the trappings of a territorial sea. It should be stressed that each variant of economic zone must be addressed on its own merit, as they range from essentially fishery conservation zones to the near functional equivalent of a territorial sea.

E Security Zones

Approximately 20 states claim security zones separate from the contiguous zone noted above, with the distances in some cases extending up to 200 miles from the coast.

228 Kraska These states seek to prevent passage by warships and aircraft of all or certain states within such zones. North Korea for example recently declared a 50-​mile military zone which purports to prohibit or severely limit navigation and overflight.

F Continental Shelf

The 1958 Geneva Convention on the continental shelf recognizes the sovereign rights of the coastal state over the continental shelf for the purpose of exploring it and exploiting its natural resources to the 200 m isobath and beyond to where the depth of water admits of exploitation. Thus, the extent of permissible coastal state jurisdiction would increase as technology advances. This rule is a part of customary international law as well at the same time states which claim jurisdiction over an economic zone of 200 miles include the seabed and subsoil out to 200 miles. Thus, these states have to claim sovereign rights over the seabed and the sea which may not admit of exploitation at this time and indeed in many cases extends beyond the geo-​morphological continental shelf and includes part of the deep seabed. Other states maintain that as a matter of customary law they have sovereign rights over the continental shelf to the edge of the continental margin, which is not defined and which is viewed by certain states as extending hundreds of miles offshore. Some states view their jurisdiction over the margin to include control over non-​resource activities, including the emplacement of military devices.

v

United States Position vis-​a-​vis Extended Jurisdiction

The United States currently claims and recognizes a 3 mile territorial sea (including the superjacent airspace) drawn from baselines established in accordance with the 1958 Geneva Convention on the territorial sea and contiguous zone, to which it is a party, a contiguous zone extending 12 miles from the baseline in accordance with that convention, a 200 mile fishery management and conservation zone as set forth in the fishery conservation and management act, and continental shelf jurisdiction in accordance with the 1958 Geneva Convention on the continental shelf, to which it is party. At the same time, the US maintains the high seas freedoms of navigation, overflight, and related uses as well as the lane of submarine pipelines and cables beyond the territorial sea. Moreover, we maintain the freedom of Marine scientific research in the water column beyond the territorial sea although we recognize a consent regime for research concerning the continental shelf and undertaken there, which we (but few others) interpret to mean physical contact with the shelf. We do not recognize the archipelago theory but rather recognize the rights of individual islands to the various offshore jurisdictional entitlements as noted above. The US has indicated that as a part of a comprehensive and widely acceptable los treaty we could accept a 12-​mile territorial sea provided it was coupled with transit

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passage (freedom of navigation and overflight for transit purposes) through, over and under straits used for international navigation. We are also prepared to accept a contiguous zone extending 24 miles from the baseline. We are prepared to accept a 200-​mile eez which, with respect to fisheries, is generally consistent with our legislation. We are prepared to accept a system of vessel source pollution control based upon a mix of flag state, port state and coastal state competence. We are prepared to accept limitations on the conduct of scientific research within a 200-​mile economic zone and on the continental shelf. We are prepared to accept coastal state sovereign rights over the resources of the continental margin to a precisely defined outer limit beyond 200 miles. Our acceptance of various coastal state competence beyond a 12-​mile territorial sea is, of course, conditioned on the maintenance of the terror traditional high seas freedoms of navigation, overflight, and related national security uses. With the exception of marine scientific research and a precise definition of the continental margin the texts before the conference regarding those matters are satisfactory. The first and second Geneva conferences on the law of the sea were unable to agree on the maximum breadth of the territorial sea. The 1958 Geneva Convention on the territorial sea and contiguous zone envisaged that the territorial sea and contiguous zone together could not extend more than 12 miles from the baseline. This uncertainty in the convention, coupled with the fact that a plurality of states now claim territorial seas of 12 miles in breadth, while approximately 28 states claim territorial seas in excess of 12 miles, indicates the nature of our position that we do not recognize territorial sea claims greater in breath then 3 miles. moreover, it should be noted that although we recognize only a 3-​mile territorial sea, we have claimed certain attributes of a territorial sea out to 12 miles, including pollution control jurisdiction. Indeed, we are under periodic domestic pressure to expand our pollution control claims off our own coast in ways that would subject us to navigational restraints off foreign coasts, particularly as foreign coastal states could be expected to expand on our precedents. The absence of clear international treaty law on the subject has made our dealings with Congress and the public more difficult in this regard. Claims of territorial seas of 12 miles or greater and indeed certain claims between three and 12 miles result in situations where in straits used for international navigation which we view as having a high seas core door are overlapped by territorial seas. While the 1958 Geneva Convention provides for non-​suspendable innocent passage through Straits, this is not satisfactory for ensuring the movement of ships and aircraft through, over and under Straits used for international navigation. Innocent passage confers no rights of overflight or submerged passage. Certain states which claim a 12-​mile territorial sea, E. G., The Soviet Union and France, maintain a customary law or right of free navigation through straits. The US should promote the view that there is freedom of navigation and overflight through straits used for international navigation regardless of the width of the Straits, but without endorsing territorial sea claims in excess of 3 miles.

230 Kraska Assertions of jurisdiction over navigation, overflight, and related activities beyond a narrow territorial sea are illegal in our view and cannot diminish our rights in the oceans. Furthermore, claims of archipelago status by certain island nations are illegal in our view and not binding on other nations. Finally, while the 1958 Geneva Convention on the territorial sea and contiguous zone and customary law and envisage drawing of straight baselines under certain geographic conditions as well as claims for historic base, it is clear that many states have gone beyond what is permitted by the convention and our view of customary law. In singling out extended territorial sea claims, assertions of jurisdiction over navigation, overflight, and related matters two 200 miles, assertions of archipelago status, in assertions of certain baselines and historic bay claims, it is not suggested that these are the only assertions of jurisdiction that are contrary to our view of international law an offensive to US interests. These four types of claims, however, engage the most critical security and economic interests of the United States and should be considered at this time. Since of essential US interests are placed in jeopardy it is clear that the US should seek ways to put a lid on objectionable unilateral claims, to negate them if possible, or to direct such unilateral actions in a manner most consistent with our interests. In sum, we must seek ways to preserve US rights and interests in the oceans. It should be noted, however, that the enactment by the US in 1976 of the fishery management and conservation act probably encouraged other countries to make similar claims, legitimized some of the claims that have been made previously, and clearly made it more difficult for us to argue that states do not have the right to unilaterally define their own interests and act accordingly. Thus, some may argue that if we can unilaterally eliminate freedom of fishing on the high seas, they can take unilateral action with respect to other freedoms.

vi A

Elements in Preserving Rights General Statements of Positions

The US has made official statements at the los conference and in other fora concerning its present policy and what it is willing to accept as part of an los treaty. Our statements have been given wide enough currency to be viewed as giving some notice of our general position to other states. We have also indicated in notices to mariners that we do not necessarily recognize certain jurisdictions claimed by other countries. Moreover, the office of the geographer in the Department of State has prepared a Limits in the Seas series which comments on the claims of other countries in a factual and in some cases legal manner. This series is publicly available. These statements, notices, and studies are useful in publicizing our juridical position regarding certain claims in the oceans.

Archival History of the Creation and Early Implementation

B

Diplomatic Measures

231

Short of formal diplomatic protests, one can make informal approaches at an appropriate level to individual governments which have asserted or intend to make a claim contrary to international law. We can approach officials at the appropriate level and indicate the US position and concern and this may serve as a vehicle for urging modification of the legislative or executive action taken or contemplated. In some cases, such approaches may most usefully be made in military rather than diplomatic channels. We have flexibility concerning the formality or informality of the approach and the level at which it will be made. Our particular approach would depend upon the circumstances of each case, including the seriousness of the action taken or contemplated in other aspects of our relations with the country concerned. At a more formal level we can lodge a diplomatic protest of actions that we do not acquiesce in or recognize. Such a protest is a formal communication from one state to another that it objects to an action performed or contemplated by the latter. It serves the important purpose of preserving rights and making it known that the protesting state does not acquiesce in and does not recognize certain actions. A state can lodge a protest against other states’ actions which have been notified to the protesting state or which have become otherwise known. On the other hand, if a state requires knowledge of an action which it considers internationally illegal and in violation of its rights and does not protest, this attitude may imply a renunciation of such rights. Further, express or tacit acquiescence in an act which a state has previously protested may have the effect of overriding the earlier protest. Thus, a simple protest without further action, may not in itself be entirely sufficient in all cases to preserve the rights in behalf of which the protest was made. Nevertheless, a diplomatic protest enhances the status of the protesting states position and detracts from the standing of the claim that is opposed. At the same time it is true that when an act is in violation of an existing rule of customary or conventional international law, it is tainted with invalidity and is incapable of producing legal results beneficial to the wrongdoer in the form of a new title or otherwise. That invalidity may be wholly or partially mitigated by an individual or collective act of other states that can be taken as an act of recognition or acquiescence. Thereafter, the new assertion may be viewed as valid notwithstanding the initial illegality of the act on which it was based. At some point the law confirms established practice and expectations. The US is now faced with a situation in which many states are asserting extended claims of jurisdiction, which we view as invalid, over ocean areas. To the extent that claimants have asserted the jurisdiction which is generally consistent with the informal composite negotiating text (whose provisions are likely to find their way into any ultimate los treaty), we are faced with a difficult problem, since a treaty may not be attainable or may only be attained several years hence. In such cases, and others, we

232 Kraska should preserve our juridical position by protesting claims which we view is illegal, but at the same time we must be realistic and try to channel certain claims, which cannot be prevented, in a direction which, while still illegal in our view, is less harmful to US interests in the absence of a treaty than the claim would otherwise be. Thus, while we could not dissuade Japan from extending its territorial sea to 12 miles, we did persuade her to exclude certain straits from the extended claim. In summary, our policy should be one of trying to discourage or negate illegal claims, to direct claims in a direction least offensive to us, and otherwise to preserve our position. Until approximately 1973 or 1974, the early stages of the los conference, the US had protested various types of claims that it did not recognize. Since that time, however, we have generally failed to protest navigation, overflight and related restrictive claims, in part because of uncertainty as to what claims the Congress would be making regarding fisheries and control of navigation for pollution purposes. No formal policy decision was taken to cease protests, although some were stopped at high levels for bilateral political reasons. Protests were made only in certain selected instances. It is generally agreed that the US should regularize its protests of claims that it does not recognize now that our own fisheries and pollution positions are clearer.

1

Arguments Regarding Regularizing Protests

In moving ahead with protests the US would indicate its resolve to protect its rights with or without a treaty and this could contribute to moving the los negotiations forward. We would provide leadership that some of our allies are looking for in the face of widespread assertions of jurisdiction. We might reassure the Soviets that we are committed to protecting navigation rights and allay some of their concerns regarding our reluctance to be as forceful on certain aspects of the economic zone as they are. Moving ahead now would tend to counter the stepped-​up pace of adverse claims, many of which pose a serious threat to navigation, overflight and other security and economic interests. For example, the French have recently incorporated a notice requirement for the entry of oil tankers in their territorial sea (a position which has been rejected at the conference). Cape Verde, Fiji, and São Tomé and Principle have recently declared themselves archipelagos. We must consider the adverse effect of no protest or a prolonged delay in protesting those states, as well as on Indonesia which has claimed archipelago status for some time. indeed, Indonesia in recent bilateral negotiations have sought to insert a territory clause into a tax treaty in science and technology agreement with the US, which would tend to imply recognition of the archipelago. We have resisted such a clause. Papua New Guinea has recently instituted a baseline system, which is the first step to moving to the declaration of an archipelago. Most of the states in South Asia have recently asserted claims of 200-​mile economic zones which have many of the attributes of a territorial sea and are clearly connected with the most undesirable aspects of various proposals regarding the Indian Ocean as a zone of peace.

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Moving ahead now with protests would also indicate to the Congress that the executive branch is truly concerned with the unilateral actions of others with possible restraining effects on unilateral tendencies of the Congress. Moving ahead now is also important because we are not merely dealing with a contingency matter in the case of failing to conclude a treaty. A treaty will not be signed for at least two years and will not be ratified for some time thereafter. At the same time, because we have generally held our protests in abeyance for some years, it may be argued that no significant prejudice would result while waiting until the prospects of a treaty are more clear. Postponement would not upset the ongoing los negotiations or indicate that we are giving up on the negotiations. However, a postponement can be viewed as acquiescence in the longer we delay the less tenable some positions will become. For example, only 21 states now support a 3-​mile territorial sea. We can expect that number to decrease in the future. The longer we delay the more we will be faced with claims contrary to our position. Putting off protests further into the future, in essence, would be a policy not to protest.

2

Specific Objects of Protest Policy

With respect to navigation and overflight we should generally protest unilateral claims that we do not now recognize and will not recognize as part of a treaty, as well as certain claims which we do not recognize but which would be acceptable in the context of an acceptable los treaty. we should be mindful of the fact that recognizing certain claims in the absence of a treaty may reduce the incentive for such claimants to work for the successful conclusion of a treaty. At the same time however we should recognize the possible adverse impact of inundating the international community with diplomatic protest. It is proposed, therefore, that the US first focus on those claims which most adversely impact on our critical interests. At the same time, we must avoid acquiescing in other claims that are contrary to our interests. We should protest all territorial sea claims in excess of 12 nautical miles and at least some of the claims greater than 3 miles but no greater than 12 miles in this latter category we should protest at least those claims which overlap (or in combination with another state’s claims overlap) a straight used for international navigation when no explicit provision is made to provide for either freedom of navigation in overflight or transit passage along the lines of the icnt. in any case, we must not concede, and the coastal state must be made aware that we do not recognize, that a state may inhibit or condition freedom of navigation and overflight through and over waters which we view as a high seas corridor, as that is a right we already have under international law. All claims should be protested which contain requirements for advance notification or authorization for warships or which purport to exclude warships or purport to subject warships to a more onerous regime than other vessels. Moreover, protests should be made regarding rules for innocent passage through the territorial sea (not in straits)

234 Kraska which are substantially different from the icnt provisions on innocent passage. the reference is made to the icnt provisions on innocent passage because they generally codify existing law and are, therefore, satisfactory to the US, with or without a treaty. with respect to not protesting a state which has provided for transit passage through Straits along the lines of the icn to you, a judgment has been made that realistically this is a satisfactory result even in the absence of a treaty, because of the significant number of territorial sea claims greater than three and not more than 12 miles, although the regime of complete freedom of navigation and overflight is preferable. This is not meant, of course, to be an exclusive list but seeks to identify the main problem areas. We should also protest assertions of jurisdiction over navigation and overflight and associated and related high seas uses beyond the territorial sea. Such assertions include provisions which differentiate warships from other ships or purport to apply a more onerous regime for nuclear warships or vessels carrying nuclear weapons or assert plenary pollution control. Once again, this listing is illustrative, not exclusive. We must, of course, be mindful of restrictions on commercial as well as military activities. We should also protest all claims of archipelago status. We accepted privately the archipelago concept as part of a treaty only with great difficulty and with the full recognition that vast areas of the high seas would fall under coastal state sovereignty. The provisions for navigation and overflight in the icn t are an adequate, not a full substitute for the high seas freedoms that we now enjoy. Moreover, we should not reduce the incentive for archipelago claimants to join in ultimate treaty by explicitly or implicitly recognizing the concept in the absence of a treaty. Finally, we should protest certain baselines and historic bay/​water claims. These would have to be considered on a case-​by-​case basis although clear examples of interest assertions include those by Argentina, Uruguay, Libya, the Philippines and Burma. In singling out these four types of claims as prime candidates for protests it is not meant to imply that other claims are acceptable. Claims regarding Marine scientific research, for example, need further study. It must be recognized that certain claims that have not been protested are in fact several years old. It might seem somewhat anomalous should we now send out a protest. Further consideration should be given to the possibility of preparing a circular note to all states, perhaps through the UN system, indicating the claims of offshore jurisdiction that we recognize and reserve our rights and those of our nationals with respect to all other claims. The policy of other developed countries regarding protests seems to be somewhat spotty most of the protests of which we are aware address territorial sea claims in excess of 12 nautical miles although certain protests have been made of archipelago claims. In this regard a nato nac meeting in early 1979 will explore further the question of preservation of rights with a view to encouraging our allies to oppose certain

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types of claims, especially those noted above. We should also, at an appropriate time, consult with Japan, Australia, New Zealand, and perhaps certain members of the group of 77. We might also consult with the Soviet Union which has a major interest in freedom of navigation and overflight. A demonstrated willingness of the US to take a firm position on protests may facilitate cooperation with at least certain of the above mentioned countries.

C

Exercise of Rights

As noted above, a diplomatic protest is only one means of preserving rights and may not be sufficient to preserve our rights. we must at the same time exercise our rights in the illegally claimed areas or in opposition to an illegal restriction. Our naval and air forces should exercise traditional freedoms and rights in the face of illegal claims whenever doing so is practicable and taking into account other missions of these forces as well as fiscal constraints, although in certain cases we must consider going out of our way to contest the claim. We must clearly avoid an irrational disposition of forces but we must ensure that we are seem to be exercising our rights in an unequivocal manner. We should consider whether any of our current practices could be misconstrued as acquiescence in an illegal claim. We should consider, for example, distinguishing exercises conducted in cooperation with a coastal state or as a prelude to or aftermath of a port visit from the exercise of rights which are not so associated. Such exercises should normally be conducted in a low-​key and nonthreatening manner but without special attempt at concealment. It should also become a matter of public knowledge that our military forces customarily exercise these freedoms and rights. Bilateral and regional considerations must be factored into any decisions concerning exercise of rights. Furthermore, we should consider whether other states are exercising their rights in the face of particular claims. In sum, it should be emphasized that juridical, as well as other, considerations should be factored into the planned deployments of our military forces. A brief review of the history of US exercises of rights indicates that our record is not as unequivocal as we would desire. United States routinely deploys military forces to the Mediterranean and the Pacific as well as to the Baltic Sea, Indian Ocean and black sea. Our military forces in these areas are generally exercising our rights and freedoms of the sea, but it is not clear in many cases whether we, in fact, penetrate illegally claimed areas. In addition, on a nonroutine basis we deploy forces to the Sea of Okhotsk and areas off the coast of Libya. Some deployments to sensitive areas, such as the Black Sea, the Baltic Sea, and the Sea of Okhotsk, are conducted in consultation with dod, jcs, and the Department of State and are important as visible demonstrations of our willingness to exercise our rights and as a counter to Soviet and other assertions that these areas are either Soviet lakes or the preserve of the littoral states.

236 Kraska We have not exercised our rights for the most part off South America. Our deployments in this area are generally in cooperation and consultation with the coastal states concerned and, consequently, may not be viewed by others as an exercise of freedom of the seas. At the same time, the question arises of whether we engage in certain practices which may undermine our rights. In certain instances, it may facilitate the normal operations of military forces to alter operating routines to make them consistent with los claims of other countries. No formal recognition of the validity of such claims is involved in the alterations of normal operations are generally minor. we should study, however, these practices to determine what they are, how widespread they are, whether they could be deemed by others to be acquiescence, and whether they should be continued, altered, or eliminated.

vii Recommendations

A. The US should protest claims of other states that are inconsistent with international law and US policy, with particular reference to extended territorial sea claims as well as the regime therein, assertions of jurisdiction over navigation, overflight, and related matters on the high seas beyond the territorial sea, and assertions of archipelago status, and assertions of certain baseline and historic bay/​water claims. the Department of State should maintain a current comp violation of illegal claims made by coastal states and the dates and nature of US protests with respect thereto. B. The US should exercise its rights in the face of the illegal claims noted above to the extent practicable and should avoid actions which may be viewed as acquiescence in such illegal claims. Juridical as well as other considerations should be factored into the deployment planning of our military forces. the Department of Defense should maintain a current compilation of data regarding US exercises of rights contrary to coastal state claims. This compilation should include dates and places as well as information concerning unusual circumstances which may occur incident to the exercise of our rights. C. The US should promote the view that there is freedom of navigation and overflight at least for purposes of transit (as in the icnt) through straits used for international navigation, but without endorsing territorial sea claims in excess of three miles. D. The nsc working group on navigation and overflight contingency planning should continue to function as a review group, meeting, as necessary, to review the timely implementation of this policy and to make recommendations on further action which may be required.

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Appendix ii UNCLASSIFIED EXCERPTS January 23, 1995 PRESIDENTIAL DECISION DIRECTIVE/​NSC-​32 This directive provides current guidance for protecting US navigation, overflight rights and freedoms, and related interests on, under, and over the seas against excessive maritime claims. The purpose of this policy is to preserve the global mobility of US forces by avoiding acquiescence in excessive maritime claims of other nations. … .

Policy The United States considers the 1982 Convention on the Law of the Sea (los Convention) to accurately reflect the customary rules of international law concerning maritime navigation and overflight rights and freedoms. It is US policy to respect those maritime claims that are consistent with the navigational provisions of the los Convention. Additionally, the United States will exercise and assert its navigation and overflight rights on a worldwide basis in a manner consistent with the los Convention. The United States will not acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other traditional uses of the high seas.

­c hapter 11

Military Activities in Foreign Exclusive Economic Zones: Identification and the Application of Law Xinmin Ma* Abstract The legality of military activities in foreign exclusive economic zones (“eez s”) is an important issue in both the theory and practice of the law of the sea. It involves the interests, not only of every State, but also of the international community as a whole in eez s. It has been a subject of controversy during the negotiations of the United Nations Convention on the Law of the Sea (“losc” or the “Convention”) and substantial divergences of views still exists today in State practice and academic writing. Indeed, a conclusion has yet to be reached from the debate which has centred upon the interpretation and application of the relevant provisions of the losc. The present article explores the following five issues from a positivist perspective: firstly, whether a State has the right to conduct military activities in foreign eez s; secondly, what the legal framework is for military activities in foreign eez s; thirdly, how to determine the legality of military activities in foreign eez s; fourthly, the basis and procedures to resolve conflicts over the attribution of residual rights in terms of military activities in foreign eez s; fifthly, the lex ferenda concerning military activities in foreign eezs .

Keywords military activities  –​exclusive economic zone  –​law of the sea  –​United Nations Convention on the Law of the Sea –​conflict resolution

* Vice president of the Asian Society of International Law and vice president of the Chinese Society of the Law of the Sea. The article represents only the views of the author in his own capacity. The author thanks Mr. Chen Jianzhong and Ms. Qiu Yutong for their assistance.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_015

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Whether a State Has the Right to Conduct Military Activities in Foreign eez s

The losc does not contain any specific provision on military activities in foreign eez s. While general references to military activities have been made in the losc provision on dispute settlement procedures (Article 298 (1)(b)), no definition of such activities has been found therein. Meanwhile, the losc main provisions on the prohibition of military activities being Articles 301 and 19, classify military activities, by reference to levels of severity, as the threat or use of force or as other military activities. On the one hand, Articles 3011 and 19 (2)(a)2 explicitly prohibit any threat or use of force in the territorial sea and other marine areas including eez s. On the other hand, while the other subparagraphs within Article 19 (2)3 impose limitations on other military activities in the territorial sea not reaching the level of severity as the threat or use of

1 See Article 301 of the losc: “[i]‌n exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.” 2 See Article 19 (2) of the losc: “[p]‌assage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of United Nations; …” 3 See Article 19 (2) of the losc: “[p]‌assage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: … (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of willful and serious pollution contrary to this Convention; (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage.”

240 Ma force, such limitations do not appear in the losc provisions on eez s. Indeed, the losc neither explicitly provides specific right for the coastal State to prohibit nor confers on other States a right to military activities. Thus, the legality of military activities in the foreign eez s is not clear-​cut under the losc, which is a “gray area” of the losc.4 The issue of the right to conduct military activities in foreign eez s has given rise to two opposing schools of thought. 1 “Prohibition Theory” Many developing States are of the view that, the losc does not authorize the conduct of military activities in the eez s of other States. In other words, in the absence of consent of coastal States, such activities are not permitted in their respective eez s. While a comprehensive survey may be pending, it appears that around 18 States have taken this position.5 In particular, Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan, Uruguay, and Thailand, have made such declarations to such effect when signing or ratifying the losc.6 However, the scope of military activities subject to such limitations may differ from State to State according to their respective declarations. Several States such as Brazil, India, Bangladesh, Malaysia and Pakistan have emphasized that without the consent of the coastal State, military exercises or manoeuvres are not permitted in their respective eez s, particularly those involving the use of weapons or explosives.7 Certain other States such as Iran have stressed that without the consent of the coastal State, military surveys and the collection of military intelligence are not permissible within their eez s.8 Cape Verde, Uruguay, Thailand and Iran have underlined that without the consent of the coastal State,

4 See Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 2nd. edition, 2015), p. 396; Zou Keyuan, “Navigation in the South China Sea: Why Still an Issue?” 32 International Journal of Marine and Coastal Law (2017) 243, p.254. 5 These States include:  Bangladesh, Brazil, Myanmar, Cape Verde, China, India, Indonesia, Iran, Kenya, Malaysia, Maldives, Mauritius, the Democratic People’s Republic of Korea, Pakistan, the Philippines, Portugal, Thailand and Uruguay. See Raul (Pete) Pedrozo, “Military Activities in the Exclusive Economic Zone:  East Asia Focus”, 90 International Law Studies (2014) 514, p. 521. 6 See UN, Oceans and the Law of the Sea, Declarations and Statements made upon signature/​ ratification/​accession/​succession, http://​www.un.org/​Depts/​los/​convention_​agreements/​ convention_​declarations.htm. 7 Ibid. 8 Article 16, Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Osman Sea,1993, http://​www.un.org/​Depts/​los/​LEGISLATIONANDTREATIES/​PDFFILES/​ IRN_​1993_​Act.pdf.

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other States may not carry out non-​peaceful activities that are contrary to the rights and interests of the coastal State within its eez.9 There are several reasons for objection to military activities of foreign States in one’s eez s. Firstly, a reason has been that the freedoms enjoyed by other States in the eez s of the coastal State as set out in Article 58 (1) of the losc do not encompass military activities, and accordingly military activities are not allowed within the eez without the consent of the coastal State.10 Secondly, the conduct of military activities within the eez s is not in conformity with the peaceful purposes for which eez s are reserved under the losc.11 Thirdly, the losc does not prevent coastal States from exercising jurisdiction over or prohibiting military activities within their respective eez s,12 and furthermore the right with respect to military activities are residual rights of the coastal State even though such rights have not been expressly attributed within the losc.13 Such residual rights have been supported by Cape Verde and Uruguay, which have made declarations to this effect when signing the losc.14 That said, these declarations faced objections by Germany and Italy, who asserted that the coastal State do not enjoy residual rights under the losc, and in particular, the rights and jurisdiction enjoyed by the coastal State in eez s do not include the right to obtain notification of military exercises or manoeuvres, or the right to authorize them.15

9 10 11

12

13 14 15

Supra note 6. See A.V. Lowe, “The Commander’s Handbook on the Law of Naval Operations and the Contemporary Law of the Sea”, 64 International Law Studies Series, US Naval War Collection 109. p. 113. See Hasjim Djalal et al., “Draft Guidelines for Military and Intelligence Gathering Activities in the EEZ and Their Means and Manner of Implementation and Enforcement”, 29 Marine policy (2005) 175, p. 175; See B.A. Hamzah, “Military Activities in the EEZ: Preliminary Views from Malaysia” in S. Wu and K. Zou (eds), Securing the Safety of Navigation in the East Asia: Legal and Political Dimensions (Chandos Publishing, 2013), p. 161. See B.  A. Hamzah, “Military Activities in the EEZ:  Preliminary Views from Malaysia”, in S. Wu and K. Zou (eds), Securing the Safety of Navigation in the East Asia: Legal and Political Dimensions (Chandos Publishing, 2013), pp. 161–​169. Also see R. Xiaofeng and C. Xizhong, “A Chinese Perspective”, 29 Marine Policy (2005), p. 142; Zhang Haiwen, “Is it Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? Comments on Paul (Pete) Pedrozo’s Article on Military Activities in the EEZ,” 9 Chinese Journal of International Law (2010), pp. 31–​47. See Boleslaw A.  Boczek, “Peaceful Purpose Clauses:  A Reappraisal after the Entry into Effect of the Law of the Sea Convention in the Post-​Cold War Era”, 13 Ocean Yearbook (1998) 404, pp. 412–​413. Supra note 6. Ibid.

242 Ma 2 “Allowance Theory” In contrast to the positions of the above developing States, a number of traditional maritime powers has maintained that the coastal State has no right to limit the right of other States to conduct military activities in the coastal State’s eez. Since the very beginning of the Third United Nations Conference on the Law of the Sea, the United States delegation has consistently maintained that military activities in the eez s of other States form part of the freedom of navigation and other internationally lawful uses of the sea. Moreover, according to the United States, limitations upon such military activities are confined to the obligation, as stipulated in the losc, to have “due regard” to the rights and duties of the coastal State, to comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the losc and other rules of international law, in so far as they are not incompatible with Part v (Article 58(3)), as well as to respect the coastal State’s jurisdiction in terms of protection of the marine environment in its eez.16 In this regard, the Netherlands, the United Kingdom, Italy and Germany have stated in relation to Brazil’s declaration against military activities in foreign eez s that requiring the coastal State’s consent for military activities in its eez s is not consistent with the losc.17 The above claims have been made upon the premises of a number of propositions. Firstly, it has been argued that military activities fall within the scope of “other internationally lawful uses of the sea related to these freedoms” provided in Article 58 (1).18 The United States has indicated that, military operations, exercises and activities have always been regarded as internationally lawful uses of the sea. The right to conduct such activities will continue to be enjoyed by all States in the exclusive economic zone. This is the import of Article 58 of the Convention.19 According to the United States, the losc provision

16

17 18

19

See Ashley Roach, “Marine Data Collection: US Perspectives”, Myron H. Nordquist et al, Freedom of Navigation and Globalization (Brill, 2014)  pp.  294–​295. Jon M.  Van Dyke, “Military Ships and Planes Operating in the Exclusive Economic Zone of Another Country” 28 Marine Policy (2004) 29, p. 35. See also Raul Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone”, 9 Chinese Journal of International Law (2010), p. 24. Supra note 6. See George V.  Galdorisi and Alan G.  Kaufman, “Military Activities in the Exclusive Economic Zone:  Preventing Uncertainty and Defusing Conflict”32 California Western Journal of International Law (2002) 253, p. 272. Also see Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone”, 9 Chinese Journal of International Law (2010) 9, pp. 9–​29. See Third United Nations Conference on the Law of the Sea (1973–​1982), Note by the Secretariat, UN Doc. A/​CONF. 62/​WS/​37 and Add. 1 and 2, Volume xvii Official Records,

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on peaceful purpose does not create new obligations that impose restrictions on military activities. Second, it has been argued that military activities form an integral component of the freedom of the high seas, particularly the freedom of navigation and overflight, under general international law. The United States has long maintained that it enjoys the traditional freedom of the high seas within the eez s of other States. In particular, the freedom of navigation is considered to be covering an extensive range of military activities, including military exercises or manoeuvres, weapon tests, hydrographic surveys, and intelligence gathering.20 As some commentator noted, the rationale for this argument appears to lie upon Article 58(1), which has been said to be intended to reserve the right of maritime powers to use eez s for military purpose. Such commentators have noted certain authoritative writings which are of the view that in addition to the freedoms of navigation and overflight in the high seas, as well as other internationally lawful uses of the sea related to these freedoms, the freedoms referred to in Article 87 also include military operations which have been recognized historically.21 There have been commentators who consider that the rights listed in Article 87 (1) are merely examples and by no means exhaustive, as demonstrated by the term ‘inter alia’ within Article 87(1). They further consider that the language within the losc, which refers to the freedoms of the high seas being subject to the conditions set down in the losc and “other rules of international law”, evince the intention that the losc is not to be the only source of law in relation to the use of the high seas or eez s.22 The implication is that, the freedom of the high seas under other international law rules equally applies to the high seas or the eez s. Thirdly, it has been argued that the limitations on military activities in the territorial sea (Article 19(2)) and archipelagic waters (Article 52)  under the losc have not been applied in relation to eez s, and as such military activities in eez s are not under such limitations.23

20 21 22 23

p. 244, http://​legal.un.org/​docs/​?path=../​diplomaticconferences/​1973_​los/​docs/​english/​ vol_​17/​a_​conf62_​ws_​37_​and_​add1_​2.pdf&lang=E. See D. P.O’ Connell (ed. by I.A. Shearer), The International Law of the Sea, 2 Vols (Clarendon Press, 1984), p. 809. See George V.  Galdorisi and Alan G.  Kaufman, “Military Activities in the Exclusive Economic Zone:  Preventing Uncertainty and Defusing Conflict”, 32 California Western Journal of International Law (2002) 253, pp. 274–​275. Stuart Kaye, “Freedom of Navigation, Surveillance and Security: Legal Issues Surrounding the Collection of Intelligence from Beyond the Littoral”, 24 Australian Year Book of International Law 93, p 100. See Raul (Pete) Pedrozo, “Military Activities in the Exclusive Economic Zone: East Asia Focus”, 90 International Law Studies (2014) 514, p. 519.

244 Ma 3 Comments on the Two Theories The opposing views of maritime powers and many developing States regarding the legality of military activities in foreign eez s lies in their disagreement over the legal status of eez s. Relevant also is the divergences over the interpretations of Articles 88 and 301 on peaceful purposes and uses, and Article 58(1) concerning the freedoms of navigation and overflight as well as other internationally lawful uses of the sea. In essence, the Prohibition Theory and the Allowance Theory concerning military activities in foreign eez s, are the extension of differences between the developing States and the traditional maritime powers over the legal status of the eez. These different views are represented by the Territorial Status Theory supported by developing States and the High Seas Status Theory asserted by traditional maritime powers. In fact, the eez, as a sui generis zone, is neither territorial sea nor the high seas.24 And indeed, In terms of territory, the eez is a no man’s land (and thus high seas), whereas in terms of function (i.e., usage and protection rights) the eez is a sui generis zone subject to a ‘specific legal regime’ (Article 55 of [losc]), located quasi ‘between’ the maritime territory of a coastal State and the high seas.25 Therefore, the rules governing the eez no longer allow the identification of the coastal State’s sovereign sphere and the freedoms of other States by reference to traditional principle of sovereignty or freedom of the high seas.26 In fact, neither a total denial nor an absolute affirmation of a right to conduct military activities in foreign eez s represents a balanced view-​they are both incompatible with the provisions and the spirit of the losc, as well as State practice in this regard. 3.1 Comments on the “Prohibition Theory” Regarding the Prohibition Theory, it is to some extent reasonable to take the view that foreign States have no right to conduct military activities in foreign eez s, for the reason that the losc does not contain provisions on such right. 24 25 26

See R.  R. Churchill and A.  V. Lowe, The Law of the Sea (Manchester University Press, 1999), p.166. See Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited”, 26 Ocean Yearbook (2012) 87, p. 89. See Umberto Leanza & Maria Cristina Caracciolo, Exclusive Economic Zone, in 1  The IMLI Manual on International Maritime Law (Oxford University Press, 2014), p. 185.

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Article 55 of the losc explicitly provides that the eez is “subject to the specific legal regime” established in Part v of the losc, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of the losc. The rights of both coastal States and other States in the eez s are set out in, and allocated by, the losc, which does not mention military activities in this regard. However, the absence of express reference in the losc to such right is not conclusive of the matter. According to Article 87(1) of the losc, the freedom of the high seas is not limited to the six freedoms. In other words, the six freedoms as listed in the losc do not exhaustively set out all the freedoms of high seas. Furthermore, the freedom of the high seas is not only based legally upon the losc, but also upon “other rules of international law” concerning the freedom of the high seas, provided that they are in conformity with the losc. Moreover, the losc does not provide for the right of foreign States to conduct military activities in the coastal State’s eez s. Even though the inference that foreign States do not have the right to conduct military activities in the coastal State’s eez s is tenable, it remains difficult to follow that such right belongs to the coastal State. Furthermore, the rights of the coastal State in the eez are in fact extraterritorial rights. A requirement for foreign States to obtain prior consent from the coastal State for military activities in the latter’s eez may be considered as representing the view that the eez forms part of the coastal State’s territory as such. As it has been noted, “it is clear that the eez cannot be considered as part of the State territory. Rather, it is to be qualified as an area of functional jurisdiction of the coastal State within which the coastal State is entitled to exercise functionally limited sovereign rights and jurisdiction. These rights are not associated with the zone in a spatial sense, but mainly derive from its economic potential.”27 3.2 Comments on the “Allowance Theory” The Allowance Theory regards military activities in foreign eez s as a traditional freedom of the high seas, as part of the traditional freedoms of navigation or overflight, or as falling within the scope of “other internationally lawful uses”. Such view conforms to neither the losc nor international practice. Firstly, it is untenable in law to assert that the rights to conduct such military activities are based on that the traditional freedom of the high seas cover 27

See Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited”, 26 Ocean Yearbook (2012) 87, pp. 88–​89.

246 Ma such military activities. It should be noted that the losc has introduced a new legal regime for the high seas and the eez s. As such, the current regime of the freedom of the high seas is not the replicate of the traditional regime, but is a codification and development of the traditional freedoms of the high seas. The traditional regime cannot as such be applied in the context of the eez. There has been a view that the freedoms of the high seas listed in Article 87 of the losc do not constitute an exhaustive list, as the legal basis for such freedoms is not limited to the losc itself. It also seems possible to assert other freedoms of the high seas under general international law, i.e., outside the scope of the losc. However, as stipulated in Article 58(2) of the losc, Articles 88 to 115 and other pertinent rules of international law on the high seas only apply to the eez in so far as they are not incompatible with the regime of the eez. Indeed, this rule has confined the freedoms of the high seas under general international law to a scope that is compatible with the eez regime. Thus, the freedoms of the high seas that apply to the eez are limited to the three freedoms of navigation, overflight and the laying of submarine cables, which excludes the possibility of other freedoms. Therefore, there exists no room for the right to conduct military activities in foreign eez s, which historically formed part of the freedoms of the high seas. In fact, even before the conclusion of the losc, Professor Wolfrum has noted that the restriction of the high seas area, the vagueness of Article 301 on the peaceful uses of the seas, as well as the ambiguity of the “peaceful use” clause, would impact on the military use of the high seas.28 Under the regimes of the high seas and the eez of the losc, the activities that States may carry out in foreign eez s should be confined to specific peaceful and non-​economic activities in the high seas. Secondly, it is untenable in law to assert the right to conduct military activities in foreign eez s on the basis that such activities are covered by the traditional freedoms of navigation and overflight. Even though the traditional freedoms of navigation and overflight in the high seas include the freedom of conducting military activities, such freedom does not naturally extend to the eez. It is wholly erroneous to equate the three freedoms in eez s under Article 58(1) of the losc, including those of navigation and overflight, with the traditional freedoms of navigation and overflight in the high seas. It has been noted by many commentators that the incorporation of the rights into Article 58 (1) of the losc cannot be regarded as a congruent reflection of the regime

28

See Rüdiger Wolfrum, “Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being”, 24 German Yearbook of International Law, (1981) 200, pp. 217–​219.

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of the high seas.29 The sui generis character of the eez in terms of its function requires that the freedoms of the high seas not be applicable to the eez in an undifferentiated manner.30 This can be inferred from many clauses of the losc. Being “subject to the specific legal regime”, these freedoms applicable in eez s under the losc should not be taken as the freedom of the high seas per se.31 As stipulated in Article 58(2), Articles 88 to 115, apply to the eez “in so far as they are not incompatible with [Part v]”. Also, as shown in Article 58(1), the freedoms of navigation and overflight and of the laying of submarine cables and pipelines as provided for in Article 87 apply to the eez not in an undifferentiated manner, but “under the conditions laid down by [the] Convention”. Compared to the high seas, the exercise of the rights of other States is subjected to stricter limits in the eez s.32 In this respect, there have been commentators who have made reference to Article 79 (3) which subjects the course for the laying of a submarine pipeline to the consent of the coastal State, as well as Article 60 (6) under which the freedom of navigation is subject to limitations in respect of artificial islands, installations and structures of the coastal State and the safety zones around them. Accordingly, “strictly speaking, Article 58(1) of [losc] thus supersedes the regime of the high seas.”33 Meanwhile, the freedoms of navigation and overflight in the eez s are subject to various limitations. In exercising the three freedoms in the coastal State’s eez, other States must have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the losc and other rules of international law in so far as they are not incompatible with Part v of the losc (Article 58(3)). Also, when exercising the three freedoms in the eez s, other States are subject to the sovereign rights and jurisdiction of the coastal State in the eez, including not to impair the coastal State’s sovereign rights in the eez s with respect

29

30 31 32 33

See Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited”, 26 Ocean Yearbook (2012) 87, p. 96; Efthymios Papatavridis, “Intelligence Gathering in the Exclusive Economic Zone”, 93 International Law Studies, (2017) 446, p.460. See Jorge Castañeda, “Negotiations on the Exclusive Economic Zone at the Third United Nations Conference on the Law of the Sea”, Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (Martinus Nijhoff, 1984), p. 615. See Efthymios Papatavridis, “Intelligence Gathering in the Exclusive Economic Zone”,93 International Law Studies, (2017) 446, p.454. See Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C. H. Beck Hart Nomos, 2017), p. 449. See Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited”, 26 Ocean Yearbook (2012) 87, p. 96.

248 Ma to natural resources and economic activities, and to respect the rules established by the coastal State with respect to artificial islands, installations and structures, marine scientific research and the marine environment. Unlike the high seas, the freedom of navigation in the eez s may be subject to limitations imposed by the coastal State. For example, overflight in eez s for the purpose of exploration and exploitation is subject to authorization by the coastal State. Similarly, navigation by foreign vessels in eez s is to comply with the rules of the coastal State with respect to marine pollution. Furthermore, shipping in the contiguous zone is subject to coastal State jurisdiction under Article 33 of the losc.34 The freedom of navigation, whether in terms of nature and of extent, differs from the traditional freedoms of the high seas freedoms. Although the above limitations do not clearly refer to the limitations on the military activities, the new regime of the law of the sea established in the losc has deeply impacted traditional military use of the high seas. The military utilization activities in the high seas and the eez s are not only subject to the relevant provisions of the losc,35 including the limitations that the high seas and the eez s are reserved for peaceful purposes, but are also increasingly subject to limitations imposed by the coastal State,36 including their domestic laws and regulations on peaceful uses of maritime spaces and resources. As international practices demonstrate, it is the intrinsic meaning of the losc to reserve the eez s for peaceful uses rather than for military uses, which also conforms to the practices of majority of States. Under the current law of the sea regime centered with the losc, the assertion that traditional freedoms of the high seas include the freedom to conduct military activities is not only incompatible with the spirit of the freedoms of navigation and overflight in the high seas and the eez s as prescribed in the losc, but also contravenes the subsequent national practices. As it has been commented, “what is clear is that it is no longer accurate to say that the freedom of navigation exists in the exclusive economic zone of other countries to the same extent that it exits on the high seas.”37

34 35 36 37

See Yoshifumi Tanaka, “Navigation Rights and Freedoms”, Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015), p. 554. See Rudiger Wolfrum, “Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being”, 24 German Yearbook of International Law, (1981) 200, pp. 217–​218. See Jon M. Van Dyke, “The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone”, 29 Marine Policy (2005) 107, pp. 116–​120. See Jon M. Van Dyke, “The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone”, 29 Marine Policy (2005) 107, p. 121.

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Thirdly, it is not compatible with the terms and spirit of the losc to cover all military activities involving military ships and aircraft as “other internationally lawful use” under Article 58(1). The losc does not prohibit foreign military ships and aircraft from exercising “internationally lawful uses of the sea” related to [the freedom of navigation and overflight and of the laying of submarine cables and pipelines] in eez s as provided in Article 58 (1). While it is acknowledged that the rights of States in foreign eez s are more extensive than the three freedoms of the high seas, such “other internationally lawful uses of the sea related to [the freedom of navigation and overflight and of the laying of submarine cables and pipelines]” under Article 58(1) are subject to certain conditions. Specifically, these “other internationally lawful uses” must be related to, but also be distinct from, the three freedoms of navigation and overflight and of the laying of submarine cables and pipelines. Such uses must be in conformity with international law, including the losc. Incorporating all the military activities by military ships and aircraft in foreign eez s into the scope of “other internationally lawful uses” is an unduly expansive interpretation of Article 58(1). Such interpretation not only contravenes the provisions and spirit of the losc, but also renders the provisions on residual rights in Article 59 redundant. As commentators have noted, “accepting that the activity is covered by Art. 58(1) would ignore the separate existence of Art. 59, which presumes that situations exist where the Convention does not attribute rights or jurisdiction to the coastal State or to other States within the eez.”38 In addition, commentators have invoked the so-​called “Lotus principle” under which, as a generally accepted principles of international law, any act that is not prohibited in international law is permitted. Under this principle, States may lawfully engage in intelligence collection, oceanographic surveys and other military activities in and over the eez without coastal State notice or consent.39 Such understanding patently goes against the provisions of Article 59 of the losc, which establishes the rule concerning the attribution and allocation of the so-​called “residual rights” in case of ambiguity. With respect to rights (including those in relation to military activities) the attribution of which is not clear, the losc neither requires authorization of the coastal State, nor incorporates such rights into those freedoms enjoyed by other States in eez s. Instead, the losc characterizes such rights as “residual rights”, and conflicts between the coastal State and other States over such rights are to be resolved 38 39

Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C. H. Beck · Hart · Nomos, 2017), p. 453. See Raul (Pete) Pedrozo, “Military Activities in the Exclusive Economic Zone: East Asia Focus”, 90 International Law Studies (2014) 514, p. 528.

250 Ma pursuant to Article 59, being the provision on the resolution of conflicts regarding the attribution of residual rights. Accordingly, under the regime of the eez provided for in the losc, the rights of the coastal State and other States must be based only upon the losc. Whether any right may be established as deduced or inferred from general international law would depend on whether such right is compatible with the losc. The fact that the losc does not impose a prohibition does not amount to an authorization. Neither does non-​ authorization under the losc amount to a prohibition. There have also been commentators who have noted that the San Remo Manual on the Law of Armed Conflicts at Sea rejects the view that all military activities are inconsistent with the “peaceful purposes” provisions of the Convention. The Manual refers to scenarios that armed conflict at sea may take place on the high seas, as well as within the eez of a neutral State. The author opines that this proves the legality of the occurrence of armed conflict existing in the eez.40 This argument confuses jus ad bellum with jus in bello. These two concepts, though interrelated, are separate branches of international law. The former relates to the issue concerning the right to, or the legality of, the use of the force, while the latter concerns the legality of the specific conduct in the course of armed conflicts, with the purpose of confining the armed conflict, already commenced, within a certain legal scope. As such, regardless of the legality of the resort to force, where an armed conflict occurs as a matter of fact, jus in bello applies. Thus, jus in bello, or the law of armed conflicts, only focuses on the actual conduct of armed conflicts, without regard to the reasons for and the legality of resorting to force. In the context of military activities of an armed-​conflict nature within the eez, the relevant rules are mainly jus ad bellum. The occurrence of armed conflict in the eez is only indicative of the factual situation that an armed conflict exists, which is separate from the issue of the legality of such armed conflict. 4 Current Debates on the Legality of Military Activities in eez s At present, the international community has yet to reach a consensus over the legality of military activities in foreign eez  s, which remains uncertain with much ambiguity. As Professor Robin Churchill, specializing in the law of the sea, noted, “there is neither an agreed interpretation of the Convention nor a rule of customary law on the issue of whether the conduct of naval maneuvers or weapons exercises in the eez is an unfettered right of other States or is

40

See Raul (Pete) Pedrozo, “Military Activities in the Exclusive Economic Zone: East Asia Focus”, 90 International Law Studies (2014) 514, p. 535.

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subject to the consent of the coastal State.”41 Professor Tullio Scovazzi, also specializing in the field, also notes that, no prevailing orientation or trend can be inferred from present States practices regarding military exercises in the eez.42 Considering the varieties and complexities of military activities in foreign eez s, neither an absolute rejection nor endorsement of such activities is warranted. A sound approach may be to allow for differential treatment for different situations of military actions. The actual situations of military activities in foreign eez s may differ from case to case. Some may be unlawful outright, or may possibly not be legally prohibited, while many cases may concern residual rights the attribution of which may not be clear. Conflicts over whether rights relating to military activities are to be attributed to the coastal State or to other States under the losc should be resolved pursuant to the residual rule under Article 59.43 ii

The Legal Framework of Military Activities in Foreign eez s

Before the conclusion of the 1945 UN Charter which established the fundamental principle of the prohibition of the threat or use of force, the traditional law of the sea recognized the use of the sea for both peaceful and non-​peaceful purposes. That said, although the four 1958 Geneva Conventions on the law of the sea did not contain specific provisions regarding the peaceful uses of the sea, they nonetheless established a law of the sea in line with peace on the basis of the UN Charter. The losc, concluded in 1982, further expressed and developed the legal principles and regime of peaceful uses of the sea. The losc emphasizes in its preamble the historical significance of the Convention as an important contribution to the ‘maintenance of peace’ and the ‘strengthening’

41 42 43

Robin R.  Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention” in Alex G. Oude Elferink (ed), Stability and Change in the Sea: The Role of the LOS Convention (Martinus Nijihoff, 2005), p. 135. T. Scovazzi, “The Evolution of International Law of the Sea: New issues, New Challenges”, 286 Hague Academy Recueil des Cours (2000), pp. 163–​164. See Robin R Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention” in Alex G. Oude Elferink (ed.), Stability and Change in the Sea: The Role of the LOS Convention (Martinus Nijihoff, 2005), p. 135; A.V. Lowe, “Some Legal Problems Arising from the Use of the Seas for Military Purposes”, 10 Marine Policy (1986), p. 180; T. Scovazzi, “The Evolution of International Law of the Sea: New issues, New challenges”, 286 Hague Academy Recueil des Cours (2000), pp. 166–​167; Erik Franckx, “American and Chinese Views on Navigational Rights of Warships” 10 Chinese Journal of International Law (2011) 187, p. 200.

252 Ma of ‘peace’ and ‘relations’ ‘among all nations’, and affirms the “peaceful uses of the seas and oceans”.44 These statements, giving expression to the furtherance of peace and security in the world, have been regarded as implying that only peaceful uses of the sea are permissible.45 Moreover, Article 301,entitled ‘Peaceful uses of the Seas’, and requiring States Parties to refrain from any threat or use of force in exercising their rights and performing their duties, applies to all marine space and marine activities in general. In terms of the use of the highs seas and eez s, Article 88 prescribes that ‘the high seas shall be reserved for peaceful purposes’, and which, in accordance with Article 58(2) of the Convention, also extends to the eez. It requires that any activities, including military activities, that are conducted in the eez, ‘shall only be for peaceful purposes’. Under the framework of the losc, only those military activities with peaceful purposes are permitted. There is no doubt that the provisions in the Convention includes the peaceful purposes reservation is a turning point in the history of the law of the sea.46 Pursuant to the Convention, any military activities in the eez, must be for peaceful purposes, have a legal basis for their conduct, and comply with the rules of international law in such conduct. Only upon satisfying these three conditions may the military activities in eez s be lawful. 1 The Legal Regime for Peaceful Uses of eez s While the Convention has established the principle of peaceful uses of eez s, such “peaceful” uses have not been clearly defined. Nor have there been specific provisions in the Convention on military activities in eez. As such, the

44

45 46

The Preamble to the Convention states as follows: “… aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world, … Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, … Believing that the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, co-​operation and friendly relations among all nations in conformity with the principles of justice and equal rights … in accordance with the Purposes and Principles of the United Nations as set forth in the Charter.” See Stuart Kaye, “Marine Scientific Research and Military Survey: Law and State Practice”, in Shicun Wu, M. Valencia, & N. Hong (eds.), UN Convention on the Law of the Sea and the South China Sea (Ashgate Publishing Company, 2015), p. 98. See Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea”, 8 Ocean Yearbook (1989) 329, pp. 357–​358.

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meaning of “peaceful” uses remains ambiguous, hence giving rise to varying interpretations. The general acceptance of the principle of peaceful uses, entails a prohibition of any military activities constituting the threat or use of force that is contrary to the principles of international law set forth in the UN Charter. The pertinent issues here are whether ‘peaceful’ uses entail an absolute prohibition of military activities (i.e. ‘non-​militarization’), and whether the Convention imposes legal obligations upon States in relation to the prohibition of other military activities. Significant divergences of views lie between the developing States and marine powers on these issues. The United States maintains that the meaning of “peaceful” purposes or uses as codified by Articles 88 and 301 of the Convention is limited in scope to the prohibition of threat or use of force under Article 2(4) of the UN Charter. It also maintains that ‘peaceful purpose’ does not per se prohibit all military activities in the oceans.47 Military activities conducted for peaceful purposes are fully compatible with the UN Charter and the principles of international law. Any specific limitation on military activities would require negotiation of a detailed arms control agreement.48 Some commentators believe that the peaceful purposes formula proscribes only those military activities which are incompatible with the law of the UN Charter.49 In their view, Article 301 of the Convention on peaceful uses is modelled along the lines of Article 2(4) of the UN Charter.50 It is believed that this article only repeats the general obligations of States under the Article 2(4) of the UN Charter, to refrain from the threat or use of force against other States, and does not give rise to a prohibition of military activities.51 On the contrary, many developing States such as Ecuador maintain that peaceful purposes or uses entail a complete prohibition of any military activities. During the discussions at the fourth session of the third UN Conference on the Law of the Sea, the representative of Ecuador stated that the peaceful 47 48 49 50 51

See J. Ashley Roach, “Marine Scientific Research in the Area”, in Michael W. Lodge and Myron H. Nordquist (eds.), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan (Brill Nijhoff, 2014), p. 280. See Third United Nations Conference on the Law of the Sea (1973–​1982), 67th plenary meeting (1976), A/​CONF.62/​SR.67, p. 62, para. 81. See Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea”, 8 Ocean Yearbook (1989) 329, p. 347. See Rüdiger Wolfrum, “Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being”, 24 German Yearbook of International Law, (1981) 200, p. 215. See Ivan Shearer, Military Activities in the Exclusive Economic Zone: The Case of Aerial Surveillance, 17 Ocean Yearbook (2003), 548, p. 557.

254 Ma purposes reservation meant complete prohibition of all military activities at sea, both offensive and defensive, and also asserted that ‘the use of the ocean space for exclusively peaceful purposes must mean complete demilitarization and the exclusion from it of all military activities.’52 However, the representative of the United States argued that, The term “peaceful purposes” did not, of course, preclude military activity generally …[T]‌he conduct of military activities for peaceful purpose was in full accord with the Charter of the United Nations and with the principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement. The Conference was not charged with such a purpose and was not prepared for such negotiations. Any attempt to turn the Conference’s attention to such a complex task could quickly bring to an end current efforts to negotiate a law of the sea convention.53 When it came to the deadlock, the representative of Soviet Union while supporting peaceful uses of the seas, contended, same as the representative of the United States, that such complex problems as establishing zones of peace and security, eliminating naval bases, and so on, were “beyond the scope of the work facing the Conference on the Law of the Sea.” The Soviet representative went on to say that a “complete and constructive solution of those issues would be possible only within the framework of the appropriate United Nations bodies or at other international conferences and forums dealing with the problems of disarmament, international security and world peace.”54 This view was ultimately reflected in Article 301 of the Convention. Therefore, the issue of whether peaceful purposes or uses imply a complete prohibition of military activities is indeed ‘a matter left over by history’. There was no consensus on this issue when negotiating the draft of the Convention. With its terms remaining in ambiguity and in the absence of specific stipulations, the provisions on “peaceful” purposes or uses have been subject to differing interpretations by States.

52 53 54

See Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea”, 8 Ocean Yearbook (1989) 329, p. 345. See Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea”, 8 Ocean Yearbook (1989) 329, pp. 345–​346. See Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea”, 8 Ocean Yearbook (1989) 329, p. 346.

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As a matter of fact, under the framework of the Convention, “peaceful” purposes and uses are not limited to ‘non-​aggression’, nor do they require complete ‘non-​militarization’. Peaceful purposes do not equate to the prohibition of use of force or threat of use of force (‘non-​aggression’) set out in Article 301. In terms of legislative techniques, it may not be appropriate to equate the ‘peaceful purposes’ in Article 301 with the ‘non-​aggression’ in Article 2(4) of the Charter, because the prohibition of threat or use of force in Article 2(4) is “superior law” which automatically applies to the eez, and does not require repetition in the Convention. In fact, the specific terms used in Article 301 of the losc and Article 2(4) of the UN Charter are different from each other. Article 301 refers to the threat or use of force “in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations”, whereas Article 2(4) of the Charter refers to ‘the threat or use of force … or in any other manner inconsistent with the Purposes of the United Nations’. As such, Article 301 of the losc is more comprehensive in terms of its objects of protection and has a broader scope of coverage than Article 2(4) of the Charter. Article 301 covers not only the purposes and principles set out in Chapter i of the Charter, but also other parts of the Charter, encompassing all principles and rules of international law embodied in the Charter. In terms of content, peaceful purposes or uses are clearly distinct from military purposes or military use. With respect to the eez, its ‘reserv[ation] for peaceful purposes’ entails that activities in the eez shall be peace-​oriented, including not only ‘passive peace’ i.e. refrain from the threat or use of force, but also ‘active peace’ i.e. in active promotion of peace. It has in fact created, to a certain extent, a legal obligation for States Parties to use the eez for peaceful purposes, and imposed certain limitations on States Parties in their conduct of military activities. Clearly, the losc provisions on peaceful uses of the seas are much broader in scope than Article 2(4) of the Charter in respect of refraining from the threat or use of force. Although at present this peaceful purpose reservation more likely expresses aspirations of states and their policy goal for the future rather than a rule of positive law, it represents a way forward for the law of the sea. The legal impact and potential value should not be denied.55 From the above analysis, one may derive a reasonable interpretation of the losc provisions on “peaceful” purposes and uses as follows. “Peaceful” purposes include not only acts of ‘passive peace’ in the form of refraining from the threat or use of force, but also ‘active peace’ in the form of promoting the

55

See Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea,” 8 Ocean Y.B. 329 (1989), pp. 359–​360.

256 Ma peaceful uses of the seas. In respect of active peace, under the UN framework, all States are committed to promoting the peaceful uses of the seas. The activities in this respect have already covered safe passage, marine research and obligation to settle disputes peacefully,56 and are extending to the areas of maintaining marine peace and security, promoting marine protection as well as conducting marine cooperation. Under the framework of the Convention, all States are clearly under certain legal obligations in maintaining international peace and security of the seas and oceans, in promoting marine international cooperation and in protecting the marine environment. Furthermore, peaceful purposes do not equate to complete ‘non-​ militarization’. Certain forms of military activities are indeed permitted in the eez. Firstly, the Convention contains provisions on military activities beyond the territorial sea. Some commentators have noted, on the basis of express losc provisions, that the Convention accepts the military activities at sea as a normal fact of life. For example, in accepting the existence of warships (and even granting them a privileged status in Articles 32, 95 and 236), it has been considered that only certain categories of military activities are prohibited in the territorial sea (Article 19(2)). This implies that military activities are permissible outside the territorial sea. It is also considered that the optional exclusion from compulsory judicial settlement of disputes concerning military activities (Article 298)  would be rendered redundant if such activities were illegal under the peaceful purposes and uses provisions in the Convention.57 Secondly, although the losc establishes the principle of peaceful purposes, there are no specific provisions on ‘non-​militarization’. Thus, the losc differs from the Antarctic Treaty, the Outer Space Treaty as well as the Moon Agreement which do contain such provisions in addition to establishing the principle of peaceful purposes.58 As noted by several commentators, the Convention is not the first international instrument containing references to peaceful purposes. There are indeed several earlier treaties making such references, especially the Antarctic Treaty and the Outer Space Treaty, in which the ‘peaceful purposes’ language is followed immediately by specific prohibitions 56 57

58

See Vesselin Popovski, “LOSC and Peaceful Uses of the Sea”, in Shicun Wu et al. (eds.), UN Convention on the Law of the Sea and the South China Sea (Ashgate Publishing Company, 2015), p. 82. See Boleslaw Adam Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law (1988) 445, pp. 457–​458. And also Moritaka Hayashi, “Military and Intelligence Gathering Activities In the EEZ: Definition of Key Terms”, 29 Marine Policy (2005) 123, p. 125. See Article 1 of the 1959 Antarctic Treaty, Article 4 of the 1966 Outer Space Treaty and Article 3 of the 1979 Moon Agreement.

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on military fortifications, military maneuvers and testing of weapons. This distinction indicates that the Convention has not been intended to prohibit military activities on the high seas, otherwise the prohibitive articles would have been included.59 From the perspective of positive law, the rules on peaceful purposes and uses in the Convention mainly refer to the prohibition of the threat or use of force. In this regard, some commentators have correctly noted that while the preamble to the Convention expresses the vision that ‘establishing through this Convention, … a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans’, its stipulation on peaceful purposes only prohibits such military activities that are inconsistent with the law of the UN Charter. There is no mention of the view that the Convention is an international arms-​control agreement. If the specific peaceful purposes clauses were to be arms control provisions, they would have to be followed by fairly long series of rules applying in detail the general idea of various situations and activities in the respective marine zones. No such provisions can be found in the Convention.60 Therefore, in terms of complete non-​militarization in the eez, it is merely a wish on the part of a majority of States, representing lex ferenda yet to be further developed. As some commentators note, whether the peaceful purposes clauses will produce in the eez any legal effect transcending the prohibition of Article 301 depends on the evolution of international practice in the coming decades.61 In international law, up till the present, “demilitarization” only entails prohibition of military presence (including weapons or military personnel) in certain international areas. For example, in the Antarctic region and the outer space, military personnel, military installations and weapons as well as military activities are banned.62 Contemporary international law is not aware of any generally recognized and universal obligation to disarm.63 In this regard, 59 60 61 62 63

See Bernard Oxman, “The Regime of Warships Under the United Nations Convention on the Law of the Sea”, 24 Virginia Journal of International Law (1983–​1984) 809, pp. 830–​831. See Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea”, 8 Ocean Yearbook (1989) 329, p. 348. See Boleslaw Adam Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law (1988) 445, pp. 457–​458. See Kees Kingma, Nico Schrijver, “Demilitarization”, in Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Volume iii, pp. 13–​15. See Bakhtiyar Tuzmukhamedov, “Disarmament”, in Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Volume iii, p.  151. See also icj,

258 Ma Article 26 of the UN Charter provides that the Security Council possesses only recommendatory powers for general regulation in this sphere.64 Therefore, “demilitarization”, as an objective pursued by States, is merely lex ferenda, rather than lex lata. At present, States generally recognize the peaceful purposes or peaceful uses articles of the Convention and acknowledge that they shall refrain from any military activities of threat or use of force in the eez. Pursuant to Article 2(4) of the UN Charter and Article 301 of the Convention, any threat or use of force against the territorial integrity or political independence of any State in any sea areas, or in any other manner inconsistent with the principles of international law embodied in the UN Charter, are all prohibited by international law. However, the Convention does not prohibit all military activities; indeed, some of which are permissible to the extent that they are not incompatible with conditions laid down by the Convention or other rules of international law.65 The Convention does not prohibit lawful military activities that are consistent with the Charter and the Convention. On the one hand, the Convention does not prohibit the military activities that are consistent with the principles of international law embodied in the Charter. Under the framework of the Charter, military activities in eez s conducted with the authorization of the Security Council under Chapter vii or for exercising the right of self-​defence of a coastal State under Article 51 of the UN Charter are not prohibited by the Convention or general international law. On the other hand, the Convention does not prohibit military activities compatible with its provisions. The Convention does not exclude the possibility of military activities for peaceful purposes. According to Articles 58 and 87, the vessel and aircraft of all States, whether for commercial or military use, all enjoy the freedom of navigation and overflight, in or above the foreign eez s. Also, ‘other internationally lawful uses’ related to the freedom of navigation and overflight are permissible as prescribed in Article 58(1).

64 65

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment on Merits, 27 June 1986, para. 269. See Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary (Oxford University Press, 3rd. Ed, 2012), p. 1280. Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 684.

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Possible Legal Bases for Conducting Peaceful Military Activities in eez s As stated above, according to the Convention, the conduct of military activities in foreign eez s must firstly be in line with the principle of peaceful purposes or uses. Only those military activities consistent with the principle of peaceful purposes or uses can be permitted. However, not all military activities claimed to be peaceful are lawful; whether such activities may be lawful would require ascertaining whether there exists legal basis for the activity in question. Under the Convention, the legal basis for peaceful military activities mainly includes the following: Firstly, pursuant to the freedoms of navigation and overflight and of the laying of submarine cables and pipelines stipulated in Article 58(1), military ships or aircraft may conduct activities of navigation and overflight in or above foreign eez s. The main purpose and activities of this category of military activities often involve mere navigation and overflight. Secondly, pursuant to the provisions on ‘other internationally lawful uses of the seas related to these freedoms (of navigation and overflight and of the laying of the submarine cables and pipelines)’ under Article 58(1), military ships or aircraft may conduct military activities related to the operation of the ships or aircraft in or above the foreign eez s. Such military activities are not pure navigation or overflight activities, but are rather ‘other’ special activities associated with the operation of ships or aircraft. The key to determining whether the military activities conducted by military ships or aircraft are the activities for ‘other internationally lawful uses’ in Article 58(1) lies upon these three core elements: (1) these ‘other internationally lawful uses’ must be related to the three freedoms of navigation and overflight and of the laying of the submarine cables and pipelines, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and be compatible with the other provisions of the Convention. As to whether the activities are related to the three freedoms, the key is to determine whether the use ‘depends on’ or ‘is inseparably linked with’ one of these freedoms.66 The supporting and maintenance activities for these freedoms are regarded as typical examples of ‘other internationally lawful uses of the seas related to these freedoms’.67 If however the activities in question could be 2

66 67

See Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 453. Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 452.

260 Ma completely separated from ‘these activities’, then they would clearly not constitute uses ‘related to these freedoms’; (2) these ‘other internationally lawful uses’ must be uses other than the three freedoms and distinct from navigation, overflight or the laying of the submarine cables and pipelines. According to the Virginia Commentary, ‘other internationally lawful uses’ include ‘those associated with the operation of ships, aircraft and submarine cables and pipelines’, and do not include fishing activities which are governed by Articles 61 to 73 of the Convention;68 (3) these other uses must be ‘internationally lawful’, and consistent with general international law including the Convention. Not all the uses associated with ships or aircraft can be considered as ‘other internationally lawful uses’. If these activities are concerned with, but not aimed at or focused on navigation, overflight or the laying of the submarine cables and pipelines, the activities should not be considered as ‘other internationally lawful uses’ referred to in Article 58(1). Otherwise, any activities concerned with navigation, overflight or the laying of the submarine cables and pipelines could be included as ‘other internationally lawful uses’. As Professor Zou Keyuan described, “military activities, except the exercise of the right of navigation in and/​or overflight above the eez, under the losc are not navigational rights per se, but special rights associated with navigation. It should not be taken for granted that, in so far as such activities are navigation-​associated, they will be treated equally as navigational rights.”69 Thirdly, pursuant to Article 59 of the losc which provides for the resolution of conflicts regarding the attribution of residual rights, one may claim that the military activities by military ships or aircraft in eez s are within the scope of ‘residual rights’ in that Article, and that the attribution of their rights should be determined on the basis of the same article (which will be referred to as the “residual rule”). Such military activities are neither pure military navigation or overflight activities, nor ‘internationally lawful uses’ related to freedoms of navigation and overflight under Article 58(1), but are rather sui generis military activities or residual military activities. They could be residual activities whose attribution of rights was not determined when negotiating the Convention, but also could be newly emerged uses of the seas due to the development of technology. It should be determined based on various situations. 68 69

See Myron H.  Nordquist et  al. (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary (Martinus Nijhoff Publishers,1993), vol. ii, p. 564. Zou Keyuan, “Navigation in the South China Sea: Why Still an Issue?” 32 International Journal of Marine and Coastal Law (2017) 243, p. 259.

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Fourthly, pursuant to the provisions of the Convention on marine scientific research and hydrographic survey, one may claim that the military activities by military ships or aircraft are marine scientific research or hydrographic survey activities as prescribed in the Convention. Under the framework of the Convention, marine scientific research and hydrographic survey are different concepts. The text of the Convention distinguishes between ‘research’ and ‘survey’, and uses the separate concepts of ‘marine scientific research’ or ‘research activities’ on the one hand and ‘hydrographic survey’ or ‘survey activities’ on the other.70 Part xiii of the Convention only refers to marine scientific research, without mentioning surveys. Although the Convention does not define marine scientific research, it establishes the legal regime of consent by coastal States on marine scientific research. However, the Convention gives no definition of hydrographic survey, nor is there any rule to regulate any specific survey activities. There are uncertainties on how to define hydrographic survey. Some are of the view that hydrographic survey should be considered as internationally lawful uses related to the freedom of navigation as prescribed in Article 58(1) of the Convention.71 It is also opined that unlike the regulations of coastal States on the survey conducted in the territorial seas, there is no clear prohibition of survey in the eez. Also, the fact that surveys are always permissible on the high seas facilitates the survey activities conducted in the eez without consent of the coastal State.72 Another possible interpretation is that hydrographic surveys are ‘residual rights’ whose attribution is not clear as embodied in Article 59. According to the research work of Dr. Sophia Kopela, fourteen States have adopted national legislation, requiring prior consent for hydrographic survey, including intelligence gathering, in their eez s.73 Although hydrographic survey is different from marine scientific research, it does not hamper the 70

Article 19 (2) and Article 40 of the Convention all refer to ‘research or survey activities’. Article 21 (1) refers to ‘marine scientific research and hydrographic surveys’. 71 See Moritaka Hayashi, “Military and Intelligence Gathering Activities in the EEZ: Definition of Key Terms”, 29 Marine Policy (2005) 123, p. 136. 72 See Bernard Oxman, “ The Regime of Warships under the United Nations Convention on the Law of the Sea”, 24 Virginia Journal of International Law (1984) 809, pp. 844–​847; Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone”, 9 Chinese Journal of International Law (2010) 9, pp. 11–​13. 73 These States include Barbados, Belgium, Comoros, Grenada, India, Iran, Malaysia, Morocco, Myanmar, North Korea, Pakistan, Philippines, Tanzania, Vanuatu. See Sophia Kopela, “The ‘Territorialisation’ of the Exclusive Economic Zone:  Implications for Maritime Jurisdiction”, pp.  4–​ 5, available at:  https://​www.dur.ac.uk/​resources/​ibrn/​ conferences/​sos/​s_​kopela_​paper.pdf.

262 Ma application of the same consent regime of the coastal States as in the case of the marine scientific research. In addition, pursuant to Article 58(2), on the condition that are not incompatible with the regime of eez s, States have the right to use military ships to exercise the right of boarding or the right of hot pursuit in their eez against the unlawful acts such as piracy, transport of slaves, illicit traffic in narcotic drugs or psychotropic substances and unauthorized broadcasting, in accordance with the international law including the losc (Articles 99, 100, 108, 109, 110 and 111). Such activities conducted by the military ships are indeed exercising the right of law enforcement, which fall within the scope of law enforcement activities and should not be considered in principle as military activities. 3 Rules of International Law for Peaceful Military Activities In the conduct of any military activities within the eez or in the airspace thereupon, whether in conducting either pure navigation or overflight military activities, other military activities as ‘other internationally lawful uses’ and sui generis residual military activities or other marine activities, or in handling the conflicts regarding the attribution of residual rights in the eez, one must strictly abide by the rules of international law. In this regard, it should be noted that the Convention is the fundamental but not the sole legal basis for regulating the activities in the eez. In addition to the Convention, the Charter of the United Nations, general international law as well as domestic laws of the coastal States are also applicable laws in relation to the military activities in the eez s. 3.1 The Charter of the United Nations The Charter and other norms of general international law form the fundamental legal basis for military activities in the eez. The Charter applies to the eez. On the one hand, pursuant to the ‘prevailing article’ of Art. 103 and international practices, the obligations of the States under the Charter not only prevail over ‘other treaty commitments’, but also over customary international law.74 The Charter, as the “superior constitution”75 of the Convention and the constitution of the international community as a whole, is binding on all Members

74 75

See International Law Commission, “Fragmentation of International Law:  Difficulties Arising from the Diversification and Expansion of International Law,” A/​CN. 4/​L. 682/​ Add.1, 2 March 2006, paras. 329 and 345. Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), preamble 7, pp. 14–​15.

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of the United Nations.76 On the other hand, the Preamble to the Convention establishes a kind of systematic link between the Convention and the Charter.77 The seventh paragraph in the Preamble to the Convention also notes the, ‘[Belief] that the codification and progressive development of the law of the sea achieved in [the losc] will contribute to the strengthening of peace, security, co-​operation and friendly relations among all nations in conformity with the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world, in accordance with the Purposes and Principles of the United Nations as set forth in the Charter.’ It indicates the role of the Convention as ‘supplementing the UN Charter’ and as ‘in one sense providing by-​laws to the Charter’ whilst ‘it could in another sense be considered a constitution of its own right, albeit one subsidiary to the UN Charter’.78 The obligations under Article 103 of the Charter encompass binding resolutions adopted by the Security Council under Chapter vii of the Charter. The Charter and such binding resolutions of the Security Council all form the fundamental legal basis for military activities in the eez. They prevail over any other international treaties, including the Convention, and are binding on all States.79 The seventh paragraph of the Preamble to the Convention makes general references to the purposes and principles of the United Nations, which are also the purposes and principles of the Charter. The military activities in the eez must abide by these purposes and principles, including but not limited to maintaining international peace and security, developing inter-​state friendly relations, promoting international cooperation, sovereignty equality, international justice, prohibition of the threat or use of force, as well as non-​ interference in internal affairs. Territorial integrity and political independence are the primary elements of the sovereign equality of States. They are the supreme and fundamental 76 77 78 79

See B.  Fassbender, The United Nations Charter as the Constitution of the International Community (Nijihoff 2009), pp. 116, 147 and 148. Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck·Hart·Nomos, 2017), p. 15. See Shirley V.  Scott, “The LOS Convention as Constitutional Regime for the Oceans”, in: Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (Brill, 2005), pp. 19–​20. See Robin Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary (Oxford University Press, 3rd edn. 2012), p. 2116; R. Churchill, “Conflicts between United Nations Security Council Resolutions and the 1982 United Nations Convention on the Law of the Sea, and Their Possible Resolution”, International Law Studies, Volume 84, p. 148.

264 Ma interests of States, and also the objects for protection under the principles of the prohibition of the use of force and non-​interference of internal affairs. In terms of the eez, territorial integrity and political independence serve as the basis for the sovereign rights of the coastal State concerning natural resources and economic development in its eez, as well as the jurisdiction of the coastal State over its artificial islands, installations and structures, marine scientific research and marine environmental protection. Any State, at any time and anywhere, shall not infringe upon or interfere with the territorial sovereignty and political independence of other States by the means of threat or use of force, and shall not interfere in the internal affairs of other States by means of political and economic coercion. The eez does not constitute the territory of a coastal State. While activities in foreign eez or in the airspace thereupon are not directly concerned with the infringement on territorial sovereignty or political independence of the coastal States, such activities might have the possibility of endangering the territorial sovereignty and security interests of the coastal States. The consequence and impacts of the internationally unlawful conduct might constitute infringement on territorial integrity and political independence of the coastal State in question. Moreover, the conduct of activities in eez s must also comply with general international law including customary international law. The scope of general international law is very broad, including arms disarmament treaties and treaties applied to specific areas. For the former, treaties on the prohibition of wmd are typical examples: they include the 1968 Treaty on the Non-​Proliferation of Nuclear Weapons, the 1972 Biological Weapons Convention, and the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, which impose restrictions on arms and weapons and are applicable to activities in the eez. In general international law, there is no general prohibition of the military activities of States which are restricted only in some specific international domains such as in respect of Antarctica or the outer space where there are relevant treaties in place. In some regions, groups of States have established nuclear-​free zones by way of treaties, including the 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America, the 1985 South Pacific Nuclear-​Free Zone Treaty, the 1996 African Nuclear-​Weapon-​Free Zone Treaty, the 2006 Central Asia Nuclear-​Weapon-​ Free Zone Treaty, and the 2011 Southeast Asia Nuclear-​Weapon-​Free Zone Treaty. In these regions, nuclear weapons are prohibited. In addition, the international law applied to the eez s also includes general international law rules on State responsibility, as well as State immunity such as judicial immunity of warships and aircraft.

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3.2 The United Nations Convention on the Law of the Sea The Convention is the major legal basis for military activities in the eez. According to the Convention, apart from the principle of peaceful purposes or peaceful uses, the military activities of each State in the eez should comply with the following rules: Firstly, reciprocal ‘due regard’. The eez is an area that the coastal States and other States jointly share the rights and obligations. The Convention prescribes the rule of reciprocal due regard, i.e. coastal States and other States are under the mutual obligation to have regard to the rights of each other and dedicate to reducing the interference. On the one hand, according to Article 56(2), in exercising its rights and performing its duties under the Convention in the eez, the coastal State shall have due regard to the rights and duties of other States. On the other hand, Article 58(3) of the Convention prescribes that in exercising their rights and performing their duties under the Convention in the eez, other States shall have due regard to the rights and duties of the coastal State. The above provisions have sought to strike a balance between the rights and interests of the coastal States and those of other States in the eez. In terms of the scope of rights for which due regard is required, apart from the rights of the coastal States and other States in the eez, the basic rights of States in territorial sovereignty, political independence and peaceful security and order shall be within the scope of due regard. These rights are fundamental to the States, at any time and anywhere, and no infringement thereupon is permitted. With respect to the nature of this “due regard” obligation, some take the view that the mutual obligation to have due regard must be considered as being of a procedural nature.80 Others believe that this due regard obligation on the part of the coastal State is an ‘obligation of conduct’, not an ‘obligation of result’.81 Both these points of view are rebuttable. The essence of mutual due regard is to ensure that the lawful rights of parties be well respected and protected. Thus, it is a combination of procedural and substantial rights, as well as an integration of obligations of both conduct and result. Secondly, good faith and the prohibition of the abuse of rights. Article 300 of the Convention prescribes that States Parties shall fulfill in good faith the obligations assumed under the Convention and shall exercise the rights, jurisdiction and freedoms recognized by the Convention in a manner which would not constitute an abuse of right. This article establishes the principle of good 80 81

See Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), pp. 431 and 455. See Efthymios Papatavridis, “Intelligence Gathering in the Exclusive Economic Zone”, 93 International Law Studies (2017) 446, p. 458.

266 Ma faith, requiring States to fulfill two obligations. One is to fulfill the obligations under the Convention in good faith; the other is to refrain from the abuse of rights when exercising their rights. These two obligations is the application of the good faith principle to both treaties and the exercise of rights. The principle of good faith is not only a general principle of law, but also a general principle of international law.82 It is set forth in Article 2(2) of the Charter of the United Nations, and also embodied in Article 26 of the Vienna Convention on the Law of Treaties.83 This principle applies not only to treaties, but also applies to the international law more generally.84 In terms of its application to treaty relations, the principle of good faith requires all States to perform and interpret treaties, including the losc, in good faith. Fulfillment of obligations under the Convention is the necessary requirement and inherent meaning of the principle of pacta sunt servanda. Article 300 imposes a positive injunction on the parties to act in good faith. It is more than a moral standard and has a definite legal content.85 Moreover, “Article 300 contains an implicit requirement that the terms of the Convention must be interpreted in good faith when the obligations are fulfilled.” “Any interpretation which is not made in a spirit of good faith cannot be said to conform to the requirement to fulfill the obligations in accordance with this principle.”86 The principle of good faith, while applying to the exercise of rights, prohibits the abuses of rights. In other words, the prohibition of abuse of rights is a result of/​consequential upon the application of the principle of good faith to the exercise of rights.87 As the Appellate Body of the wto pointed out in discussing the prohibition of abuse of rights that, “the principle of good faith … controls the exercise of rights by States. One application of this general principle, the application widely known as the doctrine of abus de droit, prohibits 82

wto, United States-​Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/​DS58/​AB/​R, para. 158, available at: https://​ www.wto.org/​english/​tratop_​e/​dispu_​e/​cases_​e/​ds58_​e.htm. 83 See icj, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), Preliminary Objections, Judgment of 11 June 1998, icj Reports (1998) 275, p. 296 (para. 38). 84 See Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1953), pp. 105–​136. 85 See Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 1939. See also Markus Kotzur, Good Faith, Max Planck Encyclopedia of Public International Law, para. 22. 86 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), pp. 1939–​1940. 87 See Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1953), pp. 121–​136.

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the abusive exercise of a state’s rights and enjoins that whenever the assertion of a right ‘impinges on the field covered by [a]‌treaty obligation, it must be exercised bona fide, that is to say, reasonably.’ An abusive exercise by a Member of its own treaty right thus results in a breach of the treaty rights of the other Members and, as well, a violation of the treaty obligation of the Member so acting.”88 The doctrine of abuse of rights in international law refers to “a State exercising a right either in a way which impedes the enjoyment by other States of their own rights or for an end different from that for which the right was created, to the injury of another State.”89 Jurists of international law have listed three distinct situations where an abuse of rights may arise. Firstly, “a State exercises its rights in such a way that another State is hindered in the exercise of its own rights and, as a consequence, suffers injury.”90 Secondly, “a right is exercised intentionally for an end which is different from that for which the right has been created, with the result that injury is caused”.91 Thirdly, “the arbitrary exercise of its rights by a State, causing injury to other States but without clearly violating their rights, can also amount to an abuse of right.”92 According to international practices, a fundamental element for applying the principle of abuse of rights is the existence of injury resulting from an abuse of rights.93 Thirdly, the obligation of protection and preservation of the marine environment. Under Article 56(1)(6)(iii) of the Convention, the coastal State has jurisdiction with regard to the protection and preservation of the marine environment. Such jurisdiction includes legislative/​prescriptive and enforcement jurisdiction.94 In respect of legislative jurisdiction, the Convention requires 88 89 90 91 92

93 94

wto, United States -​Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body of 12 October 1998, WT/​DS58/​AB/​R, para. 158, available at: https://​ www.wto.org/​english/​tratop_​e/​dispu_​e/​distabase_​wto_​members4_​e.htm. Alexandre Kiss, ‘Abuse of rights’, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Vol. i, p. 20, para. 1. See Alexandre Kiss, ‘Abuse of rights’, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Vol. i, p. 20, para. 4. See Alexandre Kiss, ‘Abuse of rights’, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Vol. i, p. 20, para. 5. See Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 1942; and also see Alexandre Kiss, ‘Abuse of rights’, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Vol. i, p. 20, para. 6. See Alexandre Kiss, ‘Abuse of rights’, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Vol. i, p. 20, para. 31. Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press, 2nd. edition, 2015), p.133.

268 Ma States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping (Articles 210(1) and 211(5)). As for enforcement jurisdiction, the Convention provides for enforcement jurisdiction of the coastal State with regard to the regulation of dumping and ship-​borne pollution. Violations of such law and regulations committed by foreign vessels in the eez are categorized in terms of the extent of damage caused, in relation to which the coastal States can take corresponding measures. The Convention also imposes limitations on the scope of inspection and penalties. The coastal State shall allow the vessel to proceed whereby a reasonable bonding has been assured (Article 220). In respect of judicial procedure, the jurisdiction of the flag State prevails over that of the coastal State (Article 228). Foreign vessels, when navigating through the eez, shall accept the jurisdiction of the coastal State over pollution and its control over natural resources. Fourthly, compliance with the laws and regulations of the coastal State. Article 58(3) requires that in exercising their rights and performing their duties under the losc in the eez, States shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the Convention and other rules of international law in so far as they are not incompatible with Part v of the Convention. Although the Convention grants judicial immunity to military ships and other government ships for non-​commercial purposes, such immunity does not mean that military ships enjoy the rights to act in contravention of the Convention. While navigating through the eez, the military ships of any State shall abide by the laws and regulations of the coastal State. That being said, such domestic laws of the coastal State are subject to two conditions: conformity with the Convention and other international law rules, and compatibility with the provisions on the eez. The laws and regulations of the coastal States mainly include laws on marine resources protection law, marine environmental protection law, maritime traffic safety and marine scientific research management. Furthermore, navigation in the eez shall also abide by the generally accepted international standards regarding navigation in the vicinity of safety zones. Under Article 60 of the Convention, the coastal State shall have exclusive jurisdiction over the artificial islands, installations and structures in its eez, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. Also, the coastal State shall may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures, not exceeding a distance of 500 metres. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones (Article 60 (4), (5) and (6) of the Convention).

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Fifthly, abide by rules regulating navigation and overflight on the high seas. The Convention and other international law rules have specific provisions on navigation and overflight on the high seas, by which other States must abide by. On the one hand, the activities are subject to the rules regulating the eez. Under Article 58(2) of the Convention, ‘Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with [Part v].’ The actual effect of this article is to expand upon the scope of obligation of the flag State from the high seas to the eez. The application of the freedom of the high seas to the eez is conditional mainly upon the following. The first is that high seas must be reserved for peaceful purposes and the obligations of general rules on navigation are fulfilled. The second is that the freedoms of navigation, overflight and the laying of the submarine cables and pipelines on the high seas enjoyed by other States are not incompatible with Part v of the Convention on eez s. The rights incorporated in Article 58(1) do not reflect the rights within the regime of the high seas.95 The freedoms of the high seas incorporated into the eez regime are different from those applied in the high seas, whether in terms of quantity or quality. Meanwhile, Article 58(3) of the losc provides that, in exercising their rights and performing their duties under this Convention in the eez, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with Part v. On the other hand, the activities are subject to the rules regulating the high seas. According to Article 87(2) of the losc, the freedoms of the high seas shall be exercised with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. In addition to the general limitation imposed by the losc and other international law on all freedom of the high seas, specific freedoms are under specific constraints. As for the freedom of navigation, specific limitations include the duty to save lives (Articles 94 and 98), and the duty to protect the environment (Article 192) and control pollution (Part xii). Meanwhile, the limitations also include the duty to take law enforcement measures, such as the duty to cooperate in the repression of piracy with the authorized law enforcement right (Article 100), the duty to prevent the transport of slaves (Article 99), the

95

See Efthymios Papastavridis, “Intelligence Gathering in the Exclusive Economic Zone”, 93 International Law Studies (2017) 446, p. 460.

270 Ma suppression of illicit traffic in narcotic drugs or psychotropic substances (Article 108), the suppression of unauthorized broadcasting from the high seas (Article 109), and hot pursuit of vessels which have breached local law in waters under coastal State jurisdiction onto the high seas (Article 111), etc. The above limitations on the freedoms of navigation in the high seas also apply to the freedom of overflight in the high seas. Meanwhile, these constraints on the freedom of navigation and overflight in the high seas also apply to navigation and overflight in the eez. According to the above legal rules, military activities in the foreign eez s must comply with the following. First, the actors must refrain from the threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or from the interference with the internal affairs of the coastal State in any other manner. Second, they must refrain from interfering with or impairing the sovereign rights of the coastal State to conserve and manage the natural resources (Article 56(1)(a)); Third, they must refrain from interfering with the jurisdiction of the coastal State to establish and use artificial islands, installations and structures (Article 56(1)(b)); Fourth, they must refrain from interfering with or impairing the jurisdiction of the coastal State to protect and preserve marine environment (Article 56 (1)(b)), Article 62, Article 77, Part xiii); Fifth, they must not be to allowed to carry out marine scientific research without the consent of the coastal State or in violation of other provisions of the losc. Any State which violates international law would bear international responsibility for such violation. To respond to unlawful conduct under international law, the injured State is entitled to adopt preventive and reactive measures, including the self-​protecting measures such as armament, and to take countermeasures in due time. With respect to armed attack or threats, the State under attack can exercise the right of self-​defence when necessary, or resort to the Security Council for sanctions or military action. With respect to unlawful conduct which impairs the right concerning natural resources, the marine environment, artificial islands, installations and structures, the coastal State has the right to adopt the corresponding law enforcement and judicial measures to investigate issues of legal responsibility. iii

The Determination of Legality of Military Activities in eez s

Military activities in the eez s are mainly activities carried out by military ships and aircraft within the eez and the airspace thereon. In practice, there does not exist a universally recognized criterion for the categorization of military

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activities in eez s. A  number of authoritative scholars sum up the possible forms of military activities in the eez s, including navigation, overflight, collecting strategic and military information, emplacement of buoys and other navigation devices, emplacement of conventional weapons such as mines, building installations for launching missiles, emplacement of anti-​submarine warfare devices, and storage and supply facilities and logistical support in general.96 These activities basically reflect the current major forms of military activities in eez s. Of course, dynamic as they are, these forms of activities will evolve with the development of human activities in depth and scope, as well as with the advancement of science and technology. Scholars have sought to categorize the above military activities from different perspectives. Professor Charles E. Pirtle, coming from the perspective of maritime rights, divides military activities into two categories of user rights, i.e. “movement rights” and “operational rights”. In relation to eez s, the former involves navigation and overflight, while the latter involves task force maneuvering, anchoring, intelligence collection and surveillance, military exercises, ordnance testing and firing, and hydrographic and military surveys.97 Professor Boleslaw Adam Boczek classifies military activities into navigational military uses and non-​navigational military uses, according to whether there is navigation involved.98 Professor Natalie Klein considers that, apart from non-​armed conflict including intelligence gathering, training of forces, testing and use of vessels and equipment and installations, as well as weapons tests, military activities in the eez s should also include those amounting to armed conflict.99 This classification is similar to that of military activities in the territorial sea under the losc. The above classifications have been derived for different purposes and needs, and each of them has its own values and rationality. Nonetheless, from the perspective of international law, the more reasonable approach may be to classify military activities by reference to their legality. Under this approach, 96

97 98 99

See Boleslaw Adam Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law (1988) 445, pp. 447–​448. And also Boleslaw Adam Boczek, “Peaceful Purposes Reservation of the UN Convention on the Law of the Sea”, the 8 Ocean Yearbook (1989) 329, p. 329, footnote 2. See Charles E. Pirtle, “Military Use of Ocean Space and the Law of the Sea in the New Millennium”, 31 Ocean Development and International Law (2000) 7, p. 8. See Boleslaw Adam Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law (1988) 445, pp. 447 and 452–​454. See Natalie Klein, Maritime Security and the Law of the Sea (Oxford University Press, 2011), p. 43.

272 Ma military activities may be classified into two categories: those for peaceful purposes, and those for non-​peaceful purposes. Only the former category is permissible. 1 Basis for the Legality of Military Activities in eez s In order to decide whether the activities of military ships and aircraft in foreign eez s are legitimate, one needs to consider three layers of legal factors. The first concerns whether such activities are in accordance with the peaceful purposes clause in the losc, including the principle of the prohibition of the threat or use of force. As to the specific circumstances which constitute a threat or use of force as set forth in Article 301 of the losc, the determining criteria are identical to those provided in Article 2(4) of the UN Charter. It should be emphasized that the threshold of armed force is relatively high. It is generally considered that, “the threat of force forbidden by Article 2(4) requires a coercive intent directed towards specific behaviour on the part of another State”, and “[o]‌nly a threat directed towards a specific reaction on the part of the target State is unlawful under the terms of Article 2(4).”100 The piling-​up of military arms or the conduct of military exercises, though implying a potential threat of force against a given State, would not in itself constitute a prohibited threat of force.101 If one State’s naval assets assemble in the eez of another State and makes political demands, this will be a typical example of the threat of force.102 Against the backdrop of bilateral relationships and regional situations, particularly during intense conflicts between States, if foreign military ships and aircraft conduct military manoeuvre or exercises, aggressive intelligence gathering or military surveys in foreign eez  s or in the airspace thereon, especially accompanied with coercion, such activities may constitute an unlawful threat of force. In aggravated situations, these may even be regarded as preparatory to acts of war or armed conduct constituting an unlawful use of force. Second, whether there is a legal basis for such activities would mainly depend on whether the relevant activities are in conformity with Article 58(1) concerning the freedoms of navigation, overflight and of the laying of submarine cables and pipelines, as well as “other internationally lawful uses” relating

100 Bruno Simma (eds.), The Charter of the United Nations: A Commentary (Oxford University Press, 3rd edn. 2012), p. 218. 101 See Constantinos Yiallourides, Markus Gehring and Jean-​Pierre Gauci, “The Use of Force in relation to Sovereignty Disputes over Land Territory”, May 2018, British Institute of International and Comparative Law, p.46. 102 See Moritaka Hayashi, “Military and Intelligence Gathering Activities In the EEZ: Definition of Key Terms”, 29 Marine Policy (2005) 123, p. 126.

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thereto, or whether they fall within the scope of “residual rights” set forth in Article 59. In order to ascertain whether the above provisions are applicable to the relevant activities in question, the key lies in determining the major purpose and task of the activities, instead of their names or forms in which warships, military aircraft have been deployed or in which military activities have been conducted. In order to decide whether the activities in question fall within the freedoms of navigation, overflight and of the laying of marine cables and pipelines as set forth in Article 58(1), it is crucial to ascertain whether pure transit or movement is the major purpose of the activities in question. In order to decide whether the activities in question fall within the scope of other military activities with “other internationally lawful uses” related to the freedoms of navigation, overflight and of the laying of submarine cables and pipelines as set forth in Article 58(1), as mentioned above, it is crucial to determine whether such activities are related to but different from the freedoms of navigation, overflight or of the laying of submarine cables and pipelines and the legality thereof. If the main purpose and task of the relevant activities are military actions by military ships and aircraft, while navigation, overflight and the laying of submarine cables and pipelines only act as tools or carriers, such activities may be regarded as activities with “other internationally lawful uses” related to the freedoms of navigation and overflight provided in Article 58(1). This category of military activities is different from those mainly aimed at transit or movement and made up of navigation and overflight. Instead, they are other special military activities carried out by means of ships and aircraft with a main purpose other than that of navigation and overflight. In order to decide whether the military activities in question fall within the scope of “residual rights” as provided in Article 59 of the losc or as residual military activities, it is crucial to consider the major aspect of such activities carried out by military ships and aircraft, that is whether such activities take military conduct as their main purpose and task. The residual military activities, as a sui generis category, is not only different military navigation and overflight whose core is transit or movement, but also distinct from other military activities supported by ships and aircraft. As the attribution of rights of residual military activities is not clear, one needs to resort to Article 59 concerning the resolution of conflicts regarding the attribution of rights. The attribution of rights of residual military activities is quite uncertain. Third, as to whether such rights are in conformity with the losc and other international law rules, this would mainly involves the issue of whether the exercise of rights in the eez s is accordance with the rules of international law

274 Ma referred to in Part ii.3 of this article, such as those relating to the concepts of due regard, good faith and abuse of rights mentioned above. The Identification and the Application of Law with Respect to Specific Military Activities in eez s Military activities in the foreign eez s take various forms. To characterize specific military activities as lawful or unlawful (i.e. prohibited), the analysis should be based on a case-​by-​case analysis, and no generalization could be made. 2

2.1

The Navigation and Overflight of Military Ships and Aircraft in eez s Continuous passage through the eez s of other States by foreign military ships and aircraft, on the basis of peaceful purposes, is generally regarded as forming part of the freedoms of navigation and overflight as set forth in Article 58(1). However, if, during their navigation or overflight, the foreign military ships and aircraft in question interfere with any communication system, electronic system or other installation or equipment, threaten equipment security, or carry out military provocations, the ship or aircraft in question could hardly be regarded as conducting normal and pure navigation or overflight. These may well constitute internationally unlawful acts, instead of activities falling within “other internationally lawful uses”. 2.2 Military Exercises and Manoeuvres and Weapon Testing The characterization of military exercises and manoeuvres in foreign eez s is controversial. Traditional maritime powers consider such rights fall within the freedoms of navigation, overflight or other internationally lawful uses as provided in Article 58(1) of the losc. However, this view has been questioned by many developing States. For example, Bangladesh, Brazil, Cape Verde, Pakistan, Malaysia and Uruguay have maintained that without the consent of the coastal State, such military activities are not allowed in the eez s. In practice, different circumstances require different identification of military exercises and manoeuvres in the eez s. When the bilateral relationship and regional situations in question are highly intense, any large-​scale targeted military exercises or manoeuvres by a State with any weapon within the eez of the coastal States may be regarded as provocation against the State in question. Similar to coercion, the threat of force may arise in violation of the principle of the prohibition of the threat of force as contained in the UN Charter and the losc. But if the relevant situation has been determined by the Security Council as a threat to the international peace and security, or if there

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arise armed attacks or urgent threats of armed attack, military manoeuvres or exercises by a State under such circumstances will not violate international law as a matter of principle. When the bilateral relationships and regional situation in question are stable, it seems that small-​scale military manoeuvres or exercises of purely defensive nature by foreign military ships and aircraft in the eez s without using weapons may be considered as “other internationally lawful uses” related to the freedoms of navigation or overflight. However, if military ships and aircraft carry out large-​scale targeted military manoeuvres or exercises of offensive nature with weapons, it is hard to classify them as “other internationally lawful uses” related to the freedoms of navigation or overflight. Instead, they should be considered as a sui generis residual military activities. The 2017 Commentary on losc indicates that, naval military manoeuvres and the like ought to be considered as falling within the scope of Article 59, taking into account that the sovereign rights and jurisdiction of the coastal State in no case provide a sufficient legal basis for the regulation of the respective activities.103 Under this circumstance, the conflicting parties should settle the attribution of rights with respect to military exercises or manoeuvres under the framework of Article 59. On the other hand, as mentioned above, many developing States have explicitly opposed the testing of weapons in foreign eez s. Brazil, India, Bangladesh, Malaysia, Pakistan, Uruguay and Cape Verde, for instance, maintain the position that weapon testing is not permissible in the eez s without the consent of the coastal State. In principle, specific weapon testing in foreign eez s should not be categorized as “other internationally lawful uses” related to the freedoms of navigation or overflight. As Professor Tullio Scovazzi has noted, it would be more difficult to sustain an argument that an extended test of weapons, such as launching torpedos and firing naval weapons or the covert laying of mines within an eez, are to be included among the uses associated with the operation of ships, aircraft and submarine cables.104 In other words, this category of activities should fall within the residual rights of military activities whose attribution is not clear under Article 59. The conflicting parties should settle the attribution of rights with respect to weapon testing under the framework of Article 59.

103 See Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 453. 104 T. Scovazzi, “The Evolution of International Law of the Sea: New issues, New challenges”, 286 Hague Academy Recueil des Cours (2000), p. 167.

276 Ma Nuclear weapon tests conducted in foreign eez s is a complicated topic. Two important issues are involved. One is the legality of the use of nuclear weapons themselves, which is highly controversial in international law. The current international law does not comprehensively prohibit the use of nuclear weapons. The main object of the 1968 Treaty on Non-​Proliferation of Nuclear Weapons is to prevent the spread of nuclear weapons and to further the goals of nuclear disarmament. The Advisory Opinion of the icj in 1996 indicates that, the use of nuclear weapons would “generally be contrary to” the principles and rules of international humanitarian law, but it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State “in an extreme circumstance of self-​defence, in which its very survival would be at stake”.105 Thus, the Advisory Opinion does not totally deny the legality of nuclear weapons. But according to the Treaty on the Prohibition of Nuclear Weapons adopted in July 2017, States Parties undertake never under any circumstances to (a) develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or nuclear explosive devices; (b)  transfer nuclear weapons or control over such weapons; (e) assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Treaty; (g) allow any stationing, installation or deployment of any nuclear weapons in its territory (Article 1).106 But this Treaty has not entered into force. Even if it had, it would have no legally binding force on non-​State Parties. The same is true with the Comprehensive Nuclear-​Test-​Ban Treaty, which has also not entered into force. Another issue is the identification and the application of law with respect to nuclear weapon tests in the foreign eez s. Obviously, nuclear weapon tests in foreign eez s fall within residual military activities whose attribution is not clear under the Convention. The conflicting parties should resolve the attribution of such rights in accordance with the framework of Article 59. Because nuclear weapon tests carried in foreign eez s may severely impair the security of the State in question and damage its resources and environment, nuclear weapon tests in the eez s of other States should be prohibited in principle.

105 icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, paras. 97 and 105. 106 This Treaty contains 20 articles that enter into force after 50 States have deposited their instrument of consent to be bound (ratification, acceptance, approval or accession). The Treaty does not allow reservations. The text is available from:  https://​treaties.un.org/​ Pages/​ViewDetails.aspx?src=IND&mtdsg_​no=XXVI-​9&chapter=26&clang=_​en.

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2.3 Military Survey, and Military Intelligence Gathering The losc does not specifically regulate military survey or military intelligence gathering. There are two different opinions concerning the nature of the two military activities. The United States and the United Kingdom considers that hydrographic survey, military survey and intelligence gathering in foreign eez s are part of the freedom of navigation or “other internationally lawful uses” as provided in Article 58(1) of the losc, and hence there is no need to respect the regulation of the coastal State. They have put forward two arguments in support of this proposition. First, it is argued that the losc does not prohibit military survey and intelligence gathering by foreign States in the eez s of the coastal States; such limitation only appears in the territorial sea regime.107 Second, it is argued that hydrographic survey and military survey are military activities, which are different from marine scientific research which requires the consent of the coastal State.108 Conversely, States such as India, Iran and China consider that military survey in the eez is under the jurisdiction of the coastal State and subject to its consent. There are two propositions in support of this view. One is the proposition of “same essence”, i.e. military survey and hydrographic survey are essentially the same as marine scientific research activities, to which the regime of State consent applies.109 The other is the proposition of “identity”, that is, military intelligence gathering is a category of marine data collection similar to marine scientific research. As it is difficult/​not feasible to differentiate such activities, they should all be characterized as marine scientific research falling under the jurisdiction of the coastal State.110 Indeed, according to Judge Albert J. Hoffmann of the International Tribunal for the Law of the Sea (“itlos”), the losc does not require the authorization for military activities, including intelligence gathering and surveillance, and

107 See Bernard H. Oxman, The Regime of Warships under the United Nations Convention on the Law of the Sea,24 Virginia Journal of International Law (1984) 809, pp. 844–​847; Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone”, 9 Chinese Journal of International Law (2010) 9, pp. 11–​13; Efthymios Papatavridis, “Intelligence Gathering in the Exclusive Economic Zone”, 93 International Law Studies (2017) 446, p. 471. 108 See Mark J. Valencia, “Military Activities in Foreign EEZs: An Update”, Shicun Wu et al. (eds.), UN Convention on the Law of the Sea and the South China Sea, (Ashgate Publishing Company, 2015), pp. 53–​54. 109 Tim Stephens/​Donald R. Rothwell, “Marine Scientific Research”, Donald R. Rothwell et al. (eds.), Oxford Handbook of the Law of the Sea (Oxford University Press, 2015), p. 571. 110 See Haiwen Zhang, “Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?” 9 Chinese Journal of International Law (2010) 31, pp. 37–​38.

278 Ma military survey in the eez. Neither does it incorporate these activities into the freedom of the high seas applied to the eez.111 A reasonable opinion may be to determine the nature and legality of survey and intelligence gathering on a case-​by-​case basis. There is no general answer to whether hydrographic survey and military survey are governed by the consent-​based marine scientific research regime. Hydrographic survey and military survey differ from marine scientific research in terms of concept, purpose and the utilization of outcomes. As these are separate regimes, it is inappropriate to characterize hydrographic survey and military survey as marine scientific research; in particular, it is not appropriate to characterize all military survey activities, even including those for military purpose, as marine scientific research for peaceful purposes. That being said, while they are separate concepts and regimes, it may be possible to apply the same legal regime in certain areas. The fundamental purpose of the consent-​based marine scientific research regime under the losc is to ensure information security concerning economic value or security interests of the coastal State. In this regard, similar to those obtained from marine scientific research, the data and information collected through hydrographic survey and military survey are directly or indirectly related to the data and information security of the coastal State. The data and information collected through hydrographic survey and military survey have the same economic and security interests as those collected in the course of marine scientific research. As Dr. Mark J. Valencia noted, “for intent and purpose, they cannot be neatly differentiated and are essentially the same” and “[t]‌he distinction between different categories of surveying and msr hinges on more than intent and the initial purpose of collecting the data. Indeed, it seems that the potential economic and security value and utility of the data to the coastal State should also be considered.”112 Based on information security and economic interests considerations, hydrographic survey and military survey should implement the same consent-​based regime as in marine scientific research. In fact, China’s laws differentiate marine or hydrographic survey from marine scientific research. The Law on Surveying and Mapping, the Law on the Exclusive Economic Zone and the Continent Shelf and the Rules of the People’s Republic of China on the Administration of Foreign-​related Marine Scientific 111 See Albert J.  Hoffmann, Freedom of Navigation, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), Vol. vii, p. 571, paras. 17. 112 See Mark J. Valencia, “Military Activities in Foreign EEZs: An Update”, Shicun Wu et al. (eds), UN Convention on the Law of the Sea and the South China Sea (Ashgate Publishing Company, 2015), p. 54.

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Research have respectively made provisions for marine or hydrographic survey and marine scientific research. Both sets of laws have stipulated that marine survey and marine scientific research conducted by foreign organizations and individuals in China’s eez require the consent of the Chinese Government. The 2002 Surveying and Mapping Law provides that the obtaining of data and information such as “determination” and “collection”, within the eez of China, shall be subject to approval by the Chinese Government.113 Also under the 1998 Law on the Exclusive Economic Zone and the Continent Shelf114 and the 1996 Rules of the People’s Republic of China on the Administration of Foreign-​ related Marine Scientific Research,115 marine scientific research by any foreign

113 China objects to the hydrographic and military survey conducted in China’s EEZ. Article 2 of China’s 2002 Surveying and Mapping Law provides that, “all surveying and mapping activities conducted within the territory and other sea areas under the jurisdiction of the People’s Republic of China shall comply with this Law.” Article 2 also provides that, “ ‘surveying and mapping’ mean the activities conducted to determine, collect and present the key elements of physical geography or the shapes, sizes, space positions, and attributes, etc., of man-​made surface installations, as well as the processing and provision of data, information and achievements obtained.” Article 7 provides that, “A foreign organization or individual that conducts surveying and mapping activities within the territory and other sea areas under the jurisdiction of the People’s Republic of China must be subject to the approval of the competent department of surveying, mapping and geoinformation of the State Council jointly with the surveying and mapping department of the armed forces, and must abide by the provisions of relevant laws and administrative regulations of the People’s Republic of China.” 114 Article 9 of China’s 1998 Law on the Exclusive Economic Zone and the Continental Shelf provides that, marine scientific research by any international organization, foreign organization and individual in the exclusive economic zone and the continental shelf of the People’s Republic of China must be subject to the approval of the competent authorities of the People’s Republic of China and must conform to the laws and regulations of the People’s Republic of China. 115 Article 2 of the 1996 Rules of the People’s Republic of China on the Administration of Foreign-​related Marine Scientific Research provides that these Provisions apply to the investigation and research on the marine environment and resources, which are conducted for peace purpose and by use of vessels or other conveyances and installations by international organizations, foreign organizations and individuals independently or in collaboration with the organizations from the People’s Republic of China in the internal seas and territorial seas as well as in other sea areas under the jurisdiction of the People’s Republic of China. Article 4 provides that, a maritime scientific research conducted by a foreign party independently or in collaboration with a Chinese party shall be subject to the approval of the state administrative department of marine affairs， or be reported by the state administrative department of marine affairs to the State Council for the approval, and shall be in conformity to laws and regulations of the People’s Republic of China.

280 Ma organization and individual in China’s eez shall be subject to the approval by the Chinese Government. Military survey is, and continues to be, a controversial issue among States. In principle, military survey carried out by foreign military ships and airplanes in the eez s of the coastal State should belong to residual military activities provided in Article 59 of losc. As it has been observed, the operation of ocean data acquisition is a comparatively strong case for applying Article 59.116 The conflicting parties should resolve the attribution of rights with regard to military surveys under the framework of Article 59. Military survey by foreign military ships and aircraft for the purposes of obtaining general information on navigation safety, and of conducting navigation or overflight in the eez of the coastal State may be regarded as “other internationally lawful use” related to the freedoms of navigation and overflight, provided that they do not interfere with any communication system, nor conduct military provocation against other States, and do not impair the sovereign rights and jurisdiction of the coastal State over its eez. If foreign military ships carry out survey activities for purposes of natural resources exploration in the water column, the seabed and subsoil within the jurisdiction of the coastal State, with the possibility of collection of information on natural resources and other economic interests within the coastal State’s eez, such military survey should be regarded as constituting an exploration of marine natural resources. As such, if the military survey improperly interferes with the sovereign rights and jurisdiction on the natural resources in the eez of the coastal State, or introduces hazardous substances into the eez causing marine pollution, it may constitute an internationally wrongful act. It is acknowledged that there are indeed surveying activities carried out by military ships for scientific purposes.117 If such surveying activities are for the scientific purposes of enhancing understanding of the marine environment, they should be considered as marine scientific research. In terms of military intelligence gathering, it is more complicated and sensitive. In practice, it is mainly the traditional maritime powers who carry out long-​term military intelligence gathering. During peacetime, when foreign States carry out non-​provocative military intelligence gathering in the eez s of the coastal State, the latter rarely responds if its communication system are not interfered with and its defence and security have not been threatened. But 116 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 453. 117 See Donald R.  Rothwell and Tim Stephens, The International Law of the Sea (Hard Publishing, 2nd ed., 2016), p. 416.

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this does not necessarily mean that States have acquiesced to military intelligence gathering by foreign States in its eez. In principle, military intelligence gathering by foreign military ships and aircraft in eez s of the coastal State falls within the scope of residual rights of military activities of which the attribution is uncertain, as provided in Article 59. The conflicting parties should resolve the attribution of rights with respect to military intelligence gathering under the framework of Article 59. However, it may nonetheless be possible that such activities could be for pure communication purposes. As such, the relevant intelligence gathering should be considered as “other internationally lawful uses” related to the freedom of navigation as set forth in Article 58(1). With the advancement of scientific technology, the traditional maritime powers have started utilizing highly intrusive intelligence collecting systems. The increasingly advanced electronic warfare capabilities and the development of information weapons make the eez of the coastal State face new security threats. As Professor Natalie Klein pointed out, “the lack of legal clarity has become especially problematic as technological advances have not only improved the range and accuracy of both weaponry and intelligence collection, but also changed the very art of both warfare and intelligence gathering”,118 and “[m]‌odern means of warfare, especially the use of information warfare and electronic warfare, support an argument that the position should shift to prevent intelligence gathering in another State’s eez.”119 2.4 The Use of Military Devices, Installations and Structures There have been different opinions with respect to the nature of placing and using devices, installations and structures for military purposes. Some understood such activities as other internationally lawful uses of the sea related to “[the freedoms of navigation … and of the laying of submarine cables]”. Others consider such devices, installations and structures as those which do not require the coastal State’s consent as provided in Article 60 of the losc.120 But these two views have not been widely accepted. With respect to whether military devices, installations and structures can be regarded as other internationally lawful uses of the sea “related to [the 118 Natalie Klein, Maritime Security and the Law of the Sea, Oxford University Press, 2011, p. 215. 119 Natalie Klein, Maritime Security and the Law of the Sea, Oxford University Press, 2011, p. 221. 120 See Moritaka Hayashi, Military and Intelligence Gathering Activities In the EEC: Definition of Key Terms, 29 Marine Policy 123 (2005), p. 129.

282 Ma freedoms of navigation … and of the laying of submarine cables]”, Judge Tullio Treves and Professor Boleslaw Adam Boczek consider that certain types of sensor arrays could be related to the freedom to lay submarine cables. They also think that navigation aids for submarines and other warships can be associated with “the operation of ships”.121 A contrary view however considers that certain military devices and antisubmarine tracking systems are irrelevant to and different from navigation.122 The current State practice in this regard is scarce. The use of devices, installations and structures for military purposes appears not to be well publicized for obvious reasons, with the exception of the well-​known deployment of the Sonar Surveillance System by the United States and the former Soviet Union, and the Soviet Ocean Surveillance System deployed on the continental shelf of the United States and in the North Sea and the Mediterranean.123 As such, it is difficult to conclude at present that the use of military devices, installations and structures in the eez s of other States have been generally accepted. Since such use is not specially allocated, it may be more reasonable to characterize it as the residual rights in Article 59, and to resolve disputes according to the procedural guidelines under this article.124 Regarding the issue of foreign military devices, installations and structures, the losc has been silent on the legality of military installations and devices in eez s and there have been different opinions with respect to the interpretation of Article 60. Some maritime powers are of the view that under Article 60, the coastal State shall have the exclusive right in the eez to construct, authorize and regulate the construction, operation and use of installations and structures for the purposes of Article 56 and other economic purposes. However, these installations and structures can only serve ends of natural resources, marine scientific research as well as environmental protection and conservation. As long as the exercise of the right of the coastal State in the eez is not interfered 121 See Tullio Treves, “Military Installations, Structures and Devices on the Seabed”,74 American Journal of International Law (1980) 808, pp. 842–​843; B. Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law Journal (1988) 445, p.  454. And also Moritaka Hayashi, “Military and Intelligence Gathering Activities In the EEZ:  Definition of Key Terms”, 29 Marine Policy (2005) 123, p. 130. 122 See B. Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law Journal (1988) 445, p. 457. 123 See Moritaka Hayashi, “Military and Intelligence Gathering Activities In the EEC: Definition of Key Terms”, 29 Marine Policy (2005) 123, p. 130. 124 See B. Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law Journal (1988) 445, p. 457.

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with, other States have the right to place military installations and structures in the coastal State’s eez.125 However, according to Professor Boleslaw Adam Boczek, the coastal State’s right in the eez is limited to installations and devices as provided in Article 60, which do not extend to devices. This is because devices, such as tracing devices, are not installations, and are beyond the scope of Article 60.126 Indeed Article 60 does not mention “devices”. It is generally considered that “device” is a general concept broader than “installation”, which is reflected in, for example, Article 145(a) and Article 209(2), which refer to “installations, pipelines and other devices” and “installations, structures and other devices” separately. Based on the above, the identification of specific military activities in eez  s, including military exercises or manoeuvres, weapon testing, hydrographic survey, military survey, military intelligence gathering and the use of military devices, installations and structures, are not necessarily same. Traditional maritime powers characterize all these military activities as falling within the scope of the three freedoms of the high seas or other internationally lawful uses related to these freedoms. Such an overtly expansive interpretation of Article 58(1) of the losc, is neither in accordance with the legislative intention of the Convention, nor is universally accepted by the international community. In fact, the above military activities should be identified as residual activities whose attribution is not clear as provided in Article 59 of the losc. The conflicting parties should determine the attribution of rights under the framework of Article 59. iv

The Basis and Procedure to Resolve the Conflicts Regarding the Attribution of Rights of Military Activities in eez s

While the losc does not attribute the rights of military activities in eez s to the coastal State or other States, Article 59 provides general principles for determining the attribution of the so-​called “residual rights” whose attribution is not clear. This Article provides that, “in cases where this Convention does not attribute rights or jurisdiction to the coastal State or other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into 125 See Moritaka Hayashi, “Military and Intelligence Gathering Activities In the EEZ: Definition of Key Terms”, 29 Marine Policy (2005) 123, p. 132. 126 B. Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”,19 Ocean Development and International Law Journal (1988) 445, p. 453.

284 Ma account the respective importance of the interests involved to the parties as well as to the international community as a whole.” According to the above provision, the resolution of the conflicts regarding the attribution or allocation of the rights in the eez s is subject to satisfaction of the following conditions. First, there exist circumstances in which the losc does not attribute rights or jurisdiction to the coastal State or other States within the eez. Second, a conflict arises between relevant interests of the coastal State, and any other State or States. Third, the conflict should be resolved on the basis of equality and in light of all the relevant circumstances, taking into account the importance of the interests involved to the respective parties and to the international community as a whole. These provisions mainly involve the following three issues. 1 Circumstances in Which Residual Rights Rule in Article 59 Applies Article 59 of the losc is considered as a “backup clause”,127 which only applies to circumstances in which rights or jurisdiction within the eez s are not attributed to the coastal State or other States and a conflict arises. In other words, the application of the rule of residual rights needs to satisfy two conditions. First, there exists circumstances in which the attribution of rights is not clear. Second, there exists a conflict between the coastal State and any other State or States concerning rights attribution within eez s. The losc does not contain clear rules with respect to the scope of unattributed rights. It has been opined that Article 59 covers economic uses not included in Article 56 (1) of the losc, as well as other uses of the eez such as the operation of ocean data acquisition systems.128 Also, this conflict concerns attribution of rights within the eez s, not the eez s’s utilization. The term “conflict” in Article 59 suggests that the provision covers situations which have not yet reached the state of a dispute in terms of Part xv, but this should not lead one to ignore that the difference is arguably one of duration and involvement of a third actor rather than of quality.129 In principle, the right of military activities in eez s meets the above conditions regarding residual rights. Articles 56(1) and 58(1) respectively provide for

127 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 460. 128 See Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited”, 26 Ocean Yearbook (2012) 87, pp. 89–​90. 129 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 461.

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the right of the coastal State and other States in the eez s of the coastal State. According to Article 56(1), the coastal State has in its eez sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources, and of economic exploitation and exploration. It also has jurisdiction over the establishment and use of artificial islands, installations and structures, marine scientific research and the protection and preservation of the marine environment. Article 58(1) provides that other States enjoy the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, and “other internationally lawful uses of the sea related to these freedoms”. The losc enumerates and allocates the rights of the coastal State and other States within eez s. Obviously, the right to conduct military activities is not within the above scope. Furthermore, a conflict exists between the maritime powers and developing States regarding the attribution of the rights of military activities. The former considers the right of military activities as belonging to all States, while the latter emphasizes that the coastal State has such right. However, not all military activities in the eez s fall within those of the nature of residual rights. In fact, differences exist between the various military activities in eez s. Some are navigation or overflight, while others are “other internationally lawful uses” related to navigation and overflight. Only those with the main purpose and task of military conduct are activities in the exercise of residual rights. In principle, the targeted large-​scale of military activities conducted by military ships and aircraft with weapons or of an offensive nature should be regarded as residual military activities under Article 59, including military manoeuvre or exercises, specific weapon testing, military survey, military intelligence gathering and the use of military devices, installations and structures. The Criteria for Resolving Conflicts Over Attribution of Residual Rights in eez s Article 59 of the losc provides guidelines to resolve the conflict regarding the attribution of rights. The first is to refer to all the relevant circumstances on the basis of equity. The two elements of “equity” and “all the relevant circumstances” are closely interrelated.130 The criterion of equity refers to equitable principles as part of international law and specially the rules of interpretation that would permit the court to take into account all the relevant circumstances in 2

130 See Myron H.  Nordquist et  al. (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. ii (1993), p. 569.

286 Ma order to avoid extreme injustice and inequities. It is different from the concept of ex aequo et bono under Article 38(2) of the Statute of the International Court of Justice, under which the Court may go beyond the rules of international law in its decision if the parties so agree.131 That being said, this criterion has not been applied in international practice, and there is great uncertainty concerning how to interpret and apply this criterion. Second, to give due consideration to the respective interests of all parties. According to Article 59, consideration should be given to the respective importance to the interests concerned to the parties involved as well as to the international community as a whole. Article 59 reflects the spirit of giving consideration to the interests of all States, including those of the coastal State and other States, and of the international community as a whole. It does not seek to grant any priority to any State (including the coastal States and other States) or the international community as a whole over the rights without clear attribution. As such, any inference that foreign States enjoy the right to conduct military activities in the eez of the coastal State does not accord with Article 59. Indeed, Article 59 is, as Professor Shearer has noted, “an extraordinary article” which appears to negate the legal presumption that any doubts as to rights or jurisdiction should be resolved in favour of the freedoms of the high seas.132 Third, such issue should be decided on a case-​by-​case basis. Article 59 requires such an individual-​cases assessment. Each case should be determined in light of the actual circumstances and on a case-​by-​case basis. The “residual rights rule” in Article 59 provides a basis to resolve the conflicts regarding the attribution of residual rights in the eez s. But as far as the legal basis is concerned, Article 59 does not offer a complete answer. On the resolution of such conflicts or disputes, the specific provision in Article 59 does not exclude the applicability of general provisions within the losc. Such general provisions include those on good faith, prohibition of abuse of rights, the duty to refrain from the threat or use of force undertaken by all States, use of the eez for peaceful purpose, as well as other relevant rules of international law.133 Also, the rule of allocating residual rights in eez s under Article 59 of the losc is relatively general. There appears no straightforward answer for the 131 See B. Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”, 19 Ocean Development and International Law (1988) 445, pp 455–​456. 132 See I.A. Shearer, “Problems of Jurisdiction and Law Enforcement against Delinquent Vessel” (1986) 35 International and Comparative Law Quarterly 320, p. 334. 133 See Efthymios Papastavridis, “Intelligence Gathering in the Exclusive Economic Zone”, 93 International Law Studies (2017) 446, p. 460.

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determination of the attribution of rights. According to some commentators, Article 59 serves as a guidance for allocating residual rights without providing precise answers. It merely requires that conflict be resolved on a case-​by-​case basis by balancing the interests involved, so as to achieve an equitable solution.134 In practice, the attribution of rights is to be determined through negotiation and consultations of all parties, or even resort to dispute settlement procedures under the losc. Accordingly, in order to decide the attribution of rights in eez s as a matter of practice, consideration should be given to such factors as the nature of rights related to the activities, the relationship between the activities and the interests involved, and the interests of each State as well as the international community as a whole. The attribution should be decided based on the balanced interests of each side and individual circumstances of each conflict. There should also be different policy orientations for different activities and related interests. If it concerns resource-​related or economic interests, priority should be given to the coastal State’s interests. As noted in the Virginia Commentary, “given the functional nature of the exclusive economic zone, where economic interests are the principal concern this formula would normally favor the coastal State.”135 As to the interests of navigation and communication, priority should be given to the interests and needs of States other than the coastal State. As the Virginia Commentary has acknowledged, “[w]‌here conflicts arise on issues not involving the exploration for and exploitation of resources, the formula would tend to favor the interests of other States or of the international community as a whole.”136 If security interests are involved, while the security interests of other States and international community as a whole are to be taken into account, sufficient importance should also be attached to the security interests of the coastal State. As mentioned in the Commentary, it seems fair to conclude that the security situation in the area concerned and the intentions of the State conducting the operations cannot be left unattended. At the same time, in light of the balancing process required by Article 59, it would be difficult to defend the argument that foreign naval activities in the eez

134 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 460. 135 See Myron H.  Nordquist/​ Satya N.  Nandan/​ Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. ii (1993), p. 569. 136 Id.

288 Ma should always be automatically less important than the security interests of the coastal State.137 The Commentary also emphasizes that, in case of weapon testing, the equity of interests established in Article 59 would favor the interests of the coastal State in most cases. When the coastal State proposes to ensure its rights and duties of managing resources and protecting the marine environment, other States may be required to explain why the military conduct has to take place in the specific eez, rather than on the high seas or within its own eez.138 While the above deductions may assist in facilitating resolution of relevant conflicts, it is still nonetheless necessary to assess each individual case according to its specific circumstances. 3 Procedures for Resolving Conflicts Article 59 only governs the settlement of conflicts regarding the attribution of residual rights between the coastal State and other States. The losc does not stipulate the consequent procedure of this approach in resolving conflicts. As opined in the Virginia Commentary, once an attempt to resolve a conflict by consensual means has failed, the dispute settlement provisions codified in Part xv ought to be activated.139 According to the dispute settlement procedures provided in Part xv of the losc, disputes concerning military activities in the eez should be settled by peaceful means chosen among parties in the first place. If no settlement has been reached, subject to the exceptions under Article 298, the dispute should be submitted at the request of any party to the four compulsory judicial and arbitral procedures as provided in Part xv, Section 2 of the losc. When one party declares in writing that it does not accept any compulsory third-​party procedure concerning military activities during or any time after signing, ratifying or acceding to the losc, such compulsory dispute settlement mechanism concerning military activities (including the activities conducted by warships) is not legally viable.

137 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 462. 138 Id. 139 Myron H. Nordquist et al. (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. ii (1993), p. 569.

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Lex Ferenda for the Military Activities in eez

In recent years, the lex lata for military activities in the eez under the Convention has faced unprecedented challenges. On the one hand, divergences are increasing on the interpretation and application of relevant articles of the Convention. The Convention’s ambiguity over military activities in eez s has contributed to divergent behaviours by States. In particular, the marine powers have taken their political, economic and military advantages. They abuse the freedoms of navigation and overflight and related ‘other internationally lawful uses’ as prescribed in Article 58(1), seeking to unlimitedly expand their rights in the conduct of military activities and neglect the security interests of coastal States. Also, while Article 59 of the Convention only provides a legal mechanism addressing conflicts of residual rights, there is still great uncertainty concerning the attribution of rights for conducting military activities. The residual rights rule in Article 59 has been lacking of practice so far. Whether it can play a prominent role in resolving rights attribution for military activities in the eez is promising but still uncertain. The fundamental question is whether the military activities fall within the scope of residual rights whose attribution is yet to be determined under Article 59, on which it is difficult to reach consensus between traditional marine powers and developing States at the present stage. In this regard, as a commentator has noted, ‘the Convention leaves open the possibility that disputes regarding residual rights over military activities in the eez may not be clearly resolved until the practice of States convergences or a new agreement emerges.’140 Indeed, there are great challenges facing the provisions on peaceful purposes and uses or the residual rights rule within the Convention in terms of meeting the actual needs of regulating military activities. Furthermore, the provisions of the Convention have not been able to fully meet the ever-​changing needs, and particularly have not been able to regulate new types of military activities that are constantly evolving. With many new forms and approaches emerging, technology advancement has greatly pushed forward the development of military activities in or above the eez including unmanned aerial vehicles (uav s), unmanned surface vessels (usv s), unmanned underwater vessels (uuv s) and the sea glider, which are widely used in military activities and can be weaponized. At the same time, the marine powers have begun deployment of new and highly invasive military

140 Moritaka Hayashi, “Military and Intelligence Gathering Activities In the EEZ: Definition of Key Terms”, 29 Marine Policy (2005) 123, p. 128.

290 Ma intelligence gathering systems in eez s, and electronic or information warfare has been increasingly widespread. Cyber war games may also become a new form of military activities in the eez s. These new types of military activities place the security of coastal States under unprecedented threats. In addition, non-​traditional maritime security threats are intensifying. The 2008 Report of the UN Secretary-​General on Oceans and the Law of the Sea identified seven specific non-​traditional maritime security threats, including Piracy and armed robbery against ships, terrorist acts involving shipping, offshore installations and other maritime interests, illicit trafficking in arms and weapons of mass destruction, illicit traffic in narcotic drugs and psychotropic substances, smuggling and trafficking of persons by sea, illegal, unreported and unregulated fishing and intentional and unlawful damage to the marine environment.141 Most of these non-​traditional maritime security threats may appear in eez s and pose severe challenges to the security of the international community at large. At present, the security of the eez has become an issue attracting widespread attention of the international community. There are actual needs to develop new rules related to the security of the eez in keeping with the times, including the recognition of the security interests of the coastal States in the eez and making restrictions on the military activities of other States in the eez. Aimed at protecting their own security, various States have adopted laws to restrict the military activities of foreign States in their eez s. So far, at least five States, including Cambodia, China, Sudan, Syria, and Vietnam have asserted a security jurisdiction within their 24-​nautical mile contiguous zones.142 Meanwhile, many States have established security jurisdiction in the eez s, prohibiting not only military exercises, manoeuvres and weapons testing, but also seeking to restrict navigation and overflight in the eez s more generally in the interests of national security such as to prevent the proliferation of weapons of mass destruction (wmd).143 The laws of several States have prohibited military activities and exercises as well as weapon tests in their eez s and bans the vessels carrying highly dangerous nuclear substance

141 See Report of the UN Secretary-​General on Oceans and the Law of the Sea, paras. 54, 63, 72, 82, 89, 98 and 107, A/​63/​63, available at https://​daccess-​ods.un.org/​access.nsf/​ Get?Open&DS=A/​63/​63&Lang=E. 142 See Department of Defense, Maritime Claims Reference Manual (mcrm), Department of Defense Instruction 2005.1-​ M, June 2008, available at http://​www.jag.navy.mil/​ organization/​code_​10_​mcrm.htm. 143 See Donald R.  Rothwell and Tim Stephens, The International Law of the Sea (Hard Publishing, 2nd edn., 2016), p. 166.

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passing through their eez s. There has been a growing body of practice indicating the willingness of coastal States to interfere with navigational rights and freedoms on the grounds of maritime security, particularly since the terrorist attacks against the United States in September 2001.144 According to the research of Dr. Sophia Kopela, regarding the freedom of navigation in the eez s, some States have adopted national acts to impose general restrictions, some others impose specific restrictions based on the cargo and type of ship.145 In view of security considerations in or above the eez, some States are gathering information of vessels intending to enter their ports or the eez s, through establishing maritime identification zones146 or using satellite-​based tracking systems,147 so as to identify and prevent potential security threats. Some other States have established air identification zones to take identification and surveillance measures against foreign aircraft entering such zones. In order to address the increasingly intensified maritime security threats, the international community has strengthened the effectiveness of the existing international legal framework, including adopting measures to enhance the jurisdiction of the flag States and port States, and has also further enhanced the effectiveness of judicial and law enforcement measures on the high seas or in the eez. According to international law including the losc, the relevant States enjoy the right to exercise jurisdiction over international offences on 144 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H.Beck · Hart · Nomos, 2017), p. 453. 145 See Sophia Kopela, “The ‘Territorialisation’ of the Exclusive Economic Zone: Implications for Maritime Jurisdiction”, pp. 10–​12, available at: https://​www.dur.ac.uk/​resources/​ibrn/​ conferences/​sos/​s_​kopela_​paper.pdf. 146 In respect of establishing maritime or air identification zones, the US, Japan and Australia all have such practices. Since 2004, Australia has established the Maritime Identification Zone (miz), Australian Maritime Identification System (amis) and Operation Sovereign Borders (osb), requiring the vessels navigating in or outside the eez to provide the information on identity, next port of destination or suspected acts like those concerning migration, in order to strengthen the offshore marine security. From a legal perspective, although the Convention does not have any stipulations on marine identification zone, it is generally believed that the requirement of the coastal States to the foreign vessels navigating in their eez s to provide relevant information under certain circumstances does not violate international law. See Efthymios Papatavridis, “Intelligence Gathering in the Exclusive Economic Zone”, 93 International Law Studies (2017) 446, pp. 461–​465. 147 Such monitoring and surveillance measures are important means for intelligence gatherings in the eez, including the automatic identification system (ais) and the long-​range identification and tracking (lrit) system established by the imo and the European Border Surveillance System (eurosur) established by the EU. See Efthymios Papatavridis, “Intelligence Gathering in the Exclusive Economic Zone”, 93 International Law Studies (2017) 446, pp. 466–​470.

292 Ma the high seas or in the eez such as the transport of slaves (Article 99), piracy (Article 107), illicit traffic in narcotic drugs or psychotropic substances (Article 108), and unauthorized broadcasting (Article 109), as well as to exercise law enforcement jurisdiction including the right of visit (Article 110) and the right of hot pursuit (Article 111) in relation to foreign vessels that are suspected to commit the above-​mentioned offences. As to terrorist acts against shipping and trafficking in weapons of mass destruction, the International Maritime Organization (“imo”) adopted the 2005 Protocol amending the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (“sua Convention”), so as to include the acts such as the proliferation of wmd at seas into the list of the international offences that jeopardize the maritime security. The sua Convention has been amended to include such offences as using a ship in a manner that causes death or serious injury or damage when the purpose of the act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from any act and the transport of weapons of mass destruction or of weapons or equipment that could be used for weapons of mass destruction (Article 3 and Article 3bis(1)). The 2005 Protocol also authorizes a State Party to intercept and conduct the boarding of ships where there are reasonable grounds to suspect that the ship or a person on board the ship is involved in the commission of an offence. A number of international organizations have also taken measures for security protection of the high seas and the eez within their respective mandates, including the introduction of automatic identification system (ais) and the long-​range identification and tracking (lrit) system established by the imo and the European Border Surveillance System (eurosur) established by the European Union. These security measures are not only conducive to the prevention of threats to maritime security for coastal States, but are also beneficial for maintaining the maritime security interests of other States and the international community as a whole. In discussing the legality of the monitoring of vessels in eez s, some commentators have noted that it may be an assertion of an unattributed right consistent with Article 59 if directed to suppressing activities such as terrorism, which could legally, be regarded as an issue of importance to the international community as a whole.148

148 See Donald R.  Rothwell and Tim Stephens, The International Law of the Sea (Hard Publishing, 2nd edn. 2016), p. 167.

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Maritime security may “be understood as the core national defence of a [S]‌tate”.149 In order to address challenges to maritime security, we need not only to make adjustment to the interpretation and application of the existing law of the sea, but also to develop necessary new rules in response of new situations or new demands. As Professor Natalie Klein correctly pointed out, As perceptions of maritime security shift, then in terms of what maritime security holds for the future of the law of the sea, it is clear that further development of the law in this area is in order. Existing gaps and ambiguities will need to be addressed and recognition of new maritime security threats may require responses beyond what has currently been accepted in the law of the sea.150 All States and the international community as a whole have a common interest in maritime security in eez s. In this regard, it is important for States to exhibit stronger political will to accumulate consensus in restricting military activities in the eez. Before reaching the consensus on the relevant rules of general international law, a realistic approach is to facilitate States with similar positions to reach a common understanding on the interpretation and application of the law in relation to military activities in eez s as the first step. It may be hoped that on the basis of the above efforts, more States will take action, including the making of policy declarations, the promulgation of national laws and the conclusion of relevant treaties among States with similar positions. This may generate and contribute to widespread State practice as well as regional practice concerning limitations on military activities in eez, and in the development of new rules of customary international law.

Conclusion

The Convention establishes a regime under which coastal States, other States and the international community as a whole can jointly share the marine space and maritime rights. Coastal States, other States and the international community as a whole enjoy the common interests including the security interests over the eez. For both the traditional marine powers and the coastal States, an expansion of or limitation upon the freedoms in the eez beyond 149 Natalie Klein, Maritime Security and the Law of the Sea, Oxford University Press, 2011, p. 321. 150 Ibid., p. 326.

294 Ma the boundaries of the Convention in pursuit of their parochial interests would only intensify conflicts and jeopardize the common interests of all parties. In the present interconnected world where we share common safety and security concerns, a zero-​sum game is not in line with the current times. Only with mutual due regard and cooperation in maintaining common interests and achieving win-​win results, may there be harmonious coexistence in the eez with maximization of security interests for all parties concerned.

­c hapter 12

Freedom of Navigation: Practices of Vietnam Lan-​Anh T. Nguyen* Abstract Freedom of navigation is a customary right codified into the 1982 United Nations Convention on the Law of the Sea (1982 unclos) which covers both innocent passage in the territorial seas and free passage in the Exclusive Economic Zones of coastal States and high seas. Under the 1982 unclos, freedom of navigation is a non-​discriminatory right applied to all types of vessels regardless of their nationalities. As a member of the 1982 unclos since 1994, Vietnam has incorporated into its national legislations provisions on freedom of navigation, along with other regulations on safety of navigation, sea-​lane designation and marine environment protection. The incorporation process witnessed two separate periods of development. From 1980 to 2012, under Vietnam’s laws, there was no explicit provision on free passage, and the innocent passage of war ships shall be subject to prior notification to and authorisation of Vietnam due to national security concerns. After 2012, free passage was expressly recognised in the Exclusive Economic Zone of Vietnam and high sea. The requirement for prior authorisation for innocent passages of war ships was also removed for better fulfillment of Vietnam’s treaty obligations under the 1982 unclos. The prior notification requirement, nevertheless, remained with the purpose to facilitate safety of navigation. Failing to make prior notification would not be a bar to warship conducting innocent passage in the territorial sea of Vietnam.

Keywords Vietnam  –​freedom of navigation  –​warships  –​prior notice  –​South China Sea  –​ territorial sea

* Associate Professor Lan-​Anh T. Nguyen is Deputy Director General of the Institute for East Sea (South China Sea) Studies and Vice Dean of the International Law Faculty of the Diplomatic Academy of Vietnam.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_016

296 Nguyen Since 1609, Hugo Grotius had discussed the principle of mare liberum in his famous book of the same title,1 where he elaborated a principle that under the law of nations, navigation is opened for everyone.2 Since then, through state practices, freedom of navigation has been crystalized into a customary right and was codified into the 1982 United Nations Convention on the Law of the Sea (1982 unclos). Freedom of navigation covers both innocent passage in the territorial seas and free passage in the Exclusive Economic Zones of coastal States and high seas. Under the 1982 unclos, freedom of navigation is a non-​discriminatory right applied to all types of vessels regardless of their nationalities. In the South China Sea, in the early history of two millennium ago, littoral States have observed freedom of navigation.3 Vietnam, a littoral State in the South China Sea, has been following the common practices of the region in respecting this freedom. During the course of Vietnam’s legislation development, however, there were certain limitations to innocent passage of warship in its territorial sea. This paper will explore the practices of Vietnam relating to freedom of navigation and highlight the institutional limitations as well as the radical development in comparison with common states practices as well as Vietnam’s treaty obligations under the 1982 unclos. 1

Freedom of Navigation in Vietnam’s Practices before 1980

In the major span of history, the South China Sea has been part of a traditional long and busy maritime route. For the last two thousand years, traders, monks, priests, pilgrims, marines and troops from different part of the world have sailed through the so-​called maritime silk road which connected the East China Sea, South China Sea, the Indian Ocean, the Arabian Sea and the Persian Gulf.4 It was freedom of navigation that contributed to the nourishment of maritime trade in the region.5 Perhaps, acknowledging of

1 The book was first introduced by Elzevier publisher under anonymous. See introduction by David Armitage in The Free Sea, trans. Richard Hakluyt, with William Welwod’s Critique and Grotius’s Reply, ed. David Armitage (Indianapolis: Liberty Fund, 2004). 2 Hugo Grotius, Mare Liberum, Chapter 1. 3 Kwa Chong Guan, The Maritime Silk Road:  The History of an Idea, Working Paper No.23, iseas –​Yusok Ishak Institute, https://​www.iseas.edu.sg/​images/​pdf/​nscwps23.pdf. 4 Kwa Chong Guan, op. cit., note 3, p.21. 5 Tommy Koh, “21st Century Maritime Silk Road”, The Straight Times, 04 August 2015, https://​ www.straitstimes.com/​opinion/​21st-​century-​maritime-​silk-​road.

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the importance of freedom of navigation to the region, countries in the region also expressed no objection to the freedom of navigation in the South China Sea. China, for example, until 1958 in its Declaration on the breadth of the Chinese territorial sea still recognised the existence of a vast area of high sea in the South China Sea. Malaysia was also pioneering in providing for safety of navigation in its 1966 Continental Shelf Act.6 The Philippines also supported the freedom of other states to navigation and overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea relating to navigation and communications in its Exclusive Economic Zones.7 In such regional context, Vietnam was not an exception. Although Vietnam had no legislation on freedom of navigation before 1980, Vietnam’s practices indicated that freedom of navigation was strongly respected. At the early stage, the only relevant legislations relating to its maritime rights and entitlement was the 1977 Declaration on the establishment of maritime zones and the 1982 Declaration establishing the baseline for measuring its territorial sea.8 In both documents, Vietnam claimed its rights in the maritime zones including internal water, territorial sea, contiguous zone, Exclusive Economic Zone and continental shelf. No specific provision was provided for freedom of navigation. Vietnam’s respect for freedom of navigation could be inferred from its enjoyment of freedom of navigation as well as its contribution towards safety of navigation in the South China Sea. Since the 17th century, the imperialist government of Annam (the name of Vietnam under imperialism) had been navigating freely in the South China Sea to trade with neighbouring countries. Notably, the King also actively exploited the marine resources by establishing the Hoang Sa Company. The “Hoang Sa Company” consisted of 70 seafarers from the coastal commune of An Vinh in central Vietnam was ordered to stay in the Paracels for six months every year to engage in exploitation activities. Revenue collectors and a small local garrison were also set up to collect duty

6 The provision prohibits the construction, erection, placing, or use of installations or devices in, on, or above the continental shelf in places where they could cause interference with the use of recognized sea lanes essential to coastwise or international navigation (Art.6(1)b). For full text, see http://​www.un.org/​Depts/​los/​LEGISLATIONANDTREATIES/​PDFFILES/​MYS_​ 1966_​Act.pdf. 7 Presidential Decree No. 1599 of 11 June 1978 establishing an Exclusive Economic Zone and for other purposes of the Philippines, Session 4. 8 For full text of the Declarations, see http://​www.un.org/​Depts/​los/​LEGISLATION​ ANDTREATIES/​STATEFILES/​VNM.htm.

298 Nguyen from all visitors and to ensure protection of Vietnamese fishermen. The Hoang Sa Company was also in charge of the Bac Hai Company, which “[harvested] valuable sea products and [conducted] salvaging operations to collect cargoes from vessels shipwrecked in the treacherous waters of Truong Sa [Spratlys]”.9 More than just passively respect freedom of navigation, the King of Annam also helped promoting safety of navigation by requesting the Hoang Sa Company to measure and record navigation routes, plant trees on hazard and swallow locations of the Paracels and Spratlys as well as rescue endangered ships.10 2

Freedom of Navigation under Vietnam Legislations after 1980

The first Vietnam legislation on navigation at sea was Decree No. 30-​CP, issued in January 1980 to regulate the operate of foreign vessels on maritime areas of Vietnam. The Decree required foreign military ships to notify and obtain authorisation from Vietnamese authorities prior to its entry into the contiguous zone of Vietnam. The authorisation was to be made via diplomatic channel at least 30 days prior to the date of innocent passage, and the prior notice was to be reported to the Ministry of Transportation up to 48 hours before the ships entered the contiguous zones.11 This was the only provision in Vietnamese legislations at that time that related to freedom of navigation. Although Decree No. 30 was later replaced by Decree No. 55 in 1996 and by Decree No. 104 in 2012, the requirements for prior notification and authorisation on innocent passage of foreign war ships remained the same. These provisions were not an irregularity as practices of countries in the region to the issues of freedom of navigation of war ship were varied at that time. Similar to Vietnam, United Arab Emirates,12 Pakistan,13 Egypt14

9 Le Quy Don, Miscellaneous Records on the Government of the Frontier, Book 2, 1776, classical copy held at the Social Sciences Library, Hanoi, cited in the Hoang Sa and Truong Sa Archipelagoes (Paracels and Spratlys), (Hanoi: Vietnam Courier, 1985), p. 66 and 118. 10 Dinh Thi Hai Duong, “Quản lý và khai thác vùng biển đảo của triều Nguyễn giai đoạn 1802–​1858”, Tạp chí Khoa học Xã hội Việt Nam, 4(101) 2016, p.53 at p.54–​56, http://​ www.vjol.info/​index.php/​khxhvn/​article/​viewFile/​24797/​21220. 11 Decree No. 30-​CP of Vietnam, Article 3(c). 12 Federal Law No. 19 of 1993 in respect of the delimitation of the maritime zones of the United Arab Emirates, 17 October 1993 of the United Arab Emirates, Article 5(2) & 5(4). 13 Territorial Waters and Maritime Zones Act 1976 of Pakistan, Article 3(2) & 3(3). 14 Declaration of Egypt made upon ratification of unclos on 26 August 1983.

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and Yemen15 required prior notification and authorisation for war ships entering into their territorial sea. China,16 Bangladesh,17 Sri Lanka18 and Myanmar19 required prior authorisation for innocent passage of warships through their territorial seas. South Korea20 and India,21 while not requiring prior authorisation, still asked for prior notification. Meanwhile, the majority of states in the region, including the littoral states of the South China Sea required neither prior authorisation nor notification with war ships conducting innocent passage through territorial seas. Thailand, in their statement of the Ministry of Foreign Affairs, even took note of the fact that “several States have now enacted laws and regulations, the effect of which is to restrict the rights of passage and the freedom of navigation of foreign ships in their maritime zones” and emphasised that “all foreign ships, including warships, merchant ships and fishing vessels, can exercise such rights and freedom without having to give prior notification to, or obtain prior permission, approval or consent from, the coastal State concerned regarding their intended passage”.22 The diverse regional practices somehow reflected the cold war perception in the region at that time. Due to security concerns, several coastal States imposed the prior authorisation and/​or notification requirement as a measure to strengthen maritime security. In the case of Vietnam, these provisions were enacted in the context of the great concern on the country security post-​war

15 16 17 18 19 20

21 22

Act No. 45 of 1977 concerning the Territorial Sea, Exclusive Economic Zone, Continental Shelf and other Marine Areas, Act. No. 45 of 17 December 1977 of Yemen, Article 7(a) and 8. Law on the Territorial Sea and the Contiguous Zone of 25 February 1992 of China, Article 6. Territorial Waters and Maritime Zones Act 1974, Act No. xxvi of 1974 of Bangladesh, Article 3(7). Maritime Zones Law No. 22 of 1 September 1976 of Sri Lanka, Article 3(1). Territorial Sea and Maritime Zones Law, l977, Pyithu Hluttaw Law No. 3 of 9 April l977 of Myanmar, Article 9. Enforcement Decree of Territorial Sea and Contiguous Zone Act Presidential Decree No. 9162, 20 September 1978 Amended by Presidential Decree No. 13463, 7 September 1991, by Presidential Decree No. 15133, 31 July 1996, and by Presidential Decree No. 17803, 18 December 2002 of Korea, Article 4. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976 of India (Act No. 80 of 28 May 1976), Article 4(2). Statement of the Ministry of Foreign Affairs of Thailand regarding the position of the Royal Thai Government on the Right of Innocent Passage in the Territorial Seas, etc. For full text, see http://​www.un.org/​depts/​los/​LEGISLATIONANDTREATIES/​PDFFILES/​ THA_​1993_​Statement.pdf.

300 Nguyen while the 1982 unclos had yet to be concluded. Such practices, nevertheless, limited access to the territorial sea of other states based on the customary mare liberum principle.23 Particularly, after the 1982 unclos came into force in 1994 and many countries in the region became parties of the Convention,24 the legal provisions to limit or exclude military vessels of other states from a coastal State’s territorial sea and contiguous zone impeded the unclos-​endorsed freedom of navigation. This, therefore, constituted practices contradiction to international law. 3

Freedom of Navigation under Current Vietnam’s Legislation

Vietnam’s laws on freedom of navigation experienced remarkable changes in 2012 when Vietnam promulgated its national law of the sea.25 The 2012 Vietnam’s Law of the Sea emphasized respect for freedom of navigation and over flight so far as the navigation would not hamper the sovereign rights and jurisdiction of Vietnam in its maritime zones.26 Notably, the requirements for prior authorisation on innocent passage of foreign war ships was removed. Article 12 of the Law expressly recognised the rights to conduct innocent passage of all states in the territorial sea of Vietnam. The positions of Vietnam on freedom of navigation are also reflected in various statements of the Vietnamese Ministry of Foreign Affairs spokesperson since the United States promoted widely and publicly its freedom of navigation operations (fonop) in the South China Sea. Two statements can be analysed due to their significant implications. The first statement by spokesperson Le Hai Binh was on 31 January 2016 emphasizing that Vietnam respects the rights of innocent passage in accordance with relevant provisions of international law, particularly the unclos 1982. Emphasis was also placed on Article 17 of unclos 1982 which provided that “subject to this Convention, ships of all states, whether coastal or land-​locked, enjoy the right of innocent passage through the territorial sea”. The second type of statement by Vietnamese spokesperson

23

Lay Yong Mok et  al. “Post-​SCS Arbitration Developments and Issues on Freedom of Navigation, Rights of Coastal States, and Environmental Protection in the ‘Area’ ”, 10(2) Asian Politics & Policy, 247–​260 at p. 262. 24 Vietnam itself ratified unclos in 1994. 25 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam. The Law entered into force on 1 January 2013. 26 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 16.

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Le Thi Thu Hang was reaffirming that “Vietnam respects the right of freedom of navigation and over flight in accordance with international law”.27 The new Law, however, acknowledged that freedom of navigation exists with due regard to the sovereign rights and jurisdictions of Vietnam and consistent with international obligations on safety of navigation and marine environment protection.28 With regard to innocent passage, similar to the provisions of Article 19 of unclos 1982, Vietnam required the passage to not prejudice peace, independence, good order, security, sovereignty of Vietnam as well as other Vietnamese legislations and treaties to which Vietnam is a party of, and provided a list of actions that could be considered non-​innocent.29 The Law required foreign organizations and individuals, while conducting innocent passage in Vietnam’s territorial sea, to observe Vietnamese laws and regulations on protection of cables and pipelines, conservation of marine living resources, fishing and aquaculture, preservation of the marine environment, prevention, restriction and control of pollution, maritime scientific research and hydrographical surveys as well as other customs, tariff, health and immigration regulations.30 Innocent passage in the territorial sea of Vietnam might be suspended for safeguarding the sovereignty, security and interests of Vietnam, for reasons of national defence, or for securing safety of navigation, protecting marine resources and the marine ecology, combating pollution, tackling maritime accidents or marine environmental disasters, and preventing the spread of epidemics.31 The Law intentionally limited the rights of passage of nuclear-​powered vessel, vessel transporting radioactive, noxious or dangerous substances, submarines and other underwater vehicles. These vessels could only pass through Vietnam’s territorial sea if they carry sufficient technical documents relating to the vessel and cargos, and documents of mandatory civil insurance, and shall provide these documents (upon request) to competent Vietnamese 27

This statement has been repeated several times in 2017 and 2018. The latest statement was made at the 14th regular press conference on the 20 October 2018. For full text, see http://​www.mofa.gov.vn/​en/​tt_​baochi/​pbnfn/​ns181109155500. 28 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 37. 29 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 23(3). 30 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 24(1). 31 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 26. The Law also commited that the suspension or restriction of innocent passage in specified areas in Vietnam’s territorial sea will be made public domestically and internationally on the “Maritime Notice” in accordance with international maritime practice at least 15 days before the suspension or restriction takes effect or immediately after the application of such measure in case of emergency.

302 Nguyen authorities. They shall also fully implement the special precautionary measures established for such vessels by  Vietnamese law and treaties to which Vietnam is a contracting party as well as observed decisions made by competent Vietnamese authorities on the application of special precautionary measures, including ban of passage through Vietnam’s territorial sea or forcing to leave Vietnam’s territorial sea immediately in case there are clear signs or evidence of possible leakage or environmental pollution.32 Foreign oil tankers, nuclear-​powered vessels, vessels transporting radioactive, noxious or dangerous substances while conducting innocent passage in Vietnam’s territorial sea might be further required to use specified sea lanes on a case-​by-​case basis.33 Submarines and other underwater vehicles, while passing through territorial seas of Vietnam, have to operate on the water surface and make known their national flags unless otherwise permitted by the Vietnamese Government or agreed upon between the Vietnamese Government and the Governments of the flag States.34 These limitations, however, are common practices and accepted under unclos.35 In addition to the Law of the Sea, Vietnam also enacted Decree No. 16/​2018 to regulate sea lanes and traffic separation schemes in the territorial sea of Vietnam.36 Although its main purpose was to regulate sea lanes and traffic separation schemes, the Decree also required foreign ships conducting innocent passage to follow Vietnamese legislations and international treaties on safety of navigation and marine environment protection.37 The Decree also urged specialized state agencies in the field, namely the Vietnamese Coast Guard and Border Guard to coordinate when managing the sea lanes to facilitate the innocent passage of foreign ships in the territorial sea of Vietnam.38 In case foreign military vessels violate Vietnamese laws while operating in the maritime zones of Vietnam, the Vietnamese sea patrol and surveillance forces will order them to immediately terminate their violations and, to leave the territorial sea without delay if the vessels are in the territorial sea of Vietnam. Violating vessels have to observe the requests and orders of the Vietnamese sea patrol 32 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 24(2). 33 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 25(2). 34 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 29. 35 unclos, Articles 20 and 23. 36 Decree No. 16/​2018/​NĐ-​CP of 02 February 2018 on regulation of sea lanes and traffic separation schemes in the territorial sea of Vietnam. 37 Decree No. 16/​2018/​NĐ-​CP of 02 February 2018 on regulation of sea lanes and traffic separation schemes in the territorial sea of Vietnam, Article 11. 38 Decree No. 16/​2018/​NĐ-​CP of 02 February 2018 on regulation of sea lanes and traffic separation schemes in the territorial sea of Vietnam, Articles 13–​15.

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and surveillance forces. In case a foreign military vessel or a foreign vessel for official service violates Vietnamese law or relevant international law while operating in Vietnam’s maritime zones, the flag State shall bear responsibility for any damage caused by such vessel to Vietnam.39 Despite great improvement, Vietnam’s Law of the Sea still require prior notification on innocent passage of foreign warships.40 However, no detailed procedures are provided in the Law and other subordinate legal documents of Vietnam. There is provision on neither penalty nor sanctions for failure to make prior notifications. The requirement on prior notification, therefore, is argued to facilitate the safety of navigation, and the removal of the requirement on prior authorisation is already considered a big progress to accommodate the provisions of unclos 1982. Vietnam’s new position regarding innocent passage was adopted in the context that the country has fully integrated with the international community. The law of the sea of Vietnam, although coming into force rather late comparing to other countries in the region, was an effort to fulfil Vietnam’s treaty obligations after its ratification of unclos. During the drafting history of unclos, the United States cooperated with the Soviet Union to promote broader freedoms of negotiation and focused particularly on innocent passage by military ships through territorial waters and transit rights through straits.41 After its codification into unclos, freedom of navigation in general and innocent passage in particular have been widely recognised under state practices. However, several countries in the region still maintained their limitations to freedom of navigation, particularly the innocent passage of military vessels.42 Such limitation would be contrary to the provisions of unclos and create inconsistent practices with international law.43 In such a context, the practices of Vietnam in removing the requirement of prior authorisation and acknowledgement of the freedom of navigation without discrimination was an effort to consolidate this generally accepted norm, contributing to promotion of freedom of navigation. It also illustrated the effort of Vietnam to become a responsible member 39 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 28. 40 Law No. 18/​2012/​QH13 on the Law of the Sea of Vietnam, Article 12(2). 41 Galdorisi and Kaufman, “Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict”, 32 (2002) California Western International Law Journal, p. 253 at 268. 42 The current legislations of China still require prior authorization for innocent passage of warships through its territorial seas. 43 Lay Yong Mok et  al. “Post-​SCS Arbitration Developments and Issues on Freedom of Navigation, Rights of Coastal States, and Environmental Protection in the ‘Area’ ”, supra note 23 at p. 253.

304 Nguyen of the international community, which upholds with good faith obligations assumed by them. Mare liberum has long been a principle recognised under customary international law and later on codified under unclos 1982. However, some coastal States tended to advance instead the principle of mare clausum to expand their sovereignty at the expense of others’ freedom. Vietnam, through its development of national laws, used to pursuit similar approach which limited the innocent passage of military vessels in its territorial sea and contiguous zones. Despite justifiable security concerns as Vietnam was severely scarred by protracted wars, Vietnam recognized that such limitations constituted practice contradicting international law. Therefore, the change of Vietnam’s position in its 2012 Law of the Sea was a radical movement that allows the country to fully comply with international law, setting a good example for others in the region.

pa rt 4 Straits Governance, including Malacca/​Singapore

∵

­c hapter 13

The International Straits Regime: Notes on Uncertainties and “Other” Straits in the Northeast Asia-​Pacific Region Ted L. McDorman* Abstract The international straits regime set out in Part iii of the 1982 UN Convention on the Law of the Sea is universally recognized as one of the critical components of the overall package-​deal that has led to the Convention being ratified by 168 States. The first part of this contribution will point out a number of continuing legal uncertainties concerning the unclos international straits regime including: if a waterway in question has the status of historic internal waters of a coastal State, can that waterway be a strait used for international navigation? –​what constitutes a strait used for international navigation? –​what are routes of similar convenience in the context of straits between an island and the mainland? As most attention on international straits in the Asia-​Pacific region is on the Straits of Malacca and Singapore, the second part of this contribution will look briefly at some the other Straits in the region such as: the Jeju Strait (Korea); the Korean Strait (Japan-​Korea); and the Strait of Hainan/​Qiongzhou (China).

Keywords international straits –​Asia-​Pacific region –​historic rights –​historic waters –​international navigation

1

Introduction

The Straits of Malacca and Singapore have long been the primary focus of attention respecting navigational rights and the international straits regime both * Faculty of Law, University of Victoria, Victoria, Canada.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_017

308 M c Dorman within Asia and often globally. The importance of these Straits for both naval mobility considerations and commercial interests are well-​known. While it is incorrect to state that the Part iii of the los Convention (“Straits Used for International Navigation”)1 was crafted solely or even primarily with the Straits of Malacca and Singapore in mind,2 nevertheless, these Asian straits were among the prominent straits well-​known to the negotiators. This contribution is intend to bring attention to two general topics regarding international straits; while studiously avoiding two other topics. The first topic to be avoided is whether the “international straits regime” in the los Convention is, has or may become customary international law. It is to be noted that: “The United States considers the 1982 Convention on the Law of the Sea (los Convention) to accurately reflect the customary rules of international law concerning maritime navigation and overflight rights and freedoms.”3 One writer has opined that “there appears to be little evidence” of State practice regarding transit passage such that the right of transit passage “has not yet become part of customary international law.”4 Caminos and Cogliati-​Bantz in their 2014 study explores the customary law question in detail concluding that: Between a full translation of Part iii into customary law and a purely conventional interpretation of Part iii, it seems that the most reasonable conclusion is that, although the concept of freedom of navigation and overflight for the purpose of continuous and expeditious transit of a strait between high seas or eez and high seas or eez has been received in customary law, the array of details and conditions that surround the right have not been so received. This means that, overall, the emergence of transit passage as regime of customary international law is still statu nascendi.5

1 U.N. Convention on the Law of the Sea, 1833 U.N.T.S. 397. 2 For a good review of the negotiations, see: David D. Caron, “The Great Straits Debate: The Conflict, Debate and Compromise That Shaped the Straits Articles of the 1982 United Nations Convention on the Law of the Sea,” in David D. Caron and Nilufer Oral, eds., Navigating Straits: Challenges for International Law (Brill/​Nijhoff, Leiden/​Boston, 2014), at pp. 11–​32. 3 United States, Presidential Directive/​NSC-​32, 23 January 2015, reprinted in James Kraska and Raul Pedrozo, International Maritime Security Law (Martinus Nijhoff, Leiden/​Boston, 2013), at p. 213. 4 Yoshifumi Tanaka, The International Law of the Sea, (Cambridge University Press, 2nd ed., 2015), at p.  109 and see generally:  Jon Van Dyke, “Transit Passage Through International Straits,” in Aldo Chircop, Ted L. McDorman and Susan J. Rolston, eds., The Future of Ocean Regime-​Building (Martinus Nijhoff, Leiden/​Boston, 2009), at pp. 186–​187. 5 Hugo Caminos and Vincent P.  Cogliati-​Bantz, The Legal Regime of Straits:  Contemporary Challenges and Solutions (Cambridge University Press, 2014), p. 470. See also: Ana G. Lopez

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Of more relevance than the “rabbit-​hole” of customary international law is what is occurring on the water. In this regard, it has been noted: “That the usa has been a losc non-​party and yet retained all of the rights of a flag State with respect to transit passage rights reflects how widely recognized this area of the law of the sea is” with the further comment that “in the short term, the regime of international straits appears settled …”6 The first topic to be addressed below are some selected “uncertainties in the international straits regime.” While the straits regime was a major component of the overall package deal associated with the los Convention, the straits regime is not understood by all parties involved with the los Convention in the same manner. From a black-​letter-​lawyer point of view such uncertainty or ambiguity may be seen as creating “loop holes” or lacunae. In international law differing understandings or interpretations of treaty text are an inevitable consequence of the reality that each State is an authoritative interpreter of a treaty. Even where the interpretation of a treaty is put before an international court or tribunal, the ruling is only binding as between the parties.7 It is also to be noted that treaty-​language ambiguity is the inevitability of international negotiations particularly in evidence in multi-​state, broad-​scale framework conventions where compromise and trade-​offs are necessary and fueled by consensus decision-​making. This point has be well articulated by two colleagues who have stated: “Like all multilateral accords, unclos reflects compromise inherent in obtaining broad agreement; there is a certain quality of constructive ambiguity in some of the terms.”8 The second topic to be discussed below involves several of the northern Asian straits that receive little or no attention. First, and perhaps of most interest, is the Korean Strait (Western Channel between Korea and Japan’s Tsushima Island and the Eastern Channel between Tsushima and islands adjacent to the Japanese mainland). Other waterways to be noted are: the Strait of Hainan/​ Qiongzhou (China) and the Jeju Strait (Korea). Full disclosure:  Canada has waterways on all three of its coasts (Atlantic, Pacific and Arctic) over which there are disagreements with one of its neighbours (the United States) whether these waterways are or are not subject to

Martin, International Straits:  Concept, Classification and Rules of Passage (Springer-​Verlag, Berlin/​Heidelberg, 2010), at pp.192–​198. 6 Donald Rothwell, “International Straits,” in Donald Rothwell, Alex G. Oude Elferink, Karen Scott and Tim Stephens, eds., The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015), at p. 133. 7 los Convention, supra note 1, Article 296. 8 Kraska and Pedrozo, supra note 3, at p. 199.

310 M c Dorman the international straits regime. The best known of these waterways is the Northwest Passage located within the Canadian islands in the Arctic.9 Nevertheless, Canada supports the package of international legal rights associated with freedom of navigation including transit passage rights for vessels within straits used for international navigation as set out in the 1982 los Convention. While Canadian statements on the freedoms of navigation are rare, in the July 2016  “Canadian Statement on South China Sea Arbitration,” it was asserted that: “Actions that could jeopardize freedom of navigation and overflight exercised in accordance with international law, maritime security and international trade must … be avoided.”10 2

Uncertainties in the Straits Regime

The second topic to be avoided concerns the ambiguities and uncertainties respecting the powers and authority of States bordering international straits over vessels engaged in either transit passage or non-​suspendable innocent passage. One of the significant uncertainties here is well outlined by Natalie Klein and concerns whether a strait State has an enforcement jurisdiction respecting passing vessels.11 The issue concerns the legal authority to take direct action against a vessel that is not complying with the national law of the strait State which is consistent with the transit passage or innocent passage regime or whether the only recourse of a strait State is to complain to the flag State concerning the breach of the law. 2.1 Historic Internal Waters/​an Historic Strait (An Esoteric Ambiguity!) Does or can the los Convention international straits regime apply where the waterway in question are historic internal waters (an historic strait)? Assuming that a claimant State can make the case that a waterway has the legal status of historic internal waters, does this preclude that waterway from being (or

9 10 11

See generally: T.L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (Oxford University Press, New  York, 2009), at pp. 225–​280. Canada, Global Affairs Minister Dion, “Canadian Statement on the South China Sea Arbitration,” 21 July 2016, at . Natalie Klein, Maritime Security and the Law of the Sea (Oxford University Press, 2011), at pp. 84–​86.

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becoming) a strait used for international navigation?12 The los Convention regime does not answer this question directly. Prima facie where a waterway is subject to the regime of historic internal waters the waterway cannot be an international strait as the transit passage rights for international straits was a reaction to the expansion by coastal States of territorial seas from three to 12 M and ensuring a navigational right that was an enhancement of innocent passage. The premise of the international straits regime was the protection of an existing navigational right. If no navigational right previously existed (as a result of historic internal waters) then the international straits regime would not appear to apply. Is this reflected in the los Convention? Article 35(a) indicates that “Nothing in this Part affects:  (a) any areas of internal waters within a strait except where the establishment of [Article 7] straight baselines … has the effect of enclosing as internal waters areas which had not previously been considered as such …” It has been suggested that this wording supports a view that the “international straits regime” does not apply to a waterway that is composed solely of internal waters not created by straight baselines, such as would be the case with historic internal waters.13 On the other hand, it has been argued that the plain language meaning is that “35(a) applies to internal waters within a strait and does not address the status of a strait as a whole.”14 It is the case that this same point appears to be made in Article 34(1) which states that: “The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits.” It is to be noted that in the Convention on the Law of the Sea: A Commentary the authors state: “[A]‌strait used for international navigation may be one composed of internal waters, even without anything to do with the establishment of baselines.”15 Caminos and Cogliati-​Bantz accept this and comment that “whether a given strait could be subject to a customary regime or one based on historic title would … be left to the rules and principles of general international law.”16 They turn, however, to Article 35(c) to determine if “a historic strait” may be subtracted from the applicability of the Convention17 and determine 12 13 14 15 16 17

See: Bing Bing Jia, The Regime of Straits in International Law (Clarendon Press, Oxford, 1998), at p. 75. See Martin, supra note 5, at pp. 69–​70. Caminos and Cogliati-​Bantz, supra note 5, at p. 59. Alexander Proelss, ed., United Nations Convention on the Law of the Sea, (C.H. Beck/​Hart/​ Nomos, Oxford, 2017), at p. 227. Caminos and Cogliati-​Bantz, supra note 5, at p. 75. Ibid., at p. 71.

312 M c Dorman that the answer is “no” as 35(c) refers only to one exemption “long-​standing international conventions.”18 More generally the question involves the relationship between the customary international law concerning historic rights and the los Convention, a topic discussed at length in the recent South China Sea Arbitration.19 2.2 “Used for International Navigation” The principal threshold for the application of the los Convention straits regime (transit passage) is that a waterway in question is one which is “used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”20 The terminology “used for international navigation” is drawn from Article 16(4) of the 1958 Territorial Sea and Contiguous Zone Convention,21 which in turn is derived from the 1949 Corfu Channel Case.22 The Court commented: It may be asked whether the test is to be found in the volume of traffic through the Strait or in its greater or lesser importance for international navigation But in the opinion of the Court the decisive criterion is rather its geographical situation as connecting to parts of the high seas and the fact that it is being used for international navigation.23 The geographic requirement is reasonably clear that the waterway in question is to be a connector of high seas navigation areas. The “used” factor is often referred to as the “functional” criterion and it is the criterion that is questioned as to whether it is required and, if so, when is it required and what would constitute “used.” The United States view of “used” has been well articulated by Kraska and Pedrozo: The decisive criterion for determining whether a strait is governed by the transit passage regime is not the history or volume of traffic traversing

18 19 20 21 22 23

Ibid., at p. 75. In the Matter of the South China Sea Arbitration between the Philippines and the People’s Republic of China, Award, 12 July 2016, available on the website of the Permanent Court of Arbitration at www.pca-​cpa.org. See, in particular, paras. 169–​276. los Convention, supra note 1, Article 37. Territorial Sea and Contiguous Zone Convention, 516 U.N.T.S. 205. The Corfu Channel Case (Albania/​United Kingdom), [1949] i.c.j. Reports 4. Ibid., at p. 28.

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the strait, but rather the strait is (or can be) used for international navigation to or from the high seas or the eez.24 Caminos and Cogliati-​Bantz reviewed the used criteria in detail. They comment that: There is general agreement among writers that straits that are not being used for international navigation at the time when the question of its status under international law is raised would not benefit from the regime in [the los Convention].25 They further note that: “The majority of States appear to accept that only ‘actual use’ of straits can result in a strait being deemed international.”26 These authors point out a number of issues with the “actual use” criteria, including that there is no discernible standard and whether an international strait can lose this status as a result of a decrease or lose of use.27 2.3 Straits between a Mainland and an Island The los Convention, Article 38(1) provides: [I]‌f the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. Where 38(1) is applicable Article 45 indicates that the right of innocent passage for vessels may not be suspended in that strait. Thus, pursuant to the los Convention either transit passage or non-​suspendable innocent passage exists for vessels traversing an international strait geographically formed by the mainland and an offshore island. Without going into the detail here, innocent passage (even non-​suspendable innocent passage) provides to a coastal State more control over passing vessels than transit passage.

24 25 26 27

Kraska and Pedrozo, supra note 3, at p. 222. Caminos and Cogliati-​Bantz, supra note 5, at p. 129. Ibid., at p. 130. Ibid., at p. 131.

314 M c Dorman The first uncertainty here is whether it is the strait State that makes the determination of whether there exists similarly convenient route seaward of the island or is it the flag State of a vessel that makes that determination.28 Rothwell and Stephens have written: In this instance the losc is essentially stating that if international navigation has a choice of route of similar convenience, then that which exists through the high seas or eez is to be preferred. If, on the other hand, international shipping prefers to pass between the mainland and the island then a right of passage applies in the place of transit passage. …29 This appears to support that it is the user that makes the determination. The United States in 1986 correspondence “protested the claim by the former Yugoslavia that it had the right to determine by its laws … which of the straits used for international navigation in its territorial sea will retain the regime of innocent passage of article 38, paragraph 1 and article 45 paragraph 1(a).”30 It was further noted that the right of Yugoslavia to designate which of the straits in its territorial sea constitute straits within the meaning of Article 38(1) “is not unqualified and that there must in fact exist, seaward of the island in question, a route through the high seas or the exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.”31 This appears to suggest some primacy is to be given to the position taken by the strait State, but a primacy that is not unlimited. A second uncertainty in Article 38(1) respects what constitutes “a route … of similar convenience,” in particular whether this includes commercial matters such as reduction of costs.32 On the latter point Tullio Scovassi has commented that the wording “is a typical instance of flexible wording which foster divergent interpretations.”33 28

Chi Young Pak, The Korean Straits, (Martinus Nijhoff, Dordrecht/​Boston/​London, 1988), at p. 100. 29 Rothwell, supra note 6, at p. 254. 30 See: J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, (Martinus Nijhoff, Leiden/​Boston, 3rd ed., 2012), at p. 276. 31 Ibid. The quoted material is directly from U.S. Diplomatic Note No. 062, 22 August 1986. The Yugoslavia response on 23 January 1987 is set out in footnote 32, at pp. 276–​277. 32 See: Lewis M. Alexander, Navigational Restrictions within the New LOS Context: Geographical Implications for the United States, first published with a limited distribution in 1986, edited reprinted (J. Ashley Roach, ed., Brill/​Nijhoff, Leiden/​Boston, 2017), at pp. 72–​73. 33 Tullio Scovassi, The Strait of Messina and the Present Regime of International Straits” in Caron and Oral, supra note 2, at p. 145.

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In 1986 Lewis Alexander listed over 20 situations where Article 38(1) straits may exist.34 Two of the straits noted below engage Article 38(1) questions. 3

“Other” Straits in the Asia-​Pacific Region

3.1 Korea/​Tsushima Strait The Korea/​Tsushima Strait is located between the southeastern coast of Korea and the northeastern coast of Honshu Island, Japan.35 Japan’s Tsushima Island separates the waterway into Western Channel and the Eastern Channel. The two Channels are each less than 24 M at their narrowest with a long-​history of vessel traffic with the legal consequence that the waterways could constitute straits used for international navigation.36 However, both Japan and Korea have opted not to extend their territorial seas in the area of the Channels to 12 M,37 thus leaving an area through both channels that is subject to high seas navigational rights. Japan has demonstrated a similar forbearance regarding the Tsugara Strait between the islands of Hokkaido and Honshu.38 3.2 Strait of Hainan/​Qiongzhou The Strait of Hainan is approximately 19 M wide and separates Hainan Island from the Chinese mainland.39 In 1958 China indicated that the Strait was “inland waters” being waters landward of straight baselines.40 In the 1964 “Rules for the Control of Non-​Military Vessels of Foreign Nationality Passing Through the Qiongzhou Strait,” the Strait was described as an “inland sea of China.”41

34 Alexander, supra note 32, at p. 111. 35 For a review of the history of the Korea/​Tsushima Strait, see: Pak, supra note 28, at pp.1–​ 13 and 73–​93. 36 United States, Department of State, Limits in the Seas:  Straight Baseline and Territorial Claims: Japan, No. 120, (April 1998), at pp. 13–​15. 37 See: Pak, supra note 28, at pp. 75–​78. 38 See: Limits in the Seas: Japan, supra note 36, at pp. 13–​15 and Kraska and Pedrozo, supra note 3, at pp. 226–​227. 39 Kraska and Pedrozo, supra note 3, at p. 261. 40 United States, Department of State, Limits in the Seas: Straight Baselines: People’s Republic of China, No. 43, (July 1978), at p. 5. 41 Laws of the People’s Republic of China, “Rules for the Control of Non-​Military Vessels of Foreign Nationality Passing Through the Qiongzhou Strait,” (8 June 1964), Article 1, available at .

316 M c Dorman Zou Keyuan has written that “China’s treatment of the Qiongzhou Strait indicates that, in practice, its claims to historic waters (or rights) are not limited only to bays or gulfs, but also to other waters such as straits.”42 It has been stated that “China has taken the position Qiongzhou Strait … is an Article 38(1) strait”43 with it observed that Alexander in 1986 specifically noted Hainan Strait in his list of Article 38(1) straits.44 The United States has referred to the Hainan Strait as being an “international strait.”45 3.3 Jeju Strait The island of Jeju is approximately 47 M from the Korean mainland.46 As a result of the application of straight baselines for both the mainland and Jeju the waterway is reduced to less than 24 M in width at its narrowest47 with all the waters being part of Korea’s territorial sea or internal waters. The principal question is whether the Jeju Strait is an Article 38(1) international strait such that suspendable innocent passage rather than transit passage applies. While Jeju is clearly an island feature offshore of the Korean mainland, Alexander raised the query as to how the mainland was to be interpreted “in cases where that coast is fringed by one or more islets.”48 It is perhaps for this reason that, while the Jeju Strait was noted as being an international strait,49 it was not listed as being an Article 38(1) international strait.50 Korean scholars and others have made the case that the Jeju Strait is an Article 38(1) international strait with there being a route of “similar convenience” seaward of the Jeju Strait.51 The writers acknowledge, as pointed out above,

42

Zou Keyuan, “Historic Rights in International Law and in China’s Practice” (2001), 32 Ocean Development and International Law 149, at p. 157. 43 Van Dyke, supra note 4, at p. 195. 44 Ibid., and see Alexander, supra note 32, at p. 111. 45 United States, Department of State, Limits in the Seas: Straight Baseline Claim: China, No. 117, (July 1996), at p. 8 and see Kraska and Pedrozo, supra note 3, at p. 261. 46 Boo-​Chan Kim and Seokwoo Lee, “Protection of the Sea Lanes in the Jeju Waters and Maritime Cooperation in Northeast Asia” in Caron and Oral, supra note 2, at p. 163. 47 Ibid. 48 Alexander, supra note 32, at p. 72. 49 Ibid., at p. 94. 50 Ibid., at p. 111. 51 Kim and Lee, supra note 46, at pp. 162–​165; Pak, supra note 28, at pp. 99–​101; and Van Dyke, supra note 4, at p. 196.

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that there is uncertainty as to who determines whether an alternative waterway is of “similar convenience” and what is to be considered in making this determination.52 Writers have noted that Japan has indicated that the alternative route is not of “similar convenience.”53 52 53

Kim and Lee, supra note 46, at p. 163 and Pak, supra note 28, at pp. 200-​101. Ibid., at p. 163, fn 40 and Van Dyke, supra note 4, at p. 196.

­c hapter 14

Passage through Indonesian Waters on Routes Used for International Navigation Robert Beckman and Dita Liliansa* Abstract Indonesia is the world’s largest and most important archipelagic State. Because it sits as the fulcrum between the Pacific Ocean and the Indian Ocean, passage through and over the Indonesian archipelago is critically important to naval powers and maritime commerce. Indonesia played a significant role in negotiating the modern law of the sea, especially the regimes governing archipelagic States and straits used for international navigation. As a major beneficiary of the new law of the sea, Indonesia recognises that it is in its national interest to promote the rules-​ based legal order established in the 1982 United Nations Convention on the Law of the Sea (unclos). Consequently, Indonesia continues to work with other States and with the International Maritime Organization (imo) to develop the legal regimes established in unclos. It has taken the lead in working with the imo on the designation of archipelagic sea lanes through its archipelagic waters, and it is now working with the imo to adopt measures to protect the marine environment and enhance the safety of navigation in the routes used for international navigation through its archipelago.

Keywords Indonesia  –​archipelagic waters  –​archipelagic sea lanes  –​archipelagic sea lanes passage –​Djuanda declaration –​international navigation –​Straits of Malacca and

* Robert Beckman is an Associate Professor in the Faculty of Law at the National University of Singapore (nus) and the Head of the Ocean Law & Policy Program at the nus Centre for International Law. Dita Liliansa is a Research Associate at the nus Centre for International Law nus.. PowerPoint available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​beijing-​beckman.pdf.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_018

Indonesian Waters on Routes Used for International Navigation 319 Singapore –​Particularly Sensitive Sea Area –​United Nations Convention on the Law of the Sea

1

Introduction

This article examines the legal regime governing passage on routes used for international navigation through Indonesian waters (Figure 14.1). First, it explains the importance of Indonesia’s geographic location to maritime transport between the Indian Ocean and the Pacific Ocean. It then explains the significance of Indonesia’s 1957 declaration claiming sovereignty over the waters between the islands in its archipelago and a 12 M territorial sea measured from baselines connecting its islands. Although Indonesia’s proposals were opposed by the maritime powers and rejected at the First UN Conference on the Law of the Sea in 1958, they were subsequently accepted in the Third UN Conference and are now enshrined in the 1982 United Nations Convention on the Law of the Sea (unclos).1 Indonesia benefits significantly from the maritime zones in unclos, even though it had to accept restrictions on its sovereignty to ensure that all States enjoyed unimpeded passage through and over the Indonesian archipelago. The article also explains how the two new passage regimes in unclos–​transit passage and archipelagic sea lanes passage–​differ from the regime of innocent passage. The article then focuses on how Indonesia has cooperated with its neighbouring States and with the International Maritime Organization (imo) to enhance the safety of navigation and prevent, reduce and control ship-​ source pollution in the major routes for international navigation that pass through waters under the sovereignty of Indonesia. First, it explains how the three States bordering the Straits of Malacca and Singapore (SOMS)—​ Indonesia, Malaysia, and Singapore—​have cooperated with the imo and user States to enhance the safety of navigation and minimise ship-​source pollution in SOMS. Second, it examines how Indonesia is furthering its national interests by cooperating with the imo to enhance its security as well as safety and environmental protection in routes used for international

1 Adopted in Montego Bay, Jamaica, on 10 December 1982 and entered into force on 16 November 1994. As of 3 April 2018, 168 States are parties to the Convention. The text of the Convention is available online at (thereafter unclos).

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­f igure 14.1 Southeast Asia transit region SOURCE: l.m. alexander, navigational restrictions within the new los context: geographical implications for the united nations ( j. ashley roach, ed., leiden/​b oston: brill nijhoff, 2017), map 17 at p. 158.

navigation through its waters. The article describes how Indonesia proposed that the imo designate archipelagic sea lanes through its archipelagic waters as provided in unclos. It opines that in addition to the partial designation of three north-​south archipelagic sea lanes, it would be in the national interest of Indonesia to propose an east-​west archipelagic sea lane for designation by the imo. The article then summarises the steps that Indonesia is currently undertaking at the imo for the adoption of various routeing measures that will enhance the safety of navigation and protect the marine environment from ship-​source pollution in the Lombok and Sunda Straits. Both of these straits are choke points within two of the archipelagic sea lanes that have been designated by Indonesia and adopted by the imo.

Indonesian Waters on Routes Used for International Navigation 321

2

Indonesia’s 1957 Claim to Archipelagic Waters and a 12 M Territorial Sea

As the world’s largest and most important archipelagic State with more than 16,056 islands,2 Indonesia is positioned as the fulcrum between the Indian Ocean and the Pacific Ocean. The primary routes used for international navigation from East Asia to South Asia, the Middle East or Europe pass through three choke points in waters under Indonesia’s sovereignty—​the Lombok Strait, the Sunda Strait or the SOMS. This was not always the case. When Indonesia was a Dutch colony, it claimed only a 3 M territorial sea from the individual islands in the Indonesian archipelago.3 Waters beyond the 3 M limit were considered high seas. This ensured that the naval and maritime powers could pass through Indonesia while exercising freedom of navigation on the high seas. They could also fly over the Indonesia archipelago exercising the high seas freedom of overflight. After World War ii, many States began to question and challenge the existing legal order governing the oceans. The United States President, Harry Truman, made proclamations in 1945 claiming that the United States had rights to the fisheries resources in the waters off its coast as well as rights to the natural resources on the continental shelf adjacent to its coast.4 Indonesia and many other former colonies achieved their independence after World War ii, and some States began to claim a territorial sea of 12 M as well as a fishing zone in which they asserted preferential rights. As a result, the legal regime governing the oceans was in a state of uncertainty. Consequently, the UN General Assembly adopted a resolution on 21 February 1957 convening a UN Conference

2 In 2012, Indonesia submitted 13,466 names of its islands during the 10th United Nations Conference on the Standardization of Geographical Names. Then, in 2017, it further reported about 2,590 more islands. However, the Indonesian government has claimed that the total number of Indonesia’s islands is 17,504 islands, pending official names to be submitted to the United Nations (See E/​C onf.101/​1 19 on the National Report of the Republic of Indonesia, submitted by Indonesia, 30 May 2012; E/​C onf.105/​8 6/​C rp.86 on the Report of the Government of the Republic of Indonesia, submitted by Indonesia, 23 June 2017; E/​C onf.105/​1 15/​ Crp.115 on the Identification of Islands and Standardization of Their Names, submitted by Indonesia, 30 June 2017). 3 Staatsblad no. 442 of 1939 on territoriale zee en marieteme kringen ordonnantie 1939, Art. 1(1). It was officially revoked by the Government Regulation in Lieu of Law No. 4/​Prp of 1960 on Indonesian Waters, available online at . 4 Adopted in Washington, United States, on 28 September 1945.

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on the Law of the Sea in Geneva from 24 February to 27 April of 1958.5 This conference is now referred to as the First UN Conference on the Law of the Sea. On 13 December 1957, less than three months before the UN Conference was to convene, Indonesia adopted the Djuanda Declaration.6 The declaration reflected the fact that Indonesia believed that its islands and interconnecting waters are so closely interrelated that they are inseparable. The declaration asserted that Indonesia was an archipelagic State comprised of thousands of islands and that all waters surrounding, between and connecting the islands are integral parts of Indonesia’s land territory and therefore parts of national waters which are under the absolute sovereignty of Indonesia.7 Also, the declaration claimed a territorial sea of 12 M to be measured from baselines connecting the outermost points of the islands of Indonesia.8 The Government regulation adopting the declaration referred to the waters inside the baselines as internal or national waters.9 However, the declaration guaranteed the peaceful passage of foreign ships through the waters as long as, and insofar as, it does not violate or interfere with the sovereignty and security of Indonesia.10 The declaration was swiftly opposed by the major naval powers and maritime States because it was a threat to their maritime and naval interests. The maritime States and naval powers declared that they recognised a territorial sea of only three M measured from the individual islands, not from baselines connecting the islands. Within a month, six Western States—​the United States, United Kingdom, Australia, the Netherlands, France, and New Zealand—​lodged formal protests.11 Their positions were designed to ensure that they would continue to have freedom of navigation and freedom of overflight through and over the Indonesian archipelago.

5 6

7 8 9 10 11

unga Res. 1105(xi), ‘International Conference of Plenipotentiaries to Examine the Law of the Sea,’ adopted in the 658th Plenary Meeting, on 21 February 1957. The Djuanda Declaration was named after the former Indonesia’s Prime Minister, Djuanda Kartawidjaja, who issued a ‘Government Announcement on Indonesian Water Territory.’ This declaration was later adopted in the Government Regulation in Lieu of Law No. 4/​Prp of 1960 on Indonesian Waters (see supra note 3). Id. Id. Government Regulation in lieu of Law No. 4/​P rp of 1960 on Indonesian Waters, Art. 1(3). Djuanda Declaration, supra note 6. J.G. Butcher and R.E. Elson, Sovereignty and the Sea: How Indonesia Became an Archipelagic State (Singapore, nus Press, 2017), pp. 78.

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Despite the protests, Indonesia proposed its new archipelagic States concept at the First UN Conference on the Law of the Sea. The Western powers and Japan opposed the archipelagic States concept as well as the 12 M territorial sea.12 Both were perceived as threats because they would bring strategic choke points of less than 24 M in width under the sovereignty of coastal States, subject to the right of innocent passage for ships. This would include strategic shipping lanes such as the SOMS, as well as the two other major choke points in Indonesia, the Sunda Strait and the Lombok Strait. If the three M territorial limit were maintained, foreign ships would enjoy the freedom of navigation, and foreign aircraft would enjoy the freedom of overflight. Even though the proposal to recognise the right of archipelagic States to draw straight baselines enclosing their islands was not accepted at the first UN Conference on the Law of the Sea the agreed text contains no provision making such baselines contrary to international law.13 The issue that was most contentious at the First UN Conference on the Law of the Sea was the proposal to permit States to establish the breadth of their territorial sea at 12 M. The Western powers opposed the idea because many narrow choke points on routes used for international navigation would then lie within the territorial sea of coastal States, and passage by foreign ships would be subject to the rules on innocent passage. This issue proved so contentious that no compromise could be reached on the issue. The Conference agreed on all the rules governing the territorial sea, but they could not agree on the breadth of the territorial sea.14 A second UN Conference on the Law of the Sea was convened in 1960 to try to resolve the issue of the breadth of the territorial sea, but again, no consensus could be reached, and it failed.15 3

Third UN Conference on the Law of the Sea

The impetus for the Third UN Conference on the Law of the Sea was a 1967  speech at the UN General Assembly by Ambassador Arvid Pardo of 12 13 14 15

Id., pp. 83. Id., pp.  94. For further perusal, see United Nations Conference on the Law of the Sea, ‘Summary Records of the 19th Plenary Meeting,’ on 27 April 1958. UN Doc. A/​C onf.13/​L .52, ‘Convention on the Territorial Sea and Contiguous Zone,’ adopted in the 20th Plenary Meeting of the UN Conference on the Law of the Sea, on 27 April 1958. UN Doc. A/​C onf.19/​L .15, ‘Final Act of the Second United Nations Conference on the Law of the Sea,’ adopted in 13th Plenary Meeting of the Second UN Conference on the Law of the Sea, on 26 April 1960.

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Malta.16 Following his speech, many developing countries supported the proposition that the mineral resources of the seabed beyond the limits of national jurisdiction be declared the “common heritage of mankind,” and that a new legal regime be established by the UN to govern the exploitation of such resources for the benefit of all mankind, especially the less developed countries. As a result, the UN General Assembly established a Seabed Committee in 1967.17 The UN later decided to convene the Third UN Conference on the Law of the Sea to resolve all outstanding issues relating to the law of the sea and draft a convention governing all uses of the oceans that would be universally accepted.18 The first session of the Third Conference was convened in 1973, and negotiations continued until the adoption of UNCLOS in December 1982.19 One of the major issues to be negotiated at the Third Conference was the legal regime governing the passage of ships and aircraft through and over waters under the sovereignty of coastal States. The major results of the negotiations were as follows. First, concerning passage through the territorial sea, an agreement was reached that coastal States could claim a territorial sea of 12 M from their coasts. Second, the rules on innocent passage were clarified by including a list of activities that would make the passage of a foreign ship “not innocent.”20 Third, a new regime on Straits used for International Navigation was agreed upon.21 Fourth, a new regime on the Archipelagic States was agreed upon.22 It allowed archipelagic States to enclose their archipelago by drawing straight baselines connecting the outermost points of their outermost islands and drying reefs.23 The waters inside the baselines are called “archipelagic waters,” and they are subject to the sovereignty of the archipelagic State, provided that such sovereignty must be exercised subject to the provisions in unclos.24 16 17

18 19 20 21 22 23 24

unga, Official Records, 22nd Session, First Committee, 1515th and 1516th meetings, 1 November 1967 (A/​C.1/​PV.1515). On 18 December 1967, the UN General Assembly established an Ad Hoc Committee to study the peaceful uses of the seabed and the ocean floor beyond the limits of national jurisdiction by unga Res. 2340(xxii). Not long after, it established a Committee, by unga Res. 2467(xxiii) A, to carry out the same purpose. unga Res. 2750(xxv) C, adopted in 1933rd Plenary Meeting, on 17 December 1970. UN, “The United Nations Convention on the Law of the Sea (A Historical Perspective),” available at . unclos, Art. 19. Id., Art. 38. Id., Part iv. Id., Art. 47. Id., Art. 49.

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To balance the sovereignty interests of the coastal States and archipelagic States, and the interests of the naval and maritime powers in passage through straits used for navigation through and over archipelagic States, two new passage regimes were agreed upon: transit passage through straits used for international navigation,25 and archipelagic sea lanes passage through archipelagic States.26 These provisions were negotiated to ensure that the naval powers had a right of unimpeded passage through the SOMS and the Indonesian archipelago. Indonesia played a significant role in negotiating the compromise that is now reflected in Parts iii and iv of unclos. Indonesia benefitted greatly from the archipelagic States regime. The regime gave Indonesia sovereignty over all of the waters inside the archipelagic baselines, which are referred to as archipelagic waters.27 Consequently, Indonesia has sovereignty over all of the natural resources in and under the waters inside the territorial sea measured from its archipelagic baselines. Since these areas are under its sovereignty, Indonesia has jurisdiction to regulate smuggling and other illegal activities in these waters. Also, Indonesia measures its 200 M Exclusive Economic Zone (EEZ) and continental shelf from its archipelagic baselines.28 Indonesia gained much from the legal regimes set out in unclos. According to the first official reference to Indonesia’s territory, which was released in August 2018, unclos has given Indonesia a total of 3,110,000 km2 of internal waters and archipelagic waters and 290,000 km2 of the territorial sea which means that the waters subject to its sovereignty total 3,400,000 km2. Also, Indonesia claims 3,000,000 km2 of eez,29 plus an extended continental shelf. In summary, unclos has permitted Indonesia to claim sovereignty over all of the ocean space between its islands and also to claim resource zones that give it sovereign rights to explore and exploit the natural resources in large areas that were previously governed by the principle of freedom of seas. However, the benefits to Indonesia under the new provisions in unclos were not without costs. The major powers insisted on provisions in the new regimes on straits used for international navigation that ensured that they

25 26 27 28 29

Id., Art. 38. Id., Art. 53. Id., Art. 49. Id., Art. 48. Coordinating Ministry for Maritime Affairs, “Menko Maritim Luncurkan Data Rujukan Wilayah Kelautan Indonesia,” available at .

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have a right to move their navies from the Pacific Ocean to the Indian Ocean through and over the Indonesian archipelago. Therefore, article 34(2) in Part iii on Straits used for International Navigation provides that the sovereignty or jurisdiction of the States bordering the straits “is exercised subject to this Part and other rules of international law”.30 Similarly, article 49(3) in Part iv on the Archipelagic States provides that the sovereignty of the archipelagic State “is exercised subject to this Part”.31 The provisions setting out the passage rights of user States in straits used for international navigation and archipelagic States are almost identical. What is most important is that the passage rights of user States through straits and archipelagoes is greater than the right of innocent passage through the territorial sea. First, the passage regimes through straits and archipelagoes apply to the overflight of aircraft as well as the passage of ships, whereas only ships have a right of innocent passage through the territorial sea.32 Second, the passage regimes through straits and archipelagoes provide that ships may transit in their “normal mode”, which allows submarines to transit submerged, whereas submarines exercising innocent passage through the territorial sea must surface and fly their flag.33 Third, the passage regimes through straits and archipelagoes can never be suspended, whereas innocent passage through the territorial sea can be suspended by the coastal State.34 Fourth, the right of coastal or archipelagic States to regulate ships exercising the passage regimes through straits or archipelagoes is minimal, where the coastal State has a right to regulate ships exercising innocent passage through its territorial sea.35 4

Legal Regime Governing Passage of Ships in the SOMS

The soms is a strait used for international navigation governed by Part iii of unclos in which all ships and aircraft have a right of transit passage. This is because the soms are used for international navigation between one part of the high seas or EEZ (the Indian Ocean) and another part of the high seas or EEZ (the South China Sea).36 The three States that border the soms—​Indonesia,

30 31 32 33 34 35 36

unclos, Art. 34(2). Id., Art. 49. Id., Arts. 38, 53, and 17. Id., Arts. 39(c), 54, and 20. Id., Arts. 44, 54, and 25. Id., Arts. 42, 54, and 21. Id., Art. 37.

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Malaysia, and Singapore—​have been cooperating to manage shipping in the straits since the 1970s. In 1977 the three littoral States established the Tripartite Technical Expert Group on Safety of Navigation in the Straits of Malacca and Singapore (tteg).37 Under the tteg the three States have worked with the imo to adopt routeing measures, a vessel traffic system and a ship reporting system for ships transiting the soms.38 In 2007 the three States worked with the imo, user States, and other stakeholders to establish a Cooperative Mechanism for the soms.39 The Cooperative Mechanism for the soms is the first mechanism that was established to implement article 43 of unclos, which provides that user States and States bordering a strait should by agreement cooperate to enhance the safety of navigation and the prevention, reduction, and control of pollution from ships.40 5

Designation of Archipelagic Sea Lanes under unclos

Under Part iv of unclos, all ships and aircraft enjoy the right of archipelagic sea lanes passage.41 An archipelagic State may designate sea lanes and air routes through and over its archipelago.42 Such sea lanes and air routes must include all normal passage routes used as routes for international navigation or overflight through or over the archipelago, and within such routes, all normal navigational channels.43

37 38 39 40

41 42 43

Cooperative Mechanism on Safety of Navigation and Environment Protection in the Straits of Malacca and Singapore, Tripartite Technical Experts Group, available at . imco Res.a.375(x), ‘Navigation through the Straits of Malacca and Singapore’, adopted on 14 November 1977. imo/​k ul 1/​2 .6/​1 , ‘The Co-​Operative Mechanism Between the Littoral States and User States on Safety of Navigation and Environmental Protection in the Straits of Malacca and Singapore,’ Submitted by Indonesia, Malaysia and Singapore, 16 August 2007. R.C. Beckman, ‘The Establishment of a Cooperative Mechanism for the Straits of Malacca and Singapore under Article 43 of UNCLOS’, in: A. Chircop, T. L. McDorman & S.J. Rolston (eds.), The Future of Ocean Regime-​Building:  Essays in Tribute to Douglas M.  Johnston (Leiden: Brill Publishers, 2009), pp. 233–​260; R.C. Beckman & S. Zhen, ‘The Cooperative Mechanism for the Straits of Malacca and Singapore’, in Beckman, Henriksen, Kraabel, Molenaar & Roach (eds.), Governance of Arctic Shipping (Leiden: Brill Publishers, 2017), pp. 381–​412. unclos, Art. 53(2). Id., Art. 53(1). Id., Art. 53(4).

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An archipelagic State which designates sea lanes may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes.44 The archipelagic State shall refer proposals for the designation of sea lanes and traffic separation schemes to the imo with a view to their adoption. After they have been adopted by the imo, they may be designated by the archipelagic State.45 If an archipelagic State designates sea lanes and air routes as described above, ships and aircraft may only exercise the right of archipelagic sea lanes passage on or over such sea lanes and air routes. If an archipelagic State does not designate sea lanes or air routes as described above, the right of archipelagic sea lanes passage may be exercised by all ships and aircraft through the routes normally used for international navigation.46 As in the case of transit passage through straits used for international navigation, ships and aircraft exercising archipelagic sea lanes passage must refrain from any activities other than that incident to their normal modes of continuous and expeditious transit.47 This means that submarines may transit while submerged and warships escorting an aircraft carrier may transit in formation. The transit of submerged submarines is a potential threat to the security of the archipelagic State. Consequently, it would seem to be in the interests of the archipelagic State to designate sea lanes so that submerged submarines can only transit the archipelagic waters via the designated sea lanes. It would then be more likely that the archipelagic State would be able to identify or track the foreign submarines transiting its archipelagic waters. 6

Partial Designation of Archipelagic Sea Lanes through Indonesia

Indonesia was the first archipelagic State to designate archipelagic sea lanes. In 1996, at the 24th Session of the Maritime Safety Committee (msc) of the imo, the Indonesian delegation advised the msc that it intended to designate sea lanes for the exercise of archipelagic sea lanes passage by foreign ships and aircraft through and over its archipelago in accordance with the procedures set out in article 53 of unclos.48 44 45 46 47 48

Id., Art. 53(6). Id., Art. 53(9). Id., Art. 53(12). Emphasis added by authors. Id., Arts. 39 and 54. Emphasis added by authors. msc 66/​24, ‘Report of the Maritime Safety Committee on its Sixty-​Sixth Session,’ 18 June 1996.

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At its 69th Session in May 1998, the msc of the imo, by Resolution msc.71 (69), established General Provisions for the adoption, designation, and substitution of archipelagic sea lanes. At the same session, the msc, by Resolution msc.72 (69), adopted a partial system of archipelagic sea lanes in Indonesian archipelagic waters. The system of archipelagic sea lanes in Indonesian archipelagic waters was a “partial” designation because it only included three north-​south sea lanes. In consultations with Indonesia and in discussions at the imo, several States, including the United States and Australia, insisted that Indonesia include an east-​west archipelagic sea lane. Indonesia did not agree and proposed only three north-​south sea lanes for adoption by the msc. As a result, Indonesia confirmed at the meeting of the msc that its proposal is a “partial designation.” Indonesia also confirmed that: the right of archipelagic sea lanes passage may be exercised […] in all other normal passage routes used for international navigation or overflight and all normal navigational channels lying within such routes, including an east-​west route and other associated spurs and connectors, through and over Indonesia’s territorial sea and its archipelagic waters.49 At the same meeting of the msc, Indonesia also agreed that the right of innocent passage may be exercised through Indonesia’s territorial sea and archipelagic waters.50 The msc instructed the imo Secretariat to publish the adopted partial system in the imo publication on Ships’ Routeing.51 On 28 June 2002, Indonesia promulgated the Government Regulation No. 37 of 2002 concerning the “Rights and Obligations of Foreign Ships and Aircraft in Conducting the Rights of Archipelagic Sea Lanes Passage.”52 At the 76th session of the msc in 2002, Indonesia advised that its imo-​adopted partial system of archipelagic sea lanes would be implemented effective on 28 December 2002. In response to the above actions of Indonesia at the imo, the United States made a formal submission to the msc in March 2003 expressing certain

49 50 51 52

msc 69/​22, ‘Report of the Maritime Safety Committee on its Sixty-​Ninth Session,’ 29 May 1998, para. 5.23. Id., para. 5.24. Id., para. 5.28. UN Division for Ocean Affairs and Law of the Sea, Law of the Sea Bulletin No. 52 (2003) pp. 20–​40, available at .

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concerns and reservations about the actions of Indonesia. In particular, the United States noted that Indonesia’s designation was a partial designation that did not address passage through all traditional routes. Consequently, the United States stated that: … [it] must reserve its right and those of its nationals to exercise the right of archipelagic sea lanes passage through all routes of the Indonesian archipelago normally used for international navigation in accordance with international law as reflected in article 53(12) of the Law of the Sea Convention.53 Many years have passed since the imo adopted the three north-​south sea lanes as a partial system of archipelagic sea lanes. While it can be assumed that the United States Navy exercises the right of archipelagic sea lanes passage through Indonesian archipelagic waters on the east-​west route and on other routes normally used for international navigation, the practice of other navies is not publicly available. Consequently, although Indonesia took the lead in being the first archipelagic State to designate archipelagic sea lanes, questions remain as to why it has not designated an east-​west lane, and whether foreign ships and aircraft, especially warships and warplanes, in practice transit the Indonesian archipelago by following the practice of the United States in exercising the right on all routes normally used for international navigation, including the east-​west route. Even the practice of the United States is not entirely clear. However, a 2014 study by the U.S. State Department stated that the Indonesian Government has, on occasion, attempted to restrict the right of archipelagic sea lanes passage by U.S. military aircraft.54 7

Indonesia’s Proposals for Routeing Measures in Lombok & Sunda Straits

As the competent international organisation for the regulation of international navigation, the imo has published extensive guidelines on how to establish various measures to ensure the safety of navigation and protect the marine 53 54

msc 77/​25/​7, ‘Designation of Archipelagic Sea Lanes through Indonesian Archipelagic Waters,’ submitted by the United States, 25 March 2003. U.S. Department of State, ‘Limits in the Seas, No. 141, Indonesia: Archipelagic and other Maritime Claims and Boundaries,’ 15 September 2014, pp. 5.

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environment from shipping activities, including the guidelines on the designation of a Particularly Sensitive Sea Area (pssa). The imo defines a pssa as “an area that needs special protection through action by imo because of its significance for recognised ecological, socio-​economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities.”55 It also describes a pssa as “a comprehensive management tool at the international level that provides a mechanism for reviewing an area that is vulnerable to damage by international shipping and determining the most appropriate way to address that vulnerability.”56 To be granted a pssa status, a proposed area must have at least one of the ecological, socio-​economic, or scientific criteria listed in the imo’s Revised Guidelines.57 Even if it meets one specified criterion, the imo framework will only cater to the need of protection against damage by international shipping activities. If the threat mainly comes from domestic shipping, the IMO will consider the matter to be a state’s internal issue. To determine whether an area can be designated a pssa, the IMO will take into account vessel traffic characteristics, natural factors, and other information, such as the history of incidents and evidence of damage or anticipated damage.58 A pssa proposal must be submitted to the Marine Environment Protection Committee (mepc) of the imo for assessment.59 A proposing state must also identify at least one Associated Protective Measure (apm) within the imo’s competence to prevent, reduce or eliminate risks from the shipping activities.60 It can either pinpoint an existing apm that has an identifiable legal basis or propose a new one.61 Some samples of apm s that a proposing state may use are ships’ routeing measures, ship reporting system, discharge restrictions, operational criteria, and prohibited activities.62 An area officially becomes a pssa when the mepc has designated it as such upon obtaining approval from the appropriate Sub-​Committee, Committee, or Assembly.63 apm s may also 55 56 57 58 59 60 61 62 63

Mepc Res.A.982 (24) as amended, ‘Revised Guidelines for the Identification and Designation of PSSAs’, adopted 1 December 2005, para. 1.2. Mepc.1/​C irc.510, ‘Guidance Document for Submission of PSSA Proposals to IMO’, adopted 10 May 2006, para. 1.2. Id. Mepc Res.A.982 (24) as amended, supra note 55, Section 5. Id., para. 3.2. Mepc Res.A.982 (24) as amended, supra note 55, para. 7.5.2; Mepc.1/​C irc.510, supra note 56, para. 3.5.1. Id. Mepc.1/​C irc.510, supra note 56, para. 3.5.1. Mepc Res.A.982 (24) as amended, supra note 55, paras. 8.3.4 & 8.3.7.

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require approval from the msc if they are also related to the safety of international navigation.64 In April 2017, Indonesia began to take steps at the imo to enhance the safety of navigation and to protect the marine environment from ship-​source pollution in the Lombok Strait. It submitted an information paper to the mepc highlighting the need to protect the Gili islands and the Nusa Penida Islands which are near Indonesia’s Archipelagic Sea Lane ii in the Lombok Strait.65 Indonesia was concerned about the increasing vessel traffic near the islands which could jeopardise its national conservation efforts. Both islands had been designated as Marine Conservation Areas in 2014 by Indonesia’s Minister of Marine Affairs and Fisheries.66 Accordingly, Indonesia advised the mepc that it intended to submit a proposal for designating the two group of islands as pssa s within a year.67 In August 2018, Indonesia put forward a follow-​up paper to the mepc advising it of the progress it made for the designation of pssa s in the Lombok Strait.68 However, instead of submitting pssa proposals for both the Gili and Nusa Penida Islands as indicated in the previous information paper, it merely focused on the Nusa Penida Islands.69 The Nusa Penida Islands are located within the Coral Triangle, an area known for its rich marine biodiversity. Therefore, by its proposal for the establishment of a pssa, Indonesia has signified the importance of these islands as a critical habitat to various marine species, including extremely rare and threatened species.70 The total area of the proposed pssa around the Nusa Penida Islands is 20,057 hectares.71 To protect the environment around the islands, Indonesia proposed the establishment of an

64 65 66

67 68 69 70 71

Id., para. 8.3.5. Mepc Doc.71/​ Inf.39, ‘Identification and Protection of Special Areas and pssa s: Protection of the Lombok Strait including Gili Islands and Nusa Penida Islands’, submitted by Indonesia, 28 April 2017. See Minister of Marine Affairs and Fisheries Decree Number 57/​Kepmen-​KP/​2014 on Management and Zoning Plan of Marine Tourism Park of Gili Ayer, Gili Meno and Gili Trawangan Islands in the Province of West Nusa Tenggara Year 2014–​2034, 6 October 2014; Minister of Marine Affairs and Fisheries Decree Number 24/​Kepmen-​KP/​2014 on Marine Protected Area of Nusa Penida, Klungkung Regency in the Province of Bali, 21 March 2014. Mepc Doc.71/​ Inf.39, supra note 65, paras. 14–​15. Mepc Doc.73/​ Inf.18, ‘Identification and Protection of Special Areas, eca s and pssa s: Recent Progress on the Development of a pssa Proposal for the Protection of Nusa Penida Islands in the Lombok Strait’, submitted by Indonesia, 17 August 2018. Id., para. 1. Id., paras. 3–​6. Id., para. 13.

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Area to be Avoided as the proposed apm for the area.72 Indonesia claims that the proposed measure will not affect the right of archipelagic sea lanes passage in the Lombok Strait.73 In its August 2018 paper, Indonesia asked the mepc to take note of the information and advised it that a more detailed submission would be submitted to the mepc in 2019.74 It is not clear whether Indonesia intends at a later date to submit a follow-​ up paper to the mepc proposing the establishment of a pssa around the Gili Islands. It should be noted, however, that in addition to the papers it has submitted to the mepc with respect to the proposals for a pssa, Indonesia also advised the Sub-​Committee on Navigation, Communications and Search and Rescue (ncsr) in December 2017 of the apm s it is proposing to prevent ship-​ source pollution around both the Nusa Penida Islands and Gili Islands.75 This indicates that Indonesia recognises that it is proposing the establishment of apm s that relate to the safety of international navigation as well as protection of the marine environment and that as a consequence, the apm s will require the approval of not only of the mepc but also of the ncsr and its parent committee, the msc. The apm s that are being proposed to the ncsr in the Lombok Strait are several types of mandatory routeing measures: a traffic separation scheme, two precautionary areas, and two inshore traffic zones.76 To add another safety layer and control the ship traffic, it further proposes a mandatory ship reporting system for certain types of ships.77 Furthermore, Indonesia also proposes two Areas to be Avoided adjacent to the proposed routeing system in the Lombok Strait. This notification to the ncsr is consistent with the information that Indonesia submitted to the mepc in its proposal for a pssa in the area around the Nusa Penida Islands.78 72 73 74 75 76 77 78

Id., para. 14. Id., paras. 13–​14. Id., paras. 19 & 21. Ncsr Doc.5/​ Inf.23, ‘Routeing Measures and Mandatory Ship Reporting Systems: Information on Routeing Measures and Mandatory Ship Reporting Systems in Lombok Strait, Indonesia’, submitted by Indonesia, 15 December 2017. Annex 1 of the Ncsr Doc.5/​I nf.23, ‘Draft Establishment of a New Traffic Separation Scheme, Precautionary Areas and Inshore Traffic Zone in Lombok Strait, Indonesia’, submitted by Indonesia, 15 December 2017, para. 3. Annex 3 of the Ncsr Doc.5/​I nf.23, ‘Draft Establishment of Mandatory Ship Reporting System in Sunda Strait, Indonesia’, submitted by Indonesia, 15 December 2017, paras. 3 & 5. See Annex 2 of the Ncsr Doc.5/​I nf.23, ‘Draft Establishment of Areas to be Avoided in Adjacent of the Proposed Routeing System in Lombok Strait, Indonesia’, 15 December 2017; Mepc Doc.73/​ Inf.18, ‘Identification and Protection of Special Areas, eca s and

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The second information paper submitted by Indonesia to the ncsr in 2017 is with regard to the regulation of shipping in the Sunda Strait.79 The apm s that are being proposed for the Sunda Strait are a mandatory ship reporting system and routeing measures consisting of a new traffic separation scheme, a precautionary area, and an inshore traffic zone.80 A mandatory ship reporting system is being proposed because the Sunda Strait is one of the most important and busiest straits in Indonesia.81 The proposed measures pay particular attention to the shallow water and presence of coral reefs around Sangiang Island as well as to Koliot Reef and Gosal Reef, which have seen a number of incidents of ships’ grounding.82 Moreover, the waters surrounding Krakatau Island, Krakatau Kecil Island, and Sertung Island are also considered dangerous to navigation because of the existence of active volcanoes.83 Another unique challenge in the Sunda Strait is the high-​density traffic flows from two major shipping routes. The first route is a domestic east-​west route between two of Indonesia’s largest and most important islands—​Java and Sumatra. The second route is a major route used for international navigation through Indonesia’s Archipelagic Sea Lane 1 between the Indian Ocean and the Java Sea.84 It should be noted that Indonesia is making proposals for apm s to further regulate international shipping in both the Lombok and Sunda Straits, but it is only proposing the designation of a pssa in the Lombok Strait. The information papers submitted to the imo do not explain the reason for this, but it

79 80 81 82 83

84

pssa s: Recent Progress on the Development of a pssa Proposal for the Protection of Nusa Penida Islands in the Lombok Strait’, submitted by Indonesia, 17 August 2018, para. 14. Ncsr Doc.5/​ Inf.24, ‘Routeing Measures and Mandatory Ship Reporting Systems: Information on Routeing Measures and Mandatory Ship Reporting Systems in Sunda Strait, Indonesia’, submitted by Indonesia, 15 December 2017. Annex 1 of the Ncsr Doc.5/​I nf.24, Draft Establishment of a New Traffic Separation Scheme, Precautionary Area and Inshore Traffic Zone in Sunda Strait, Indonesia, submitted by Indonesia, 15 December 2017, para. 3. Annex 2 of the Ncsr Doc.5/​I nf.24, Draft Establishment of a New Traffic Separation Scheme, Precautionary Area and Inshore Traffic Zone in Sunda Strait, Indonesia, submitted by Indonesia, 15 December 2017, para. 3. Annex 1 of the Ncsr Doc.5/​I nf.24, supra note 80, paras. 5 & 15. Id., para. 18. On 22 December 2018, a tsunami caused by an underwater landslide due to volcanic eruption of Anak Krakatau (literally translated as the Child of Krakatoa) hit several coastal towns around the Sunda Strait. As of 27 December 2018, at least 430 people were killed, 159 people are still missing, 1,500 people were injured, and more than 21,000 have taken a refuge to higher grounds (See “Indonesia Tsunami: People Urged to Avoid Coast Near Erupting Volcano as Death Toll Rises to 430,” The Independent, available at ). Annex 2 of the Ncsr Doc.5/​I nf.24, supra note 81, para. 5.

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may be because there are no marine conservation areas or sensitive marine habitats in the Sunda Strait. Another reason might be that the number of ships transiting and crossing the Sunda Strait is significantly higher than the Lombok Strait.85 Therefore, Indonesia may have determined that it would be more difficult to gain approval from the imo for the designation of a pssa in the Sunda Strait. In summary, Indonesia seems to have carefully followed the procedures and practices of the imo in seeking approval from the relevant imo committees and subcommittees for its proposals. Indonesia also indicated in its proposals that it had consulted relevant parties from both the public and private sectors, including government agencies, shipping companies, ship owners, port managers, and ship operator associations.86 It also indicated that it has had “extensive consultations” with Australia for the proposed routeing measures in the Lombok Strait.87 This leads one to conclude that Indonesia is carefully following unclos as well as the practices and procedures of the imo in implementing unclos. 8

Conclusion

Indonesia played an important role in the negotiation of the provisions in unclos on straits used for international navigation and archipelagic States. Its strategic location as the fulcrum between the Indian and Pacific Oceans ensured that the major naval and maritime powers took Indonesia’s interests into account in negotiating the new regimes governing archipelagic States and straits used for international navigation. As a result, Indonesia is one of the major beneficiaries of the legal regime set out in unclos. Consequently, it is in Indonesia’s national interests to ensure that the rules-​based legal order set out in unclos is maintained and not undermined. The legal regimes governing archipelagic States and straits used for international navigation establish a delicate balance between the rights of navigation

85

86 87

There are about 82 ships per day crossing the Lombok Strait between 2014 and 2016, where 34.17% of them are fast boats. Meanwhile, the Sunda Strait experiences a higher rate at about 145 ships per day in 2016 and is dominated by passenger ships (about 77.4%) (See Annex 1 of the Ncsr Doc.5/​I nf.23, supra note 76, para. 22; Annex 1 of the Ncsr Doc.5/​I nf.24, supra note 80, para. 24). Annex 1 of the Ncsr Doc.5/​I nf.23, supra note 76, paras. 18–​19; Annex 1 of the Ncsr Doc.5/​I nf.24, supra note 80, paras. 20–​21, 44. Annex 1 of the Ncsr Doc.5/​I nf.23, supra note 76, para. 46.

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and overflight of user States and the sovereignty of archipelagic States and States bordering such straits. A key provision is that the sovereignty of the archipelagic States and bordering States must be exercised subject to the provisions in unclos. unclos permits the bordering States and archipelagic States to enhance the safety of navigation and to protect the marine environment by proposing measures for adoption by the imo. Indonesia has taken the lead among archipelagic States in proposing such measures for adoption by the imo. It did so in the soms together with Malaysia and Singapore. It is now doing so in the Lombok and Sunda Straits by proposing measures to the relevant committees and subcommittees of the imo. This should be welcomed, as it demonstrates that Indonesia is taking steps to enhance the safety of navigation and protect the marine environment in accordance with provisions in unclos. Indonesia was also the first archipelagic State to officially designate archipelagic sea lanes through its archipelagic waters. However, the current designation is only a “partial designation.” Consequently, the one issue that Indonesia may want to reexamine is whether its security interests are adequately protected through the partial designation of three north-​south archipelagic sea lanes. Until the imo approves a complete designation of Indonesia’s archipelagic sea lanes, foreign ships and aircraft have the right to transit the Indonesian archipelago in their normal mode on all routes normally used for international navigation. Therefore, foreign submarines can transit the Indonesian archipelago while submerged on all routes normally used for international navigation. As the balance of naval power in Asia evolves, emerging naval powers are likely to adopt the position of the United States and insist that they have a right to exercise the right of archipelagic sea lanes passage on all routes normally used for international navigation. This could pose a threat to Indonesia’s national security. Therefore, it may be in the national interests of Indonesia to reconsider its position and propose the adoption of an east-​west sea lane by the imo.

pa rt 5 Search and Rescue

∵

­c hapter 15

Towards the Establishment of a Search and Rescue Cooperation Mechanism in the South China Sea: Regulatory Framework, Challenges and Prospects Yubing Shi1 Abstract The South China Sea (scs) is an area where lots of accidents occur from time to time, and the Search and Rescue (sar) operations play a significant role in rendering assistance to persons in distress. As a semi-​enclosed sea, the scs is surrounded by six neighbouring States which have disputes on the sovereignty of certain maritime features. Furthermore, there is no regional agreement on the establishment of Search and Rescue Regions (srr s) in this area. Indeed, the sar operations in the scs can be both an opportunity for cooperation and a source of conflict. This situation makes it imperative to establish an effective and efficient sar cooperation mechanism in the scs. This paper first examines the current global and regional regulatory framework for the establishment of a sar cooperation mechanism in the scs, and then identifies the challenges in this framework for furthering the construction of a regional sar cooperation mechanism in the scs. It is arguable that reaching a regional sar treaty in the scs might be a feasible way forward.

Keywords search –​and rescue –​South China Sea –​search –​and rescue region –​cooperation mechanism –​ regulations –​ policy

1 Yubing Shi is a Professor in the South China Sea Institute at Xiamen University, China. The author appreciates the questions and comments raised by the participants from the 42nd Virginia Annual Conference of Oceans Law & Policy held during May 23–​26, 2018 in Beijing. This research was supported by National Social Science Foundation of China (17VHQ012). Author’s PowerPoint available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​ beijing-​shi.pdf.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_019

340 Shi 1

Why is a sar Cooperation Mechanism in the scs Needed?

The South China Sea (scs) is a significant semi-​enclosed sea connecting the Pacific Ocean and the Indian Ocean, and over half of the world’s annual merchant fleet tonnage passes through this region. It is an important area for international shipping, fishing and air transportation. However, there is no generally accepted geographic definition for the scs. Overall, there are at least three views on this issue. The first view adopts the “six plus one” approach (China, Vietnam, the Philippines, Brunei, Malaysia, Indonesia, plus Chinese Taiwan) which aims to address sovereignty or maritime delimitation disputes in this region.2 In contrast, the second view, held by the International Hydrographic Organization (iho) and some scholars,3 purports that there are seven coastal States in the scs, namely China, Vietnam, the Philippines, Brunei, Malaysia, Indonesia and Singapore. The third view, taken by some Chinese scholars,4 believes that there are nine coastal States in the scs, and the Gulf of Thailand should be included as a part of the scs. In this case, Thailand and Cambodia should also be included in addition to the scope of the second view. Given the human rights orientation of search and rescue (sar) services, this paper adopts the third view in terms of the geographic scope of the scs. In this way the participation of more coastal States would to a significant extent ensure the effective sar cooperation. On top of sovereignty related disputes and issues, the scs has its fair share of natural phenomenon such as typhoons and storms which adversely impact maritime activity, particularly shipping and fishing. According to the data from the International Maritime Organization’s (imo) Global Integrated Shipping Information System (gisis), during the period from 24 May 1984 to 24 May 2014, at least 89 maritime disasters/​incidents occurred in the scs. Among them, 60 incidents fall into the category of “very serious casualties”, 21 incidents belong to the category of “serious casualties”, one incident belongs to the category of “less serious casualties”, and seven of them are “marine incidents”.5 2 For example, Professor Song Yanhui from Taiwan is of this view. 3 See, e.g., iho, “Limits of Oceans and Seas (Special Publication No. 28)” (3rd Edition, 1953), p.30; Shih-​Ming Kao, Nathaniel Sifford Pearre & Jeremy Firestone, “Regional Cooperation in the South China Sea:  Analysis of Existing Practices and Prospects”, Ocean Development & International Law, Vol. 43, No. 3, 2012, pp. 283–​295, at 286. 4 For example, Professor Kuenchen Fu from the South China Sea Institute of Xiamen University takes this view. 5 Xiang Li, “The Realistic Choice of the Search and Rescue Mechanism in the South China Sea: An Empirical Analysis based on Marine Accidents in the South China Sea”, Humanities & Social Sciences Journal of Hainan University, Vol. 32, No. 6, 2014, pp. 50–​58, at 50 (in Chinese).

Establishment of a Search and Rescue Cooperation Mechanism

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Given that the probability of accidents and incidents involving ships, aircraft and fishing vessels is high, it is imperative to have sar support to save lives in the scs.6 It was reported that in March 2014 after the Malaysia Airline MH370 bound for Beijing was missing over the scs, Chinese vessels found it time-​consuming to enter the territorial sea of Malaysia and Indonesia to search for the missing plane.7 This incident demonstrated the lack of coordination among coastal States in the scs with regard to the implementation of their duty to render assistance at sea, as provided by Article 98 of the United Nations Convention on the Law of the Sea (unclos), and by the sar Convention and the Safety of Life at Sea (solas) Convention. Indeed, since the 1980s regional cooperation on the protection of the marine and coastal environment has been undertaken in the scs. These efforts include the unep East Asian Seas Regional Seas Program, the Partnership in Environmental Management for the Seas of East Asia, the scs Large Marine Ecosystem Project, the Intergovernmental Oceanographic Commission (ioc) Sub-​Commission for the Western Pacific, unep/​g ef scs Project, as well as the Workshop on Managing Political Conflicts in the scs, Council for Security Cooperation in the Asia Pacific (cscap) and the efforts under the Association of Southeast Asian Nations (asean). However, these regional practices were mostly established or guided by soft law without legal obligations and do not focus on sar operations.8 Meanwhile, some preliminary cooperation related to sar operations in the scs has been implemented by bordering States in the scs bilaterally. Examples are the joint sar exercise named “China-​Philippines Cooperation 2004”, the 2011 Basic Principles Agreement and High-​Level Summit and Developments between China and Vietnam, and the joint sar exercise

6 Generally speaking, “search” refers to “[a]‌n operation, normally co-​ordinated by a rescue co-​ordination centre or rescue sub-​centre, using available personnel and facilities to locate persons in distress”; whereas “rescue” refers to “[a]n operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety.” imo/​ icao, “International Aeronautical and Maritime Search and Rescue Manual: Volume iii Mobile Facilities” (IAMSAR Manual Volume III), 2005 Edition, Glossary, pp. xiii-​xiv. 7 Vijay Sakhuja, “Search and rescue operations could help counter South China Sea tensions” Nikkei Asian Review (August 31, 2015), available at . 8 See Shih-​Ming Kao, Nathaniel Sifford Pearre & Jeremy Firestone, “Regional Cooperation in the South China Sea:  Analysis of Existing Practices and Prospects”, Ocean Development & International Law, Vol. 43, No. 3, 2012, pp. 283–​295, at 286–​290.

342 Shi between China and Vietnam in August 2012.9 It appears that a sar cooperation mechanism in the scs is urgently needed. Having established the necessity of a sar cooperation mechanism in the scs, this paper will continue to examine the current regulatory framework for establishing such mechanism in this region and associated challenges and prospects for establishing this mechanism in the following sections. 2

Regulatory Framework for Establishing a sar Cooperation Mechanism in the scs

The current regulatory framework for establishing a sar cooperation mechanism in the scs mainly includes some primary international treaties and instruments and regional treaties and arrangements.10 The status of ratification of these legal instruments by the nine coastal States of the scs is provided in Table 15.1. 2.1 International Treaties and Other Instruments 2.1.1 1979 sar Convention11 and Its Amendments, and the 1944 Convention On International Civil Aviation (Chicago Convention) The 1979 sar Convention is the primary international treaty that provides multi-​state coordination of the sar system. It entered into force in 1985, and was amended in 2004 and this amendment entered into force in 2006. Administered by the imo, this convention implements a manual for coordinating sar operations both within the coastal State and between neighbouring States.12 This treaty aims to create an international system for coordinating sar operations and guaranteeing their efficiency and safety. The contracting parties could create sar regions (srr) which are joint sar zones,13 and they 9 10 11 12 13

See, e.g., Ramses Amer, “China, Vietnam, and the South China Sea: Disputes and Dispute Management”, Ocean Development & International Law, Vol. 45, 2014, pp.17–​40, at 25–​26. See Qu Bo, “On cooperation mechanisms of regional search and rescue in the South China Sea”, Chinese Journal of Maritime Law, Vol. 26, No. 3, 2015, pp. 60–​67, at 61–​64. International Convention on Maritime Search and Rescue (adopted 27 April 1979, in force 22 June 1985); 1405 UNTS No. 23489. Amy E. Moen, “For Those in Peril on the Sea: Search and Rescue under the Law of the Sea Convention”, Ocean Yearbook, Vol. 24, 2010, pp. 377–​410, at 383. “The search and rescue region (srr)” refers to “[a]‌n area of defined dimensions, associated with a rescue co-​ordination centre, within which search and rescue services are provided.” imo/​i cao, “International Aeronautical and Maritime Search and Rescue Manual:  Volume III Mobile Facilities” (IAMSAR Manual Volume III), 2005 Edition, Glossary, p. xiv.

√

√

√

√

√

√

√

√

1944 Chicago Convention 1979 sar Convention 1974 solas Convention 2002 doc √

√

√

×

× √

√

√

√

√

×

√

√

Brunei Malaysia

√

√

Philippines

√

√

√

√

√

Indonesia

√

√

√

√

√

Singapore

√

√

×

√

√

√

√

×

Signed, not ratified √

Thailand Cambodia

Note: “√” indicates the sign and ratification by the State; “×” indicates that the State has not signed or ratified the legal instrument.

√

√

1982 unclos

Vietnam

China

Treaties/​ Instruments

table 15.1 Status of ratification of main international instruments by coastal States in the scs (as of May 2018)

newgenrtpdf

Establishment of a Search and Rescue Cooperation Mechanism343

344 Shi could conduct cross-​border operations in the shared zone and organise joint patrols.14 The 25th Maritime Safety Committee (msc) of the imo divided the world ocean into 13 sar Regions, and this practice is generally effective on the ground that it requires the coastal States responsible for the srr to provide sar services. Additionally, State parties are encouraged to reach sar agreements with their neighbouring States to regulate and coordinate sar operations. However, deficiencies also exist in this convention. Article 3.1.1 of the 1979 sar Convention provides that, Chapter 3 Co-​operation between States 3.1 Co-​operation between States 3.1.1 Parties shall co-​ordinate their search and rescue organizations and should, whenever necessary, co-​ordinate search and rescue operations with those of neighbouring States. Furthermore, Annex Section 2.1.10 states: “Parties shall ensure that assistance be provided to any person in distress at sea” as opposed to: “Parties shall provide”. This delicate expression could be interpreted as “[removing] the State as a culpable actor in the success or failure of the sar system”.15 In other words, according to the 1979 sar Convention, “a coastal State’s only true obligation at international law is to enact laws, and that the mere passing of legislation and setting of policy goals might be sufficient to extinguish that burden”.16 Another deficiency of this treaty is that the duties of coastal States in their srr are only fully met if the rescued persons can disembark in a place of safety.17 The question where rescued persons can and should disembark was debated during the general revision of the imo’s sar system within the msc. As a result, the msc adopted two Resolutions to address this issue focussing on the determination of the place of safety, namely “the location where the rescue operations can be considered as completed.”18 Table 15.1 indicates that of the nine coastal States in the scs, five States (Philippines, Brunei, Malaysia, Thailand and Cambodia) have not joined the 1979

14

Seline Trevisanut, “Search and Rescue Operations in the Mediterranean:  Factor of Cooperation or Conflict?”, International Journal of Marine and Coastal Law, Vol. 25, 2010, pp. 523–​542, at. 525. 15 Moen, supra n 12, at 383. 16 Ibid., at 384. 17 Trevisanut, supra n 14, at 524. 18 Ibid., at 525.

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sar Convention. The low level of acceptance of this treaty by coastal States in this region would probably affect their collaboration in sar operations. The 1944 Convention on International Civil Aviation (Chicago Convention) is a treaty that provides general regulation on aircraft in distress and investigation of accidents. The International Civil Aviation Organization (icao) is currently doing this work. To date all coastal States of the scs have joined this treaty. 2.1.2

1974 International Convention for the Safety of Life at Sea (solas)19 and Its Amendments Different from the 1979 sar Convention, the 1974 solas has been ratified by all coastal States of the scs. However, this treaty does not provide high level requirements on sar operations. The Annex to the 1974 solas provides that, The Contracting Government responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-​ordination and cooperation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety.20 Based on this provision, the sar State has a “primary” responsibility to ensure “coordination and cooperation”. Nonetheless, this obligation is an obligation of conduct rather than an obligation of result.21 It appears that a rescue mission is clearly not complete until that obligation is discharged. Similar to the 1979 sar Convention, this regulation does address the question of “which State rescued persons must be disembarked in the absence of agreement among affected States.”22 It has been argued that current State practice, for example the MV Tampa incident in 2001, has constituted opinio juris that the affected States considered themselves under no legal obligation to permit access of a vessel carrying rescued persons to port or to allow their disembarkation.23 In 2004, the imo issued “Guidelines on the Treatment of Persons Rescued at Sea”, but the duty of rescue contains no concrete obligation governing “the 19

International Convention for the Safety of Life at Sea (solas) (adopted 1 November 1974, in force 25 May 1980); 1184 UNTS No. 1861. 20 1974 solas, Annex, Ch v, Reg. 33(1.1). 21 Alexander Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck, Hart and Nomos, 2017), p. 729. 22 Ibid. 23 Ibid., at 728.

346 Shi disembarkation of rescued persons”.24 It seems that regional cooperation will be a feasible way to address this issue.25 2.1.3 1982 unclos26 Table 15.1 reveals that currently all coastal States in the scs are party to unclos, except that Cambodia has signed but not ratified this treaty. Article 98 of unclos is a summary of the duties agreed upon as between flag and coastal States in terms of sar operations. Article 98 “Duty to render assistance” provides that, 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose. This article is under Part vii “High Seas” of unclos; however, it has been generally accepted that the duty to render assistance applies to all maritime zones.27 This rule is closely connected with the principle of safety of life at sea that provides a limit to the freedom of navigation. Based on existing treaties, 24 25 26 27

Ibid. See Anthony Morrison, “Shipping: Safety of Life at Sea”, in Robin Warner and Stuart Kaye (eds.), Routledge Handbook of Maritime Regulation and Enforcement (Routledge, 2016), p. 172. United Nations Convention on the Law of the Sea (“UNCLOS”, adopted 10 December 1982, in force 16 November 1994); 21 ilm (6):1261–​1354 (1982). According to Article 58(1) of unclos, Article 98 has effect in the exclusive economic zone (eez). Under Article 18(2), “rendering assistance” is included within the definition of passage for the purposes of innocent passage through the territorial sea. The duty therefore applies to the whole ocean. Proelss, supra note 21, at 726.

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national legislation and State practice, the duty to render assistance has generally been recognized as a rule of customary law.28 While Paragraph one of Article 98 places requirements on flag States, Paragraph two requires coastal States to collaborate with neighbouring States in promoting sar operations. There are at least two possible approaches to the interpretation of the duty to render assistance in Article 98(2). The first approach is a rights-​based approach, which provides that “the right of rescue would be an inchoate right in seafarers and those plying international or foreign waters”, but this approach also indicates that “the individual’s right to be rescued is limited by the State’s right to self-​protection.”29 This is because “an assessment of danger to the rescuer is always the very first step of a mission, in order to avoid a situation of the rescuer requiring assistance themselves”.30 The second approach is a positive but limited coastal State obligation approach. Article 98(2) uses the word “promote” rather than “provide”. This means that States may interpret and implement this obligation differently based on their domestic legal system.31 And States may also interpret the level of adequacy and effectiveness differently. In practice, the coastal State’s actual capacity to render assistance will definitely be affected by the natural features and distinctiveness of its coastal waters.32 Accordingly, coastal States are subjected to “limits based on chance, innate hazards, and geo-​political positions” in rendering assistance to persons in distress.33 Furthermore, as a soft law instrument, international aeronautical and maritime sar manuals also provide additional guidelines for implementing the 1979 sar Convention and other relevant treaties. 2.2 Regional Treaties and Arrangements At the regional level, the 2002 Declaration on the Conduct of Parties in the South China Sea (doc) is the main instrument that regulates cooperative sar operations. Paragraph 6 of the doc provides that, The Governments of the Member States of asean and the Government of the People’s Republic of China,

…

28 Ibid. 29 Moen, supra n 12, at 393. 30 Ibid., at 394. 31 Ibid., at 397. 32 Ibid., at 399. 33 Ibid.

348 Shi 6. Pending a comprehensive and durable settlement of the disputes, the Parties concerned may explore or undertake cooperative activities. These may include the following: a. marine environmental protection; b. marine scientific research; c. safety of navigation and communication at sea; d. search and rescue operation; and e. combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery at sea, and illegal traffic in arms. The modalities, scope and locations, in respect of bilateral and multilateral cooperation should be agreed upon by the Parties concerned prior to their actual implementation. [emphasis added] Although the 2002 doc is not a legally binding instrument, its participants (most of them are coastal States of the scs) committed themselves to show restraint in the scs, particularly in the areas of disputed sovereignty. Further, they agreed to explore or undertake cooperative activities, including sar operations. Nonetheless, the 2002 doc explicitly expresses that “the modalities, scope and locations, in respect of bilateral and multilateral cooperation should be agreed upon by the Parties concerned prior to their actual implementation.” This indicates that it is not straightforward to conduct cooperative sar operations, and this has been proved by the subsequent practice in this region. In August 2018, the single negotiation text on a code of conduct (coc) between China and the members of the Association of Southeast Asian Nations (asean) was adopted. In November 2018, Chinese premier LI Keqiang announced that China would aim to finalize the negotiations on coc based on the consensus in three years. This demonstrates a certain degree of political will from the Chinese perspective to address issues related to the scs cooperatively at the regional level. It is expected that a cooperative sar mechanism would be included in a future coc. The above discussion indicates that there is a gap and inadequacy in the current regulatory framework for establishing a sar Cooperation Mechanism in the scs. Some coastal States of the scs have not joined all international treaties relating to sar operations. Meanwhile, some coastal States have joined some international conventions and agreements on sar operations, such as the 2002 doc; however, some general regulations or recommended provisions are still to be implemented through regional cooperation of coastal States.

Establishment of a Search and Rescue Cooperation Mechanism

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349

Challenges for Establishing a sar Cooperation Mechanism in the scs

It is undoubted that it would be difficult to establish a sar cooperative mechanism in the scs. Of the numerous barriers, the following three challenges deserve more attention. First, Current sar region boundaries in the scs are inconsistent with national maritime boundaries, and there are some overlapping sar regions, which have caused difficulties for effective cooperation on sar operations. Figure 15.1 provides the designation of current srr s by coastal States in the scs.34 From this Figure, we can find that there are some overlapping srr s in the scs. For example, China and Chinese HK share some srr s with Singapore. Singapore has obtained a large srr in the scs. Meanwhile, the current srr boundaries are not consistent with national maritime boundaries. For example, some of Vietnam’s srr s cover some maritime features and their adjacent waters owned by China. And this, along with the lack of ratification of the sar Convention by some coastal States, suggests that there could still be problems in conducting large-​scale maritime sar operations in the scs, particularly in disputed waters.35 As suggested by a Vietnamese scholar, the difference between srr boundaries and national maritime boundaries has become a barrier to effective cooperative sar operations.36 Accordingly, it has been argued that Vietnam, China, Singapore and the imo should strengthen their talks to clearly define the srr boundaries in the scs and cooperative arrangements in the disputed areas.37 From this sense, the sar operations in the scs can be regarded as both a source of conflict and an opportunity for cooperation. Second, coastal States in the scs have differing legal obligations under international treaties relating to sar operations.

34 See also Nigel Clifford and Christine MacMillian, “EAS Search and Rescue Overview:  International Standards, Protocols and Mechanisms”, available at . 35 Sam Bateman, “Background paper:  Existing and previous maritime cooperative arrangements in the South China Sea” (August 11–​ 13, 2013), available at . 36 Nguyen Hong Thao, “Good Order at Sea: Challenges and Priorities of Vietnam”, in Joshua Ho and Sam Bateman (eds.) Maritime Challenges and Priorities in Asia: Implications for Regional Security (Routledge, 2012), p. 172. 37 Ibid.

350 Shi

­f igure 15.1 Maritime sar Regions in the Southeast Asian Region SOURCE: International Maritime Organization

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As discussed earlier, the 1979 sar Convention has a relatively low level of acceptance in the region. This is probably due to “the costs involved in establishing [a]‌ sar infrastructure and a reluctance to allow searching ships or aircraft of another country access to sovereign waters or territory.”38 And this situation has to be improved if effective and efficient sar operations are to be achieved in the scs. Third, coastal States in the scs have different setting of sar agencies and different capabilities in providing sar service, which makes it difficult for them to collaborate in sar operations. Currently, of the coastal States in the scs, Singapore is the only developed State. Accordingly, a huge gap exists in the capabilities of these coastal States in conducting sar operations. Some States, such as the Philippines and Cambodia, still lack necessary sar facilities and personnel. 4

Prospects for Establishing a sar Cooperation Mechanism in the scs

As things currently stand, there might be three options for establishing a cooperative sar mechanism in the scs. 4.1 Code of Conduct (coc) At this stage, it seems most likely that the sar issue would be included in a future coc. However, there might be a very general regulation on this issue rather than a detailed design on specific points. Now it remains unknown whether a future coc would be legally binding, whether it would be a dispute settlement mechanism or a risk or conflict management mechanism. The geographic coverage of this instrument is also unclear. In this case, it might not be feasible to rely on this instrument to address a package of issues, including a cooperative sar mechanism. 4.2 South China Sea Cooperation Council Current literature has discussed the ineffectiveness of existing platforms in addressing the sar issue in the scs, such as asean.39 Judge gao proposed to establish a scs Cooperation Council, an Arctic Council type of regional organization, to address this institutional inadequacy. This proposal can be underpinned by a number of factors. First of all, the Arctic Council is a workable 38 Bateman, supra note 35. 39 See, e.g., Gao Zhiguo, “Review and Prospect of the Security Cooperation Mechanisms in the South China Sea”, Journal of Boundary and Ocean Studies, Vol. 1, No. 2, 2016 (in Chinese).

352 Shi solution to address regional problems including the sar issue. The 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011 Arctic sar Agreement), adopted under the auspice of the Arctic Council, can be a good example. Second, the Arctic Ocean and the scs have some similarities in regard to their geographic configuration. For example, the Arctic Ocean and the scs are both regarded as a semi-​enclosed sea under Article 122 of unclos by some scholars.40 Accordingly coastal States bordering the two semi-​enclosed seas “shall endeavour, directly or through an appropriate regional organization”, to cooperate in a range of issues. The main uncertainty regarding this proposal is that it might be a very time-​ consuming process to establish a scs Cooperation Council. Only after the establishment of this council, might it be possible to start the negotiations on a specific sar agreement. If this is the case, why not directly adopt a regional agreement on the sar issue in the scs? Agreement on Cooperation on Aeronautical and Maritime sar in the South China Sea? As discussed earlier, currently the sar cooperation in the scs has been incorporated in some political declarations involving maritime entitlements of coastal States, such as the 2002 doc. Indeed, this approach associates sar operations and srr s closely with the sovereign rights of coastal States. It is thus necessary to have an independent treaty on the Cooperation on Aeronautical and Maritime sar in the South China Sea. In this case the 2011 Arctic sar Agreement can be a good example where “the delimitation of sar regions is not related to and shall not prejudice the delimitation of any boundary between States.”41 Some of proposed elements of this agreement are provided below.42 4.3

4.3.1 Re-​Delimitation of srr s Article 2.1.8 of Chapter 2 of the 1979 sar Convention provides that, 2.1.8 Parties should seek to promote consistency, where applicable, between their maritime and aeronautical search and rescue services while 40

See, e.g., Kristin Bartenstein, “The Arctic Region Council Revisited:  Inspiring Future Development of the Arctic Council”, in Suzanne Lalonde and Ted L. McDorman (eds.), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand (Brill Nijhoff, 2015), pp. 55–​75. 41 1979 sar Convention art 2.1.7. 42 For a similar proposal on this issue, see QU, supra note 10, at 64–​66.

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considering the establishment of maritime search and rescue regions which shall be established by agreement in accordance with paragraph 2.1.4 or the reaching of agreement upon appropriate arrangements in accordance with paragraph 2.1.5. [emphasis added] Although this provision uses the word “should” rather than “shall”, this provision indicates that it is a requirement to keep the level of a State’s sar service consistent with its srr. Or in other words, the delimitation of sar regions should take the capabilities of coastal States into consideration. In the scs, some States, such as Cambodia and the Philippines, might not have sufficient capability to conduct time-​consuming sar options. Whereas some other States, such as China, might use its facilities and equipment to provide better “good goods” like sar to the persons in distress in the scs. It is thus necessary to re-​delimitate srr s of certain coastal States in the scs to reflect respective sar willingness and capabilities. There might be a concern from certain coastal States about their sovereignty. On the one hand, as Article 2.1.7 of the 1979 sar Convention stipulated, “[t]‌he delimitation of search and rescue regions is not related to and shall not prejudice the delimitation of any boundary between States.” So this concern is not necessary. On the other hand, from a human rights perspective, to the most extent saving life at sea and taking the capabilities of coastal States into consideration should be treated as a key principle. In this case, the safety of life at sea should not be sacrificed by the excessive protection of sovereignty. 4.3.2

Request to Enter the Territory of a Party for Purposes of sar Operations Article 3.1  “Co-​operation between States” of 1979 sar Convention provides that, Unless otherwise agreed between the States concerned, a Party should authorize, subject to applicable national laws, rules and regulations, immediate entry into or over its territorial sea or territory of rescue units of other Parties solely for the purpose of searching for the position of maritime casualties and rescuing the survivors of such casualties. [emphasis added] The word “should” indicates that this requirement is recommendatory in nature, rather than a compulsory obligation. It is thus necessary to regulate this issue in a regional sar agreement in the scs.

354 Shi 4.3.3

Cooperation among the Parties, Including Exchange of Information on sar Operations, Joint sar Exercise, and Capability Building Chapter 2 “Organization and Co-​ordination” of the 1979 sar Convention regulates the issue on information exchange. However, Thailand, for example, is not a party to this convention. It is thus important to regulate this issue in a regional sar treaty in the scs so as to impose such obligations to all coastal States in the scs. 4.3.4 Relationship with Non-​Parties In addressing the relationship of the agreement with non-​parties, the 2011 Arctic sar Agreement provides that “[a]‌ny Party to this Agreement may, where appropriate, seek cooperation with States not party to this Agreement that may be able to contribute to the conduct of sar operations, consistent with existing international agreements.” This provision may also be employed in a future sar agreement in the scs. In this case, non-​coastal States of the scs and some coastal States that will not join this treaty may also contribute to cooperative regional sar operations. 4.3.5 Funding The 2011 Arctic sar Agreement provides that “unless otherwise agreed, each Party shall bear its own cost deriving from its implementation of this Agreement.” This arrangement is suitable for coastal States in the Arctic. However, due to the capability gaps that exist in the coastal States of the scs, it is suggested that a sar Fund be established to supplement the cost involving the sar operations in the scs. 4.3.6 The Settlement of Disputes through Negotiations As regulated in the 2011 Arctic sar Agreement, “the Parties shall resolve any disputes concerning the application or interpretation of this Agreement through direct negotiations.” State practice reveals that direct negotiations are an effective way for States to address disputes arising from their sar operations. Taking into account the regional legal tradition, this approach should also be adopted by a future scs sar Agreement. Furthermore, it is believed that the establishment of more maritime sar bases in the scs would be helpful in promoting the effectiveness and efficiency of sar operations in this region.

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355

Concluding Remarks

Generally speaking, the current state of sar operations in the scs is not sufficient to render assistance to persons in distress effectively and efficiently. The analysis of the current regulatory framework indicates that there is a gap and inadequacy in this framework and a number of challenges to fill the gap. To address this issue, it is proposed that the coastal States of the scs jointly establish a regional sar cooperation mechanism, possibly in the form of a regional treaty, as soon as possible. It is expected that in this way assistance to the persons in distress will be rendered more effectively and efficiently.

­c hapter 16

Understanding the Challenge: Mass Rescue Operations at Sea Richard Button and Thomas Gorgol1 Abstract This paper provides an analysis of the challenges associated with a mass rescue operation (mro) at sea. In particular, the challenges associated with the coordination and conduct of an mro offshore, with limited resources readily available to render assistance to possibly hundreds, if not thousands of persons in distress. While government agencies and regulatory bodies continue to improve standards and regulations to prevent disasters at sea, search and rescue (sar) authorities must still assess the risk, plan and conduct response preparedness activities for these low probability, high consequence disasters that may result in a significant loss of life. This paper will discuss the imperative for mro response planning and preparedness, identify lessons learned from previous maritime disasters and mro s, and challenges sar authorities must consider when planning, coordinating and conducting maritime mro s.

Keywords search and rescue –​mass rescue operation –​maritime disasters –​rescue at sea

1

Introduction “The thing I constantly think about—​we were so, so very lucky. The difference between our ship and the Titanic is we weren’t caught in

1 Richard (Rick) Button is the Chief, Coordination Division, Office of Search and Rescue, U.S. Coast Guard Headquarters, Washington, DC, and serves as secretary to the U.S. National Search and Rescue Committee. Mr. Button retired from the Coast Guard in 2006 after serving 22 years on active duty and has served 13 years in his current position. During his Coast Guard career, Mr. Button served on several Coast Guard cutters and twice served as commanding officer. Tom Gorgol is the Mass Rescue Operations, Program Manager, Office of Search and

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_020

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the middle of the ocean,” said Kajian. … “If we had been caught in the middle of the ocean, most of these people wouldn’t have survived.”2 Regardless of the sophistication of passenger ship and aircraft design, regulations, inspections, policies and procedures, sar authorities and the maritime community continue to respond to disasters at sea where large numbers of people in distress must be rescued. With passenger ships sailing worldwide, and passenger aircraft on daily transoceanic flights, there will always be the risk of a maritime disaster and a Mass Rescue Operation (mro) occurring.3,4 In these maritime disasters, the challenge will be to mount an effective rescue of a large number of survivors in the water or survival craft, a response complicated by Rescue, U.S. Coast Guard Headquarters, Washington, DC. Mr. Gorgol served 21 years on active duty for the U.S. Coast Guard and has served five years in his current position. PowerPoint available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​beijing-​button.pdf. 2 Mike Kajian, passenger on board Passenger Ship Costa Concordia, quoted in:  Meg Jones, “A year later, Oshkosh survivor of cruise ship crash still cruising,” Milwaukee-​ Wisconsin Journal Sentinel (January 14, 2013); article available on the Internet at http://​ www.jsonline.com/​news/​wisconsin/​one-​year-​later- ​survivor- ​of- ​cruise- ​ship- ​crash- ​still-​ cruising-​nh8cn8s-​186859382.html. 3 The International Aeronautical and Maritime Search and Rescue Manual (“IAMSAR Manual”), Volume 1, defines a mass rescue operation as, “Search and rescue services characterized by the need for immediate response to large numbers of persons in distress, such that the capabilities normally available to search and rescue authorities are inadequate.” International Maritime Organization (imo)/​International Civil Aviation Organization (icao), IAMSAR Manual, Volume 1 (London: imo, 2016): xii. The iamsar Manual goes on to state that, “MROs are required less frequently than typical rescue efforts, but have high potential consequences. Flooding, earthquakes, terrorism, and large passenger or ship disasters are examples of scenarios that may involve the need for MROs. Extensive preparations and resources are required to conduct MROs successfully.” (paragraph 6.6.3) What is absent from this definition is a specific number of persons requiring rescue. SAR authorities have acknowledged it would be counter-​productive to assign a “number of persons in distress” requirement to the mro definition. How many persons in distress would be required for the incident to be considered an mro? If there was one less person in distress than the required number, would an incident not be considered an mro? In many instances, the time of day, location, weather, sea state, etc., may be a better determiner of whether a sar case is an mro, not necessarily the number of persons in distress. 4 The U.S. National Search and Rescue Committee (nsarc; https://​cglink.uscg.mil/​NSARC) differentiates between the internationally recognized definition of an mro and “catastrophic incident,” which is defined in the National Response Framework (June, 2016)  as, “Any natural or manmade incident, including terrorism, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/​or government functions.” (Page  1) Catastrophic incidents involve the destruction of infrastructure (e.g., hurricanes, earthquakes, tsunamis, etc.) and may include an mro; nsarc considers mro s to involve passenger transportation systems, such as passenger ships, ferries, aircraft, etc.

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weather and sea conditions, hypothermia, as well as the distance from available search and rescue (sar) facilities.5 Despite all the improvements to aeronautical and maritime passenger transportation safety, low probability and high consequence mro events continue to occur globally, putting thousands, if not tens of thousands of people at risk. Through the International Maritime Organization (imo) and the International Civil Aviation Organization (icao), the international community continues to work towards improving aeronautical and maritime passenger transportation safety to minimize these horrific disasters.6 Lessons learned from disasters are collected and analyzed; new safety regulations and procedures are adopted and implemented. While these measures are critical in preventing or minimizing the impact of a maritime disaster, they continue to occur. Responding to such a disaster at sea, with many potential survivors, results in an mro response challenge, with numerous difficulties and extreme challenges for all involved. Furthermore, with the increase in the capacity of passenger ships and aircraft, the challenge has never been greater; especially if a disaster occurs hundreds of miles offshore, from the nearest coastal State, such that Search and Rescue (sar) resources may be limited in rendering an effective and efficient coordinated response.7, 8 Even if sar resources are available, few coastal States are prepared to mount an effective response to a disaster at sea. 5

6

7

8

The Annex to the International Convention on Maritime Search and Rescue (“sar Convention”), 1979, defines search as, “An operation, normally co-​ordinated by a rescue co-​ ordination centre or rescue cub-​centre, using available personnel and facilities to locate persons in distress.” (paragraph 1.3.1) Rescue is defined as, “An operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety.” (paragraph 1.3.2). sar facility is defined as, “any mobile resource, including designated search and rescue units, used to conduct search and rescue operations.” (paragraph 1.3.7). imo is the United Nations specialized agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships (www.imo.org). icao is a specialized agency of the United Nations with responsibility for promoting the safe and orderly development of international civil aviation throughout the world (www.icao.int). There are passenger aircraft capable of transporting up to 850 passengers (e.g., Airbus A380). As of June 2017, the Symphony of the Seas, owned by Royal Caribbean Cruises, Ltd., is the largest passenger ship in the world, at 228,021 gross tons and able to carry 6,680 passengers and 2,200 crew. Statistics obtained from Royal Caribbean International Press Center, Ship Fast Facts. Available on the internet at: https://​www.royalcaribbeanpresscenter.com/​ fact-​sheet/​31/​symphony-​of-​the-​seas/​; accessed on October 19, 2018. If one of these large passenger ships sank requiring the rescue of the passengers and crew, the challenge would be significant. By comparison, in Fiscal Year (FY) 2017, the entire U.S. Coast Guard had 16,046 sar cases and 4,225 lives saved. The annex to the sar Convention, defines search and rescue service as, “The performance of distress monitoring, communication, co-​ordination and search and rescue functions,

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sar authorities are responsible for the coordination and conduct of sar operations and mros within their respective sar regions.9 For sar authorities worldwide, the risk and complexity of planning and responding to an mro has continued to increase as the number of passenger ships and aircraft continues to increase. Because of the potential significant loss of life associated with a maritime disaster and subsequent mro, this paper was developed for two reasons. First, while considerable work has been accomplished towards preventing maritime disasters, the purpose of this analysis is to draw attention to the challenges associated with the planning of and responding to an mro, with an off-​shore mro event being the worst-​case scenario. If sar authorities can effectively plan, prepare and respond when this low probability, high risk disaster occurs in the maritime environment, then the loss of life can be minimized. Secondly, this paper provides sar authorities and planners with an awareness of the challenges that must be considered in planning and responding to a maritime mro. 2

Mass Rescue Operation (mro)

The International Aeronautical and Maritime Search and Rescue (iamsar) Manual describes the worst-​case mro scenario: Such incidents might involve hundreds or thousands of persons in distress in remote and hostile environments. A large passenger ship collision, for example, could call for the rescue of thousands of passengers and crew in poor weather and sea conditions, with many of the survivors having little ability to help themselves. Preparedness to mount a large and rapid response would be critical to preventing large-​scale loss of lives.10

9 10

including the provision of medical advice, initial medical assistance, or medical evacuation, through the use of public and private resources including co-​operating aircraft, vessels and other craft and installations.” (paragraph 1.1.3) The annex to the sar Convention goes on to say that, “Parties having accepted responsibility to provide search and rescue services for a specified area shall use search and rescue units and facilities for providing assistance to a person who is, or appears to be, in distress at sea.” (paragraph 2.1.9) Any resources can be utilized to save lives at sea. Coastal State sar authorities must be able to coordinate the response to persons in distress, normally though their Rescue Coordination Center (rcc). The Annex to the “sar Convention” defines search and rescue region as, “An area of defined dimensions associated with a rescue co-​ordination centre within which search and rescue services are provided.” (paragraph 1.3.8). iamsar Manual, Volume 1: 6–​7.

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Additionally, the iamsar Manual explains the scope of the challenge sar Coordinators have in planning and responding to a maritime mro.11 Key considerations include: 1. mro s are a low-​probability, high-​consequence event that might result in a large-​scale loss of life or serious injury to a large number of people. If a maritime disaster and subsequent mro has not occurred in several years, then this type of event can become marginalized in planning. mro response processes and procedures may take a back seat to other types of events that may occur more often. The consequence to lowering the priority of mro response planning could be disastrous when such an event does occur and sar authorities are unable to mount an effective response, possibly increasing the number of lives lost. 2. Capabilities normally available to the sar Mission Coordinator (smc) may be inadequate in a maritime mro scenario. In many off-​shore sar operations, merchant ships can be diverted to assist vessels in distress. While these operations are extremely difficult when only a small number of persons may be in distress, the rescue of many persons in distress can be an overwhelming and a nearly impossible challenge for one, or even several merchant ships. 3. Success often depends on immediate, well planned, and closely coordinated large-​scale actions, utilizing the use of resources from multiple volunteers and organizations; both national and international. Depending on the type of distress, location, and other on scene factors, sar authorities may have to rely on other sar resources, such as Automated Mutual Assistance Vessel Rescue System (amver) to assist persons in an mro response.12 These varying resources will be critical in the overall response to an offshore mro. As such, sar authorities must continue to work together, as well as with other sar and industry stakeholders and volunteers in planning for and preparing to respond to an mro. 11 The iamsar Manual defines search and rescue coordinator (SC) as, “One or more persons or agencies within an Administration with overall responsibility for establishing and providing sar services and ensuring that planning for those services is properly coordinated.” For example, as the U.S. National Search and Rescue Plan (2016) assigns the U.S. Coast Guard as the SC for the U.S. aeronautical and maritime srr s in the oceanic environment. 12 Established in 1958 by the U.S. Coast Guard, amver (Automated Mutual Assistance Vessel Rescue System; www.amver.com) is a computer-​based voluntary global ship reporting system used by sar authorities worldwide to arrange for assistance to persons in distress at sea. There are thousands of vessels enrolled in amver, representing over 150 countries. On any given day there are over 7,800 vessels available to divert and assist in a distress situation. In 2017, amver contributed to the rescue of 153 persons in distress worldwide.

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4. 5.

3

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A maritime mro may require activation of other missions in addition to sar (e.g., environmental response, law enforcement, maritime security, etc.). A maritime mro will generate intense media interest and scrutiny by the public. Information should be provided to the media and public with minimal delay.13 Maritime mro s in Context

To properly plan and respond to a maritime mro, the uniqueness of this type of event must be appreciated. The following two principles provide the argument for why it is important to understand the risk, in order to prepare and then effectively respond to such a maritime disaster and subsequent mro. 3.1 Titanic Effect In 1974, author Kenneth E. F. Watt wrote, The Titanic Effect: Planning for the Unthinkable, which describes possible future economic and energy consumption challenges. Relevant to mro planning and response preparedness is the “Titanic effect” principle: History abounds with parallels of imminent disaster. Public warnings have been ignored when they were outside the range of past experience. Consequently, the appropriate countermeasures were not taken. The Titanic and other “unsinkable” ships that nevertheless went down; the cities built on flood plains; Pearl Harbor and other military “surprises”; hospitals and schools destroyed with great loss of life after repeated warnings of what fire or earthquake might do; these are some examples. There appears to be a basic human tendency to ignore warnings about such possible enormous disasters as “unthinkable.” We must understand this tendency and guard against it. … Yet if we examine history, an important generalization, which might be called the “Titanic effect,” can be discerned:  THE MAGNITUDE OF DISASTERS DECREASES TO THE 13

A good example of poor crisis communications occurred during the March 8, 2014 disappearance of Malaysia Airlines MH370, Boeing 777-​200 passenger aircraft with 239 passengers and crew. An analysis of Malaysian Airline and Malaysian Government’s poor crisis communications can be found in: Zoe Mintz, “A Disastrous Void: Why the MH370 Public Response Failed,” International Business Times (June 16, 2014). Available at: https://​ www.ibtimes.com/​disastrous-​void-​why-​mh370-​public-​response-​failed-​1598774.

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EXTENT THAT PEOPLE BELIEVE THAT THEY ARE POSSIBLE, AND PLAN TO PREVENT THEM, OR TO MINIMIZE THEIR EFFECTS.14 Understanding the Titanic Effect principle is foundational for maritime disaster prevention and mro planning and response. Despite regulatory, safety, training, and shipboard design improvements, the primary premise is that a maritime disaster will occur again, and sar authorities must be prepared to coordinate as well as respond to a subsequent mro. Even though the maritime community will never be able to eliminate all risk of future maritime disasters, imo, icao, sar authorities, and various industry stakeholders will continue to work towards improving safety and preventing these disasters from occurring; mitigating potential ways that disasters can occur is the essence of the Titanic Effect. However, despite these efforts to prevent maritime disasters, sar authorities need to continue to plan and respond to future maritime mro  s. Even though disasters may be occurring less frequently, or with less extreme impact than the sinking of rms Titanic or other large passenger ship or aircraft disasters, the risk is still present.15 sar authorities cannot be lulled into a false sense of security, succumbing to a less than adequate maritime mro response preparedness posture. Additionally, the Titanic Effect provides an important recommendation in preparing for the response to disasters in general, and for this analysis, a maritime mro in particular: In general, it is worth taking action in advance to deal with disasters. The reason is that the costs of doing so are so typically inconsequential as measured against the losses that would ensue if no such action were taken.16 When considering a coastal State’s risk and subsequent impact if a maritime disaster and mro occurs, and the responsible sar authority is unprepared or ineffective in conducting the rescue, advance planning and recurring response preparedness activities continue to be critical. Regardless of how or where a maritime disaster occurs (i.e., aircraft ditching, fire, collision, grounding,

14

Kenneth E. F. Watt, The Titanic Effect: Planning for the Unthinkable (New York: E. P. Dutton & Co., Inc., 1974): 7. 15 On April 15, 1912, on its maiden voyage, the 883-​foot RMS Titanic struck an iceberg and sank. A good overview of the Titanic disaster: History.com Editors, “Titanic sinks” (A&E Television Networks: March 4, 2010). Available at: https://​www.history.com/​this-​day-​in-​ history/​titanic-​sinks. 16 Ibid., 7.

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terrorist attack, etc.), its effect can be minimized through identifying potential mro scenarios, planning, training, development of cooperative relationships with other sar authorities and industry stakeholders, and conducting exercises to validate mro plans and procedures. 3.2 Black Swan In 2007, more than three decades after the publication of The Titanic Effect, author Nassim Taleb wrote the New York Times best seller, The Black Swan: The Impact of the Highly Improbable.17 Black Swan was extremely important in arguing that history generally moves forward, not in a gradual incline, but in singular events that are outside the expected—​unpredictable events with massive impact that make history. These unpredictable events, known as “Black Swans,” are unforeseen and point to the limits of human knowledge: Before the discovery of Australia, people in the Old World were convinced that all swans were white, an unassailable belief as it seemed completely confirmed by empirical evidence. The sighting of the first black swan might have been an interesting surprise for a few ornithologists (and others extremely concerned with the coloring of birds), but that is not where the significance of the story lies. It illustrates a severe limitation to our learning from observations or experience and the fragility of our knowledge. One single observation can invalidate a general statement derived from millennia of confirmatory sightings of millions of white swans. All you need is a single … black bird.18 Maritime disasters and the subsequent mro are examples of Black Swan events. Important for sar authorities are the three criteria that define a Black Swan event and the rationale for the planning and conduct of mro response preparedness activities: #1 Black Swans Are Outlier Events. In statistical probability, an outlier is a data point that significantly deviates from the rest of the data;19 a rare event that “lies outside the realm of regular 17

Nassim Nicholas Taleb, The Black Swan:  The Impact of the Highly Improbable, 2nd Ed. (New York: Random House Trade Paperbacks, 2010). 18 Ibid., xxii. 19 Frank. E.  Grubbs, “Procedures for Detecting Outlying Observations in Samples,” Technometrics Vol. 11, No. 1 (February, 1969):  1; available at

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expectations.”20 Maritime disasters that result in an mro can be statistically considered outlier events: low-​probability, high-​consequence disasters. However, even with the work accomplished in developing new international and national safety regulations, along with shipboard safety system improvements, infrequent maritime disasters will continue to occur. The challenge for sar authorities is when risk has been identified, but no maritime disaster and subsequent mro has occurred over a prolonged period. Complacency can and most likely will ensue. As a result, planning and response preparedness activities have a tendency to be replaced for what is considered “other” higher priority missions and objectives. Effectively planning the response to maritime mro s, even though considered an outlier (low probability) event, is critical. The consequences of a responsible sar authority being unprepared are exacerbated by a lack of preparation and planning. Preparation and planning, in particular for mro s that may occur offshore, must be a priority in any maritime mro risk analysis. #2 Black Swans Will Have a Major Impact. Historically, maritime disasters that include a significant loss of life have been the incentive for changing both national and international maritime regulations. The table below details maritime disasters and the response to improve safety after the disaster occurred. However, as previously mentioned, while new shipbuilding standards and safety regulations are important, they will never completely ensure maritime disasters will never occur again. Analyzing historical trends does help to isolate where new regulations and requirements can target specific safety gaps, but this will not assist in predicting when the next maritime disaster will occur. #3 Black Swan Events Become Explainable and Predictable after the Fact. Analysis of any disaster will provide conclusions and implementation of new safety regulations, development of new, mandated safety equipment, improved design and construction, etc. All these efforts are beneficial. However, even as attempts are made to understand how an accident occurred, and what

20

http://​www.lithoguru.com/​scientist/​statistics/​Procedures%20for%20Detecting%20 Outlying%20Observations%20in%20Samples_​Grubbs_​1969.pdf. Nassim Nicholas Taleb, The Black Swan: The Impact of the Highly Improbable, 2nd Edition (New York: Random House Trade Paperbacks, 2010): xxii.

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Maritime Disasters and Impacta,b Date

Disaster

Outcome

15 APR 12 Titanic: Ocean liner 1914: International Convention for the sunk after striking an Safety of Life at Sea (solas Convention) iceberg was established. Required ships to carry enough lifeboats for all persons onboard. 29 MAY Empress of Disaster led to widespread changes to the 14 Ireland: Struck design of ships bows (“raked” bows) to another vessel and reduce the amount of damage caused in sank; 1,012 people the event of a collision. died 08 SEP 34 Morro Castle: Fire 1936: Merchant Marine Act became resulted in the death U.S. law. of 137 people 1942: U.S. Merchant Marine Academy was established. 06 MAR Herald of Free Led to development of solas 87 Enterprise: Capsized amendments regarding ships transporting with 193 deaths passengers and vehicles; accelerated the adoption of provisions aimed at further improving passenger ship stability. 28 SEP 94 Estonia: Capsized 1997: Passenger ships carrying 400 with 852 deaths persons or more had to comply with the requirements initially only imposed on ferries to avoid capsizing even when the main compartments flood. 23 MAR Star Princess: Fire 2010: New solas regulations introduced 06 damage 150 cabins to prohibit the use of combustible with 1 death and 13 materials in new cruise ships. injured a  “Cruise ship safety: timeline of disasters and safety regulations,” Telegraph (January 16, 2012); available at http://​www.telegraph.co.uk/​travel/​cruises/​9017985/​Cruise-​ship-​safety-​timeline-​ of-​disasters-​and-​safety-​regulations.html b  Robin des Bois, “From the Titanic to the Costa Concordia,” (April 12, 2012); available at http://​ www.robindesbois.org/​en/​du-​titanic-​au-​costa-​concordia/​

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can be done to prevent disasters in the future, disasters will continue to occur because of human error: Over the last 40 years or so, the shipping industry has focused on improving ship structure and the reliability of ship systems in order to reduce casualties and increase efficiency and productivity. We’ve seen improvements in hull design, stability systems, propulsion systems, and navigational equipment. Today’s ship systems are technologically advanced and highly reliable. Yet the maritime casualty rate is still high. Why? Why is it, with all these improvements, we have not significantly reduced the risk of accidents? It is because ship structure and system reliability are a relatively small part of the safety equation. The maritime system is a people system, and human errors figure prominently in casualty situations. About 75–​96% of maritime casualties are caused, at least in part, by some form of human error.21 Passenger ships and aircraft are “people operated and maintained” transportation systems. As long as people continue to be an integral component of complex ship and aircraft systems, errors will occur that can lead to future maritime disasters requiring an mro response. This is the essence of a Black Swan event: 1) outlier; 2) significant impact; 3) explainable after the fact. This is the challenge for sar authorities in taking the time and effort to plan and prepare for maritime disasters and mro s. 3.3 Summary The Titanic Effect principle and Black Swan criterion provide sar authorities with the foundation for mro response preparedness: 1) The Titanic Effect: Expect a maritime disaster and subsequent mro to occur and plan for the event to minimize its impact; and 2) The Black Swan criterion provides a framework for understanding the mro challenge and while infrequent, they are a high consequence incident that can have a significant societal impact. Both principles provide sar authorities with the basis for understanding why mro planning and conducting mro response preparedness activities are so important. While the potential for these disasters is low, the consequences if the planning and subsequent response are ineffective are enormous.

21

Anita M. Rothblum, “Human Error and Marine Safety;” available at http://​www.bowles-​ langley.com/​wp-​content/​files_​mf/​humanerrorandmarinesafety26.pdf.

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Framing the mro Challenge

sar authorities must be prepared to respond to a maritime disaster and subsequent mro offshore, considered the worst-​case scenario because an mro will most likely overwhelm available sar services. In this scenario there could be many survivors in the water, or in survival craft requiring rescue and delivery to a place of safety.22 The following assumptions should be considered by sar authorities concerning maritime mro s: 1. Based on the risk, sar authorities should plan and conduct response preparedness activities to effectively respond to a maritime mro requiring the rescue of many survivors;23 2. An mro that occurs potentially hundreds of miles offshore will severely limit the number of sar facilities available to respond in a large-​scale rescue operation;24 3. It is not likely that a sar authority will independently have the necessary sar facilities to rescue possibly hundreds or thousands of survivors that may be in the water or survival craft and must rely on assistance from other available sar facilities from other sar authorities, commercial shipping and other volunteers in the vicinity; 4. Multiple survivors with life threatening injuries may require immediate medical attention or transportation to medical facilities; and 5. mro survivor retrieval to any height above water is extremely difficult.25 22 The iamsar Manual defines a Place of safety as, “A location where rescue operations are considered to terminate; where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met; and, a place from which transportation arrangements can be made for the survivors’ next or final destination. A place of safety may be on land, or it may be aboard a rescue unit or other suitable vessel or facility at sea that can serve as a place of safety until the survivors are disembarked to their next destination.” 23 Ultimately, the reason an mro occurs is of secondary importance. The critical issue is that sar authorities must identify the potential risk and develop plans and procedures to coordinate and conduct the rescue of a large number of survivors. 24 In in reviewing several mro plans, the authors have seen a bias towards planning for a large-​scale mro occurring near shore only, not offshore, the worst-​case scenario. In many plans, it is assumed that other local emergency response stakeholders (e.g., Federal, State and local emergency response agencies, commercial stake holders, etc.) will be available to assist in the mro response. Offshore, this will most likely not be the case. Other emergency response stakeholders may be able to assist once the survivors arrive on shore (e.g., assisting in triage of survivors requiring medical treatment), but they will most likely will not be able to transit offshore to assist in an mro response. 25 U.S. Coast Guard Research and Development Center, Maritime Mass Rescue Interventions; Availability and Associated Technology -​Final Report (December, 2010): 11.

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Quantifying mro Risk

The U.S. Coast Guard and other international sar authorities, local communities, and industry stakeholders face different maritime mro challenges based on passenger ferry, ship and aircraft traffic, environmental considerations, distance the event occurs from shore, etc., as well as sar facilities available to assist in an mro response. To appreciate the mro risk in the U.S. maritime sar regions, the U.S. Coast Guard Research and Development Center (rdc) was tasked in 2006 to identify potential gaps in mro planning. As a result of this effort, in 2007, the rdc completed the Mass Rescue Operations Scoping Study (mross).26 The mross included a historical review of past mro incidents and provided data on the frequency and consequences of these incidents, as well as on the effectiveness of U.S. Coast Guard response efforts. The mross concluded in part that: [T]‌he mro scenarios of greatest interest to the uscg are those that involve vessels carrying a large number of passengers. In these scenarios, the condition of the vessel, the distance from shore, and the severity of the environment are key factors in determining the level of difficulty of the response. Primary areas of concern are: adequacy of evacuation equipment and procedures aboard the distressed vessel (especially a non-​solas passenger vessel subject to less-​stringent regulations); ability to provide survival platforms when the survival capability aboard the vessel is compromised; ability to retrieve a large number of people from the water; and ability to evacuate a large number of people from the vessel.27 The mross recommended development of equipment or techniques to effect rapid evacuation and rescue of multiple survivors. In 2012, the U.S. Coast Guard conducted a review of the 2007 mross. An informal risk assessment analyzing the same scenarios from the 2007 mross was conducted to draw a comparison and examine the mro response preparedness risk and to see if any changes had occurred. 26

U.S. Coast Guard Research and Development Center, Mass Rescue Operations Scoping Study, Final Report (April, 2007). The study identified concepts and technologies that would lead to improvements in mass-​rescue operations. This research effort included a review of past successes (and failures), current plans, programs (including interagency agreements) and equipment, assessment of risks and plans for consequence management, and identification of new ideas, techniques, equipment and methods that might help to improve the U.S. Coast Guard’s ability to respond to mass-​rescue events. 27 Ibid., v.

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After five years, the 2012 analysis revealed that the greatest concern and the number one risk posed to the U.S. Coast Guard and shipping industry stakeholders remained the same as identified in the 2007 mross: a domestic passenger vessel requires evacuation. In all likelihood, this was due to the three major reasons cited in the original study: 1) a limited number of crewmembers trained in vessel evacuation; 2) limited evacuation information provided to passengers; and 3) less-​stringent requirements for safety equipment aboard U.S. domestic passenger vessels and those vessels not required to comply with the Safety of Life at Sea (solas) Convention.28 The following table shows the mross 2007/​2012 resulting risk-​based ranking of mro scenarios. Mass Rescue Operations Scoping Study (2007/​2012) Scenario Domestic passenger vessel requires evacuation Large vessel sinks, persons on board must be located and rescued Natural disaster requiring air, land, sea rescue Major casualty aboard cruise ship requires evacuation Rescue of large number of refugees/​illegal immigrants Passenger aircraft crash requiring passenger rescue Rescue of people from collapsed or burning waterfront building

28

mross 2007

mross 2012

1 1

1 4

3 4

2 6

4

7

6

5

7

10

Concerning the solas convention, the imo website states that, “The SOLAS Convention in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth in 1960. The 1974 version includes the tacit acceptance procedure—​which provides that an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from an agreed number of Parties. As a result the 1974 Convention has been updated and amended on numerous occasions. The Convention in force today is sometimes referred to as SOLAS 1974, as amended.” Available at:  http://​www.imo.org/​en/​About/​ Conventions/​ListOfConventions/​Pages/​International-​Convention-​for-​the-​Safety-​of-​Life-​ at-​Sea-​(SOLAS),-​1974.aspx.

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Mass Rescue Operations Scoping Study (2007/​2012) Rescue of individuals from bridge collapse or train derailment Small mro (above local sar authority capability to respond) Oil rig sinks; crew must be located and rescued Waterborne evacuation due to large-​scale terrorist action, industrial accident, natural disaster, or nuclear/​biological incident Rescue of individuals stranded on an ice floe or ship beset in ice Rescue of large number of people from flooded (or flooding) tunnel or other need for rescue

8

11

8

2

10 11

12 9

12

13

13

7

By comparing the 2007 and 2012 mross information, the following observations are made: 1) The three scenarios: a) “Passenger aircraft crash requiring passenger rescue;” b) “Major casualty aboard cruise ship requires evacuation;” and c) “Large vessel sinks, persons on board must be located and rescued,” remained in the top six U.S. Coast Guard mro risks, remaining consistent both in 2007 and in 2012; 2) In 2007 the two mro scenarios: a) “Large vessel sinks, persons on board must be located and rescued;” and b) “Domestic passenger vessel requires evacuation,” were both considered #1 (tied), and in 2012 were ranked #4. While still considered the fourth most important mro challenge, it is the least understood and planned for, especially in an offshore situation with limited U.S. Coast Guard sar facilities available to assist in the rescue operation.29 What the 2007 mross and 2012 review did not specifically consider, is the distance offshore any of these events could occur. Regardless of the type of mro, the farther offshore from available sar facilities the incident occurs and 29

For the U.S. Coast Guard, the mro scenario concerning the sinking and rescue of persons from a large vessel again occurred on October 1, 2015, during Hurricane Joaquin, when the U.S.-​flagged cargo ship SS El Faro sank in the Atlantic Ocean about 40 nm northeast of Acklins and Crooked Island, Bahamas. All 33 people on board perished. Before the loss of El Faro, the last comparable U.S. maritime disaster was the sinking of the U.S. bulk carrier Marine Electric off the coast of Virginia in February 1983, in which all but three of the 34 persons aboard lost their lives. National Transportation Safety Board Accident Report, Sinking of US Cargo Vessel SS El Faro Atlantic Ocean, Northeast of Acklins and Crooked Island, Bahamas October 1, 2015 (December 12, 2017). Report is available at:  https://​ www.ntsb.gov/​investigations/​AccidentReports/​Reports/​MAR1701.pdf.

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the more adverse the environmental conditions (i.e., sea water temperature, sea state, wind, etc.), the greater the challenge sar authorities will have in coordinating and conducting an mro response. The authors conclude that the mro risk in 2018 is comparable to the analyses conducted in 2007 and 2012. Identifying mro risk, developing comprehensive and effective mro plans, and exercising plans remain important considerations in U.S. Coast Guard mro response preparedness. 6

The Importance of mro Plans

In responding to any mro event, there will be some level of chaos. The goal is to reduce that chaos; one way of doing so is by developing comprehensive and shared mro plans. Development of effective mro plans is critical during a mass rescue response because this type of event will be coordinated and conducted with multiple sar authorities, military and volunteer stakeholders. Those involved in coordinating the response and the responders will need to clearly understand who is in charge, how to work with who is in charge, the respective roles of all involved, and how to interact with each other. While sar authorities will be responsible for saving lives and property, there are numerous other facets of mro response that are outside the purview of sar authorities (i.e., survivor accountability, medical triage, security, environmental response, transportation, etc.). This is why it is crucial for sar authorities to work together with the emergency response community to collectively develop and “own” a shared mro plan. Such a plan identifies agencies responsible for specific tasks and provides a holistic approach to an mro response. Though the sar Coordinator would most likely lead the planning process, response and support organizations should be encouraged to regard the plan as incorporating their agency-​specific plan. The mro planning process can be thought of as a jigsaw puzzle. Each stakeholder has an important role in the response, with their own emergency response plans setting policy, as well as providing specific roles and responsibilities. Each mro plan represents a piece of the larger mro response. mro plans should include: 1) identification of roles and responsibilities during the response; 2) identification of risk or hazards that may be encountered during the response; 3) any potential resource gaps; and 4) no overlap, or redundancy in authority (“who’s in charge” which must be addressed before an incident occurs). In many mro s, the problem is the sar authorities and responders merely react to an incident without having developed comprehensive plans, potentially creating a disjointed and confusing response as responders try to “do the right

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thing.” Without effective preplanning, an mro response may lack effective and efficient coordination, which may cause delays, and ultimately put lives at risk. sar authorities must proactively plan and prepare for the response to an mro. 7

The Fundamentals of mro planning

Generally, there are six stages in mro planning:  1) identify the stakeholders (authorities and organizations with emergency response roles and/​or responsibilities) who should be involved in the planning process; 2) identify response capability gaps; 3) identify the means to fill the capability gaps; 4) prepare the plan; 5) conduct training based on the plan; and 6) test the plan through exercises, revising the plan as required.30 mro plans should provide for the wide array of response requirements: medical triage, immigration, security, shelter, public affairs, transportation, etc., which may also be used in planning for other types of contingency operations that may have a similar response. It is important to understand that mro plans are living, breathing documents that need to be reviewed and updated (as people and resources change), and as such, they require testing on a regular basis to validate any recent changes in personnel and available capabilities. In the event of an mro, no single organization is fully equipped to mount an effective response. The success of an mro depends on effective coordination between sar authorities, industry stakeholders, volunteers, and the local community, which is contingent upon having current mro plans, validated through a recurring exercise program. mro planning does have challenges. One of the biggest is bringing together the various sar authorities, as well as other nongovernmental organizations, volunteer organizations and industry stakeholders to discuss mro plan development. This could pose a change management dilemma: many response agencies and organizations may only follow their own specific mro guidance and might be reluctant to make any changes to support a multi-​agency response. Therefore, engagement from senior leadership early in the planning process is critical. Senior leadership needs to support the planning and exercise process in order to instill “buy-​in” and articulate the

30 International Maritime Rescue Federation, 2.1 General Planning Guidance. Available at: https://​www.imrfmro.org/​mro-​library-​planning-​download/​file/​930-​ 2-​1-​general-​planning-​guidance.

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vision, purpose, and goal of an effective mro response able to save as many lives as possible.31 8

mro Response Considerations

From a response preparedness perspective, the distance from available sar facilities must be considered one of the most critical, in addition to the number of persons in distress, environmental considerations and other factors that need to be considered in mro planning and response preparedness. While this analysis’ emphasis is on the challenges in responding to an “offshore” maritime disaster and mro, the Territorial Sea limit can be an effective demarcation in determining and planning for what could be considered near and offshore mro s.32 Within 12 miles of shore, additional sar facilities from other sar authorities, commercial shipping, and volunteers can assist in an mro response, especially if the incident occurs in well traveled sea lanes, traffic separation schemes, or in the vicinity of a major port. Depending on the location of the incident and the time required for sar facilities to arrive on scene, the loss of life in a near-​shore mro can be minimized. While weather and sea state will also be critical factors, how close to shore a maritime disaster occurs is a critical factor in a successful multi-​agency response with multiple sar organizations, volunteers and industry partners.33, 34 The mro involving the cruise ship Costa Concordia is an example of a near-​ shore mro that occurred in near ideal environmental conditions.35 Although 31

mro planning goes beyond standard sar practices and delves into basic organizational management. Understanding the basic concepts of change management will greatly enhance the mro planning process. 32 The United Nations Convention on the Law of the Sea defines Territorial Sea: “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” (Article 3). 33 In the U.S. Coast Guard Seventeenth District, Mass Rescue Exercise Lessons Learned Report ( January, 2007), a major lesson learned was that in general, local response agencies have limited mass rescue response experience during poor weather conditions. This is another planning factor that must be considered. 34 While the U.S. Coast Guard has an emphasis on the response to passenger ship and ferry mro s, passenger aircraft carrying potentially hundreds of passengers on daily transoceanic flights must also be considered in mro planning. 35 Marine Casualties Investigative Body, Cruise Ship COSTA CONCORDIA Marine Casualty on January 13, 2012, Report of the Safety Technical Investigation, Available at: file://​/​N:/​ CG-​SAR%20Program/​Articles/​MRO%20Article%20(2018)/​Costa%20Concordia%20

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the grounding occurred at approximately 9:45 PM, most of the 4,252 passengers and crew on board were able to abandon ship in survival craft or were rescued by the Italian Coast Guard and other responding vessels. Survivors in the water were able to swim ashore. While the Costa Concordia disaster did tragically end with the loss of lives, the outcome could have been much worse if the ship were abandoned offshore, with thousands of survivors potentially in the water or in survival craft requiring rescue.36 If a maritime disaster and mro occurred farther offshore beyond the territorial sea, sar facilities that could have assisted in a near shore mro might be unavailable, or incapable to assist in an offshore response. Add any inclement weather and sea state challenges to an incident and the number of available sar resources, again as in the case of a near-​shore mro, shrinks considerably. Any vessels that can assist in the response, whether sar, military, commercial or recreational vessels, will be critical in saving lives in both near and offshore mro  s.

36

Final%20Report.pdf. Synopsis: On January 13th, 2012, the cruise ship, Costa Concordia, struck a rock in the Tyrrhenian Sea near the eastern shore of Isola del Giglio, off the west coast of Italy. A 164-​foot gash was torn into the port side hull, which flooded parts of the engine room and caused loss of power to propulsion and electrical systems. With water flooding in and listing, the ship drifted back to Isola del Giglio, where she grounded, lying on her starboard (right) side in shallow water with most of her starboard side under water. The evacuation of Costa Concordia, with 4,252 passengers and crew known to have been aboard, took over six hours to complete. Even with these near ideal environmental conditions (i.e., near calm seas, near shore (the ship grounded), etc.), 32 people perished. Another example is the August 17, 2016, engine room fire and subsequent, successful evacuation of all 511 passengers and crew from the 614-​foot roll-​on/​roll-​off (Ro/​Ro) passenger vessel Caribbean Fantasy, near the port of San Juan, Puerto Rico. During the ntsb accident investigation, two important factors were identified:  “First, at the time of the accident, the Caribbean Fantasy was in close proximity to the entrance of the port of San Juan. Coast Guard Sector San Juan and subordinate Coast Guard commands such as the small boat station and the cutter Joseph Tezanos were located either in the port or nearby. Many of the other organizations that responded to the vessel’s call for assistance, including CBP, PREMA, and the City of San Juan’s EOC, EMS, police, and fire department, were also located in the area and had sufficient staffing and response assets available. Additionally, many of the good Samaritan and commercial vessels that assisted were either based in the port or operating just offshore. … Second, the development, design, and functional exercises of the various elements of Coast Guard Sector San Juan’s MRO plan, led by the unit’s PVSS [Passenger Vessel Safety Specialist] and other command personnel, proved significant to the outcome. The written plan addressed all aspects of a response to a large-​scale incident by multiple agencies. Just as important, the Coast Guard personnel responsible for managing the plan performed frequent training exercises, above and beyond agency requirements, to educate and better prepare other federal, state, and local response organizations, as well as local maritime stakeholders, for an actual event.” ntsb, Fire aboard Roll-​on/​Roll-​off Passenger Vessel Caribbean Fantasy Atlantic Ocean, 2 Miles Northwest of San Juan, Puerto Rico, August 17, 2016, NTSB/​MAR-​18/​01 (June 5, 2018): 65. Available at: https://​www.ntsb.gov/​investigations/​AccidentReports/​Reports/​MAR1801.pdf.

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Aeronautical sar facilities, both fixed and rotary wing, will be critical in any near shore or offshore mro response. Helicopters have greater speed but have different weather constraints as compared with surface sar facilities.37 Though an excellent response resource, helicopters are limited by the duration they can remain on scene and by the number of survivors they can rescue. In an offshore mro, with potentially hundreds or thousands of survivors, relying on helicopters as the primary means of rescue will significantly extend the duration of the response and could potentially increase the number of fatalities.38 Fixed wing sar facilities will also be critical in an offshore mro response. Fixed wing aircraft, while not being able to rescue survivors, can assist as On Scene Coordinators (osc), can deploy rafts and can coordinate on scene communications.39 9

Passenger Ships and Aircraft Evacuating thousands of passengers at sea is everybody’s worst nightmare. Maybe we need to rethink our approaches to evacuation.

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Aircraft and vessels have different weather limitations that affect their ability to be deployed and support the response to an mro. A clear day with steady high winds may not limit a helicopter response. However, waves produced by high winds may prohibit a vessel from responding. Conversely, a calm day with no wind but with relative humidity nearing 100% forming fog, may limit aircraft from flying, but are conditions in which vessels can operate. How far a helicopter can transit offshore is based on several factors (e.g., on scene weather, water temperature, etc.) and whether it is carrying a rescue swimmer and hoist basket. These factors will reduce the helicopter’s range, on scene endurance and number of survivors that can be rescued. IAMSAR Manual, Volume 1, defines On Scene Coordinator (OSC) as, “A person designated to coordinate search and rescue operations within a specified area.” IAMSAR Manual, Volume 2 (Mission Coordination), goes on to further describe the osc position: “When two or more SAR units are working together on the same mission, there is sometimes an advantage if one person is assigned to coordinate the activities of all participating units. The SMC [SAR Mission Coordinator] designates this on-​scene coordinator (OSC), who may be the person in charge of a search and rescue unit (SRU), ship or aircraft participating in a search, or someone at another nearby facility in a position to handle OSC duties. The person in charge of the first SAR facility to arrive at the scene will normally assume the function of OSC until the SMC directs that the person be relieved. The OSC may have to assume SMC duties and actually plan the search and/​or rescue if the OSC becomes aware of a distress situation directly and communications cannot be established with an RCC. The OSC should be the most capable person available, taking into consideration SAR training, communications capabilities, and the length of time that the unit the OSC is aboard can stay in the search area. Frequent changes in the OSC should be avoided.” (paragraph 1.2.4).

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Will we ever reach a point at which passenger safety is no longer facilitated by having more lifeboats lining longer rails ever higher above the waterline? Are better lifeboats and stronger davits really the answer? How else could people be evacuated? I can tell you right now that the Coast Guard doesn’t have the platforms to do the job, but we do have to figure something out.40 While the passenger ship industry is extremely safe, with millions of passengers taking cruises every year, the implications for sar authorities if a passenger ship must be abandoned at sea are enormous.41 mro planning must consider the continued increase in the size of large passenger ships, the number of persons requiring rescue, the potential location where a disaster may occur, and other international, national, regional, shipping industry, and volunteer partners that may assist in the mro response. While it is true that in most cases a “passenger ship is its own best lifeboat,”42 there will be disasters in which large numbers of survivors must be rescued.43 The greater challenge is to rescue people forced to immediately abandon ship into the water or to cling to floating wreckage. These survivors are less able to help themselves than if they were able to abandon ship in a survival craft.44 Comparable to the passenger ship industry, the passenger airline industry also continues to see growth.45 With this growth is the continued increase in the size of passenger aircraft.46 Even with the large number of passenger 40 41

42 43 44 45 46

Admiral James M.  Loy, Commandant, U.S. Coast Guard, Excerpt from speech given at SeaTrade Cruise Ship Conference, Miami, Florida (March 6, 2001). Cruise Lines International Association (clia), the world’s largest cruise industry trade association with over 50 cruise ship companies, routinely analyzes the health of the cruise industry. In their Cruise Line Industry Outlook (June 2018), the number of passengers taking cruises worldwide continues to increase. In 2009, 17.8 million people took cruises; in 2018, that number will increase to 28 million. In 2017, clia member companies maintained a total of 449 cruise ships, with 27 new ocean, river and specialty cruise ships scheduled to debut in 2018. Available at: http://​cruising.org/​docs/​default-​source/​ research/​clia-​2018-​state-​of-​the-​industry.pdf?sfvrsn=2. This statement implies that abandoning ship should be avoided if possible. However, in some circumstances there may be no other option. Unless a ship appears to be in imminent danger of sinking, it is usually advisable for passengers and crew to remain on board if it is safe to do so. Guide to Recovery Techniques MSC.1/​Circ.1183/​Rev. 1 (November 21, 2014): Annex, 2. icao estimates that in 1970, worldwide 3.1 million people flew on passenger aircraft. In 2017:  3.979 billion people flew on passenger aircraft (statistic available at:  https://​ data.worldbank.org/​indicator/​IS.AIR.PSGR). Today, the largest passenger aircraft in service is the double-​deck Airbus A380, which can carry over 800 passengers with a flying range of 9,756 miles.

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aircraft in use every day worldwide, the industry is considered the safest form of transportation.47 Because air travel is so safe and fatal accidents are rare, when an incident does occur it is often highly publicized, which heightens the unwarranted perception of danger. From a sar/​m ro perspective, the challenge for sar authorities is responding to an aircraft disaster in the maritime environment. For many, it is automatically assumed that if a passenger aircraft ditches at sea, there will be no survivors.48 However, this may not be the case. sar authorities must assume there are perhaps hundreds of survivors that must be rescued. 9.1 Aircraft mro Challenge: Ditching of U.S. Airways Flight 154949 On January 15, 2009, U.S. Airways Flight 1549, an Airbus A320-​214 on a scheduled commercial flight from LaGuardia Airport, New York City, New York, to Charlotte-​Douglas International Airport in Charlotte, North Carolina, experienced an almost complete loss of thrust in both engines after encountering a flock of birds. When the aircraft crew determined they would be unable to reliably reach any airfield, they turned southbound and glided over the Hudson River, finally ditching the aircraft near the uss Intrepid museum about three minutes after losing power. At approximately 3:40 p.m., the controller was advised by a nearby helicopter pilot that the airplane was in the water. The U.S. 47

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For example, in the U.S., a person has a 1 in 114 chance of dying in a car crash. The odds of dying in air and space transport incidents, which include private flights and air taxis, are 1 in 9,821. (Statistic obtained from: Aric Jenkins, “Which Is Safer: Airplanes or Cars?” Fortune.com (July 20, 2017); available at: http://​fortune.com/​2017/​07/​20/​are-​airplanes-​ safer-​than-​cars/​. There is no official definition of ditching used by the U.S. National Transportation and Safety Board (ntsb) or Federal Aviation Administration (faa). However, for the purpose of this analysis, a good working definition of ditching is, “An event where the flight crew intentionally lands an aircraft in some body of water such as a lake, a river, or the open ocean. In addition, the event would have to meet the following conditions or criteria: 1) The water landing has to be intentional (Accidental or unintentional landings or excursions onto water are excluded, such as runway overruns or controlled flight into water); 2) Uncontrolled impacts with water are excluded; and 3) The body of water must be deep enough so that if the aircraft sinks, some or all of the occupants would have to evacuate the aircraft cabin to avoid drowning.” Todd Curtis, “Jet Airliner Ditching Events,” available at:  http://​ www.airsafe.com/​events/​ditch.htm. The information in this section concerning Flight 1549 was obtained from:  ntsb, Accident Report:  Loss of Thrust in Both Engines After Encountering a Flock of Birds and Subsequent Ditching on the Hudson River, US Airways Flight 1549, Airbus A320-​214, N106US, Weehawken, New Jersey, January 15, 2009 (NTSB/​AAR-​10-​03). Available at: file://​ /​N:/​CG-​SAR%20Program/​Articles/​MRO%20Article%20(2018)/​NTSB%20Report%20-​ %20Ditching%20of%20Flight%201549.pdf.

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Coast Guard, New York Police Department, and other sar authorities were immediately notified. All 155 passengers and crew safely evacuated the aircraft, which was still intact though partially submerged and slowly sinking. The survivors were quickly rescued by nearby passenger ferries and other vessels. Only two passengers and a flight attendant sustained serious injuries. Modern safety requirements for passenger aircraft continues to improve. Flight 1549 was equipped so that crewmember life vests were at every jump seat location, passenger life vests at every seat for passenger flotation and seat cushions could be used for auxiliary passenger flotation. In addition, Flight 1549 was equipped with two emergency locater transmitters (elt  s), four slide/​rafts located at each exit, four survival kits, and four lifelines. Within seconds after ditching, the crewmembers and passengers initiated the evacuation of the airplane. When Flight 1549 ditched on the Hudson River, it was close to shore, near the Port Imperial Ferry Terminal in Weehawken, New Jersey. Many passenger ferries were operating over established routes in the local waterway, and the ferry captains either witnessed the accident or were notified by the director of ferry operations. Seven ferries responded to the accident and recovered the occupants. The first ferry arrived on scene three minutes after Flight 1549 ditched; the six other ferries arrived on scene just a few minutes later. One nyfd fire rescue boat and two U.S. Coast Guard boats arrived on scene just a few minutes later. Because of the immediate response by vessels in the vicinity, all of Flight 1549’s passengers and crew were rescued within approximately 20 minutes of ditching. On that day the Hudson River water temperature was 41° F, with a wind chill of 2° F. Additionally, the aircraft lacked enough slide rafts due to water entering the aft fuselage. These on scene factors posed an immediate threat of hypothermia to the survivors. Although the airplane continued to float for some time after ditching, many of the passengers who evacuated onto the wings were exposed to water up to their waists within two minutes from the time of the ditching. The passengers who jumped or fell into the water were at the most risk and were fortunate that the ditching occurred near shore. If the rescue vessels had not been near the accident site, or if conditions or procedures caused additional survivors to enter the water, it is likely that some of the airplane occupants would have succumbed to cold shock or hypothermia-​ related swimming failure.50 50

An overview of the life-​threatening challenges of cold-​water immersion can be found at: Alan Steinman and Gordon Giesbrecht, “The Four States of Cold Water Immersion,” On Scene: The Journal of the U.S. Coast Guard Search and Rescue (Spring, 2006): 13; available at:  http://​dispatchingdiscussions.blogspot.com/​2014/​05/​the-​four-​stages-​of-​cold-​water-​ immersion.html.

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What if the Flight 1549 incident occurred, not on the Hudson River and near other ships and boats that were able to conduct an immediate mro operation, but 200 miles offshore? Most mro scenarios planned and exercised involve passenger aircraft that ditch during takeoff or landing in the vicinity of the airport. While a low probability, high consequence event, planning for a passenger aircraft mro offshore must be also be considered. sar authorities should consider the following:  1) Always initially assume there will be survivors that must be rescued; 2) Plan for passenger aircraft mro s both near and offshore; 3) Time is critical: cold water immersion is a life-​threatening consideration in any mro response; 4) Safety and survival equipment (e.g., rafts) on passenger aircraft may be unavailable or not operate due to the impact of ditching at sea; 5) While the position of most passenger ship disasters may be reasonably well known and would require minimal searching prior to the commencement of rescue operations, there may be no prior warning if a passenger aircraft ditches at sea, requiring a search for survivors; 6) Planning and response preparedness activities must be conducted with other international, national, regional sar authorities, industry stakeholders and volunteer organizations; and 7) mro plans must be exercised on a periodic basis.51 As is the case with any maritime mro, a passenger aircraft ditching offshore presents an incredibly difficult challenge for sar authorities. With limited available sar facilities, the response will likely take much more time. sar planners must consider both near-​shore and offshore scenarios in the unlikely event that a passenger aircraft must ditch in the maritime environment.

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In the United States, for near-​shore mro s involving passenger aircraft, airports must conduct mro exercises as a regular component of each airport’s emergency response plan. The faa requires all airports to conduct a full-​scale exercise every three years (FAA Advisory Circular 150/​5200-​31A). The Airport Emergency Plan provides the framework that enables airport and community fire, security, medical, and other resources to join in an effective, coordinated response to airport emergencies. The faa requires a full-​scale demonstration of the emergency plan every three years of those airports certificated under U.S. Code of Federal Regulations Title 14, Section § 139. In the U.S., many of these airport exercises include sar authorities such as the U.S. Coast Guard, which also has a requirement to conduct periodic mro exercises with their local response community and stakeholders (Coast Guard Mass Rescue Operations Program, COMDTINST 16711.2 (August 10, 2010)). U.S. Coast Guard mro exercises are based on a five-​year cycle. At a minimum, Coast Guard Districts are required to conduct and/​or participate in one discussion-​based (e.g. seminar, workshop, or tabletop exercise) and one operations-​based mro exercise (e.g. drills, functional, or full scale) over a five-​year period.

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10 The mro Challenge: Rescue at Sea52 Maritime disasters are not necessarily more numerous than disasters in other modes of transport, but they can be very large. Some of the largest transport disasters in the world, and in Europe, have been maritime disasters. One can easily think of reasons why maritime disasters can claim many lives. Commercial passenger ships are getting bigger. Large ferries and cruise ships may carry more than a thousand passengers and crewmembers. Disasters at sea can happen very quickly: if a ship capsizes in rough weather, it can go down within minutes, taking everybody with it to the sea bed. Rescue operations can be difficult at sea, particularly in rough weather. Those who jump into the sea will often die soon because of hypothermia. For all these reasons, the potential for great disasters at sea is always present.53 One of the most difficult and least thought through challenges that sar responders will encounter in any maritime disaster is the actual rescue of survivors. Merchant ships that divert to assist persons in distress face difficult challenges in rescuing just one person from a survival craft or from the water. If hundreds or thousands of people must be rescued, or if conditions on scene are less than ideal, the difficulties and risk will significantly increase. Even if the mro occurs within range of shore-​based sar facilities, sar responders on scene can become quickly overwhelmed.54 52

Unless otherwise stated, the information in this Section was obtained from: imo, Large Passenger Ship Safety:  Report of the Correspondence Workgroup, Sub-​Committee on Radiocommunications and Search and Rescue, First Report: COMSAR 7/​10/​1 (November 8, 2002), COMSAR 7/​INF.4 (November 8, 2002) and COMSAR 7/​INF.5 (November 8, 2002); and Second Report: COMSAR 8/​9 (December 18, 2003). The authors wish to thank Mr. David Jardine-​Smith, Correspondence Work Group Chair, and the other Work Group members for their invaluable insights into the challenges associated with responding to a large passenger ship mro. Another excellent resource is the IAMSAR Manual (Volume III): Mobile Facilities. It should be noted that this Section can apply for passenger aircraft as well as passenger ships. The issue is rescuing large numbers of survivors at sea. 53 Svenn Fjeld Olsen, “The Frequency of Maritime Disasters:  A Comparison with Other Modes of Transport;” paper presented at World Maritime University Malmö, Sweden, March 24–​25, 2004. 54 Retrieving mro survivors from the water and survival craft is not a linear relationship when considering the number of persons to be recovered. Rescuing 1,000 people is not simply a question of requiring ten times the sar unit capacity, or ten times the time as rescuing 100 people. It was the view of the imo Correspondence Work Group that developed

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An unfortunate example of this problem occurred during the response to the 1994 sinking of the passenger ferry Estonia: In 1994, the worst civilian ship disaster in modern European history occurred. Although there were 22 ships in the close proximity when the M/​ S Estonia sank, only 137 persons survived out of the approximately 1,000 persons on board. Ships that arrived at the scene were forced to improvise. They had neither the equipment nor the routines to participate effectively in such a rescue operation. Instead, in spite of all their efforts, they mostly became witnesses to the tragedy.55 The following considerations are provided to help sar authorities, sar facilities, merchant ships and shipping companies understand the challenges in conducting a maritime mro.56 10.1 sar facility considerations –​ When developing mro plans, sar authorities should not assume they have enough trained and available sar units to rescue hundreds or thousands of survivors;57 –​ sar facilities (e.g., merchant ships in the vicinity) that can divert to render assistance will be critical in any mro response and must be supported with sar aircraft and other available surface sar facilities; –​ sar authorities should anticipate that merchant ships on scene will encounter difficulties in rescuing potentially large numbers of survivors; –​ For any sar facility in other than perfect environmental conditions, it will be extremely difficult to rescue survivors in the water or from survival craft; the Large Passenger Ship Safety Report that the rate of increase in difficulty is, based on the number of persons to be recovered, more exponential than linear. Recovering five people can be difficult in some circumstances (e.g., bad weather, darkness, moderate to heavy seas, limited survival timeframe, high-​sided or otherwise limited rescue units, etc.). Recovering fifty, or five hundred, are step changes of difficulty. Recovering five thousand persons in an offshore mro could be insurmountable. 55 Captain Christer Lindvall, Captain Jörgen Lorén and Captain Rolf Westerström, “Give all ships the means to assist in major accidents at sea” (March 8, 2012); available at: http://​ www.first-​rescue.org/​assets/​international-​op-​ed-​on-​mass-​rescue-​by-​christer-​lindvall-​ j%C3%B6rgen-​loren-​rolf-​westerstr%C3%B6m-​2012-​06.pdf. 56 While the focus of this paper is on the challenges of an offshore mro, these considerations are relevant to any maritime mro. 57 The sar Convention defines sar unit as, “A unit composed of trained personnel and provided with equipment suitable for the expeditious conduct of search and rescue operations.” (paragraph 1.3.8).

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–​ On-​scene surface sar facilities will need to coordinate their operations closely during the mro response; –​ Use of helicopters in an mro: – While critical in any mro, sar helicopters are dependent on the disaster location and fuel usage;58, 59 – Surface sar facilities may not be experienced in working with helicopters and the associated downwash and noise they produce;60 – A helicopter hoist of a survivor takes time and is limited to the number of survivors it can rescue at one time;61 – An mro could easily over tax the capability of helicopters in both numbers and time required to rescue each survivor; and – Helicopter crew endurance limits or mandatory maintenance may be reached during a prolonged mro response; additional crews may be required, or maintenance may need to be performed during the response. –​ Each mro response is unique, requiring maritime and aeronautical sar facilities to accurately assess, coordinate and conduct the rescue operation: – Partially submerged vessels with cranes and rigging can challenge or limit the hoisting opportunities of helicopters; and 58

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There have been instances in which large passenger ships have been entirely evacuated by helicopter. For example, in the sinking of the passenger ship Oceanus off Eastern Cape, South Africa (August 04, 1991) all 571 persons on board were rescued by helicopters. Availability of sar helicopters and geographic location of the mro are critical. For example, U.S. Coast Guard helicopters are not equipped with an in-​flight refueling capability. Currently, the only such aircraft and helicopters with this specific design capability are in the U.S. Department of Defense (DoD) which may or may not be available due to time, mission requirements and rescue location. When landing on a ship is not an option, U.S. Coast Guard and U.S. Navy helicopters can utilize In-​Flight Refueling (hifr) from certified U.S. Navy and U.S. Coast Guard ships, which allows the helicopter to receive fuel through the cabin while hovering. However, the ship and helicopter will be removed from rescue operations while hifr is being conducted. Helicopter pilots must be cognizant of their aircraft affects when rescuing persons in distress at sea. An example of this challenge occurred during the December 28, 2014 fire and subsequent mro on the 610-​foot passenger ship Norman Atlantic, with 411 passengers and 58 crew, in the Strait of Otranto. While several merchant ships and sar units responded to the distress, the weather and sea conditions were extremely poor, making any rescues by sea extremely difficult. From 0531, December 28 when the master of Norman Atlantic ordered to abandon ship, helicopters were the primary means for rescuing passengers and crew. It was not until 1432, on December 29 that the master declared all passengers and crew rescued and he was subsequently hoisted from the ship. In this mro, helicopters rescued 349 survivors in 33 hours. (Note: Information concerning this footnote was obtained from a non-​published Norman Atlantic after action report provided to the authors by the Italian Coast Guard.)

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– Survival craft with canopies designed for rescue by vessels may be difficult to hoist from, adding further time delay in rescuing survivors by helicopter.62 –​ Cargo ships, fishing vessels and other craft that divert to assist as sar facilities are generally ill-​equipped to locate and retrieve large numbers of survivors from the water or survival craft and to care for the survivors once onboard; –​ Maneuvering a large ship in a seaway to come alongside, and then remain alongside a small target like a survival craft or a survivor in the water is difficult;63 –​ An assisting sar facility mooring alongside a large passenger ship in distress and offloading survivors in anything but near-​ideal circumstances is regarded as potentially dangerous and of questionable benefit; –​ Assisting merchant ships have unique challenges in an mro response due to their relatively small crew and little capability to manage large numbers of survivors: – A lack of covered public spaces that provide protection from weather; – A lack of sanitary facilities, blankets, clothing, food and water; – Insufficient personnel to control and assist survivors, and a lack of training on how to do so; and – A lack of medical staff and facilities. –​ Assisting ships will likely require substantial support both on board and ashore in handling communications during an mro response; –​ Difficulties with using shipboard recovery systems in recovering large numbers of survivors will be exacerbated if ships’ crews are insufficiently experienced and trained in using these systems; –​ Not all shipping companies have the capability to quickly stand up and sustain a 24-​hour emergency response center with substantial equipment, staffing, information management and communications capabilities, nor is such capability currently required;

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Survival craft are usually provided with canopies or other covers to protect their occupants. Unfortunately, these covers make getting people out of the survival craft difficult. When a helicopter is approaching a survival craft, the cover can cause extra windage that may cause the craft to be blown away or overturned by the helicopter’s downwash. If the cover is removed or removable, it may break free in the downwash, hampering hoisting and injuring the survival craft’s occupants. imo, Guide to Recovery Techniques MSC.1/​Circ.1183 (May 31, 2006): Annex, page 7. The issue: running over and/​or crushing the survival craft/​survivor.

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–​ If the osc is not from a sar authority, then coordinating the response on scene may become difficult if the osc is not familiar with sar operations and managing a large mro; –​ Survivor accountability can be a critical issue on scene, especially in a large mro in which many survivors are rescued by several sar facilities;64 –​ There may be language difficulties between the sar facilities and survivors.65,66 10.2 Life Saving Appliance (lsa) considerations67 –​ Assisting ships generally do not have the capability to retrieve a fully loaded survival craft—​even their own.68,69 –​ If a large passenger ship in distress is listing, some, if not all the ship’s lifeboats will be unable to launch, further hampering rescue efforts;70

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This became a problem in the U.S. Coast Guard, U.S. Air Force and Canadian military response to the fire and subsequent rescue of 520 passengers and crew from the passenger ship Prinsendam on October 4, 1980. Two Air Force pararescuemen were deployed to one of the Prinsendam’s lifeboats to assist in hoisting the survivors by helicopter. It was later determined that one lifeboat was missing, requiring further searches by the on scene sar facilities. It was not until the early hours of October 5 that the missing lifeboat was located with 18 survivors and the two missing pararescuemen (Commander, Seventeenth Coast Guard District, M/​V Prinsendam Fire Gulf of Alaska, SAR Case Study (February 3, 1981): Enclosure (1), page 2.). 65 imo, Guide to Recovery Techniques MSC.1/​Circ.1183 (May 31, 2006): Annex, page 3. 66 The sar facility crew may not have a language in common with the recovered survivors. Even when they do, the survivors may not understand the instructions. 67 While there is no specific lsa definition, the imo International Life-​Saving Appliance (lsa) Code, 2010 (“lsa Code”), generally considers lsa s to be, “A broad category of rescue devices, including personal life-​saving appliances like lifebuoys, lifejackets, immersion suits, anti-​exposure suits and thermal protective aids; visual aids, such as parachute flares, hand flares and buoyant smoke signals; survival craft, such as liferafts and lifeboats; rescue boats; launching and embarkation appliances and marine evacuation systems line throwing appliances; and general alarm and public address systems.” 68 The requirements for survival craft launching appliances in the solas Convention and lsa Code address only the lowering of survival craft into the water. There are no provisions for the recovery of the survival craft, particularly in a fully loaded condition. The rescue of persons in a survival craft and transporting them to a place of safety must be conducted via intermediate steps which can be slow and risky. It should also be noted that survival craft are not considered a place of safety. 69 Existing solas Convention requirements (rescue boat, pilot ladder, embarkation ladder, etc.) do not envision an mro scenario resulting in survivors remaining in survival craft for extended periods. 70 This problem occurred during the response to the Estonia, Oceanos, Costa Concordia, as well as in other large passenger ship disasters.

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–​ Small rafts and other survival craft in the vicinity of a responding merchant ship are at risk of being crushed as the two vessels move in the seaway;71 –​ An assisting ship using its boat(s) and davit-​launched raft(s) as lifts to recover survivors is a difficult operation in anything but ideal weather and sea state conditions;72, 73 –​ Deployable rafts and similar lifesaving apparatus are not considered a “means of recovery,” but are intended to help keep people alive until sar facilities better equipped to recover the survivors arrive on scene, or reduce their exposure to the elements; and –​ Requiring survivors to depart the survival craft and enter the water may result in additional, complicating factors, including cold-​immersion shock and ingestion of water (survivors in or on a survival craft provide a relative degree of safety). 10.3 Survivor Considerations –​ In a maritime mro, the varying degree of survivor condition has a direct effect on the success of the rescue;74

71 72 73

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imo, Guide to Recovery Techniques MSC.1/​Circ.1183 (May 31, 2006): Annex, Page 2. Lifting gear may be unable to cope with fully laden craft resulting in only a few survivors being lifted at a time. A raft used for this purpose during the response to the September 28, 1994 sinking of the Estonia in the Baltic Sea split while being lifted due to the weight of the persons and water in the raft; one survivor perished. The Final Action Report states in part: “The passenger ferry Isabella was sailing from Stockholm to Helsinki. … According to the Isabella’s master, the vessel arrived at the scene of the accident at about 0252 hrs. … The next Estonia raft came near the Isabella at 0530 hrs. The master steered the vessel so that three voluntary rescue men who had been lowered in one of the Isabella’s rafts were able to get hold of it. About 20 people on board the raft were transferred to the Isabella’s raft. When the crew of the Isabella tried to winch up this raft, it was too heavy because of the number of people in it and water poured into it. The raft tore in the process and filled with water, upon which at least two of the survivors and the three rescue men fell into the sea. A helicopter called to the scene lifted up one survivor who was hanging on to a lifebuoy, and the three rescue men. … At least one of the persons who had fallen into the sea disappeared. The sixteen survivors still on the damaged raft were pulled one by one up the slide and into the vessel.” The Joint Accident Investigation Commission of Estonia, Finland and Sweden, Final Report on the Capsizing on 28 September 1994 in the Baltic Sea of the RO-​RO Passenger Vessel MV Estonia (December, 1995): Section 7.5.3.; available at: http://​onse.fi/​estonia/​. There are instances where survivors exhibit an almost superhuman ability to swim and climb to safety, yet in other cases, survivors are incapable or unwilling to assist in their own rescue. Infirmity, injury, and incapacitation can prevent a survivor from climbing a cargo net alongside a vessel’s hull, and psychological impairment can hinder the rescue of others.

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–​ In a rapid or uncontrolled abandonment, when not all survivors are able to get into survival craft, there may be persons in the water, or clinging to floating wreckage who are less likely to survive for a long duration;75 –​ The quantities and types of personal lifesaving appliances may be inadequate in view of passenger demographics of large passenger ships, as well as availability of suitable exposure protection for the on-​scene environment; –​ A place of safety must be identified in which large numbers of survivors can be delivered to meet their needs;76,77 –​ Survivors may still be on board the ship in distress and require rescue without the intermediate use of survival craft.78

75

U.S. Coast Guard Research and Development Center, Maritime Mass Rescue Interventions; Availability and Associated Technology -​Final Report (December, 2010): 20. 76 The sar authority, in coordination with the sar facility, is responsible for determining the place of safety. imo Resolution msc.167(78) stipulates that “[a]‌n assisting ship should not be considered a place of safety based solely on the fact that the survivors are no longer in immediate danger once aboard the ship. An assisting ship may not have appropriate facilities and equipment to sustain additional persons on board without endangering its own safety or to properly care for the survivors. Even if the ship is capable of safely accommodating the survivors and may serve as a temporary place of safety, it should be relieved of this responsibility as soon as alternative arrangements can be made.” (Paragraph 6.13) “The Conventions, as amended, indicate that delivery to a place of safety should take into account the particular circumstances of the case. These circumstances may include factors such as the situation on board the assisting ship, on scene conditions, medical needs, and availability of transportation or other rescue units. Each case is unique, and selection of a place of safety may need to account for a variety of important factors.” (Paragraph 6.15) In addition, imo, United Nations High Commissioner for Refugees, and the International Chamber of Shipping jointly published an excellent resource: Rescue at Sea: A Guide to Principles and Practice as Applied to Refugees and Migrants, 2015. In discussing the action required by governments and rcc s in coordinating a merchant ship rendering assistance to persons in distress, it states: “Governments have to coordinate and cooperate to ensure that Masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ship’s intended voyage, and have to arrange disembarkation as soon as reasonably practicable.” It goes on to state that, “the Government responsible for the SAR region in which the rescued persons were recovered is primarily responsible for providing a place of safety or ensuring that such a place of safety is provided.” 77 Large passenger ship companies typically have expertise and capabilities to arrange transportation and other needs of survivors who are delivered to a place of safety with adequate infrastructure. 78 imo, Guide to Recovery Techniques MSC.1/​Circ.1183 (May 31, 2006): Annex, page 2.

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–​ Recovery nets, scoops, strops, slings, seats, litters, baskets, lines and lifebuoys are subject to the problem of the survivor(s) swinging against the ship’s side while being lifted;79 –​ The use of climbable devices (e.g., scramble nets, rope ladders, Jacob’s Ladder, etc.) imply that a survivor being rescued is in a fit state to climb, even though these devices are very difficult to use in the best of environmental conditions.80 –​ Due to injury, illness (including sea sickness after a period in a survival craft), the effects of cold or heat, age, or infirmity, survivors awaiting recovery may lack the ability to help themselves, or to help others help them;81 –​ It is likely that people awaiting rescue will have little or no experience in transferring between small craft, or from a survival craft to a large ship;82 –​ Compounding the survivor rescue challenge is the onset of hypothermia, which limits survivor mobility, requiring sar facilities to expedite the rescue operation; and83 –​ In most cases, survivors in the water should be rescued first over those in survival craft.84 10.4 Example: Racing Yacht Excalibur Rescue at Sea Challenge An example of the challenges associated with sar facilities rescuing persons in distress at sea was described by one of two survivors when their ocean racing yacht Excalibur was lost off the coast of Australia in September 2002. After seven hours in heavy seas the two men were eventually recovered from the water by the bulk carrier Curia. Concerning their recovery, one of the survivors described their rescue:

79

80

81 82 83 84

In rough conditions, the results can be injury or breakage of the gear and loss of the person being lifted. With the exception of some nets and baskets, all these devices are intended for the recovery of one or two persons a time. None of the devices are able to recover large numbers of survivors. While always worth deploying in an mro, climbable devices should not be considered a viable means of rescue, especially for ships with a high freeboard. Pilot and accommodation ladders may be an effective means to rescue survivors in the water, but may be difficult to climb in other than calm sea conditions, or by people suffering from hypothermia. Ibid., Annex, page 3. Ibid., Annex, Page 3. For example, stepping onto a pilot ladder and then climbing may not appear difficult for a fit person, but this may be extremely difficult for others, even in benign weather and sea conditions. The IAMSAR Manual, Volume 2, defines hypothermia as the, “Abnormal lowering of internal body temperature (heat loss) from exposure to cold air, wind, or water.” (Page xx). Ibid., Annex, Page 3.

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If you think you can have a large ocean-​going bulk carrier simply pull up beside you and haul you aboard then you’re in for a hell of a shock. This was by far the most physically demanding and most dangerous part of our ordeal. In the prevailing conditions, it took Curia 11 passes to maneuver into a position in which recovery was possible. Even then, the two men had to swim an estimated 40–​50 meters to reach the ship’s side. But that was just to get into position: the problem of recovery still had to be faced. Mr. Rogers stated: A variety of methods are available to ships’ crew to get you on board but if you are physically incapable then things become doubly serious. Ocean-​going cargo vessels are not designed for rescues, so the means of getting you out of the water come down to the basics, cargo or scramble nets over the side, roll-​down ladders, lifebuoys and ropes with a loop tied in their ends … It was the last method—​the loop of rope being used as a substitute helicopter sling—​that achieved the rescue, but only after Mr. Rogers had slipped out of the loop on the first attempt and fallen back into the sea.85 This rescue highlights the challenges for a merchant ship to rescue just two persons in distress. The challenge is significantly greater when multiple ships are conducting the rescue of hundreds or thousands of survivors. 11

Conclusion

Even though maritime disasters requiring an mro are infrequent, they are high consequence events when considering the potentially large number of lives that could be lost due to a lack of planning and response preparedness. sar authorities must evaluate the risks and challenges associated with the response to an mro; especially an mro occurring offshore. Significant work has been accomplished, both nationally and internationally, in the prevention of disasters at sea. However, it is the sar authority’s response to this worst-​case scenario, with many survivors in the water or survival craft, that must be understood, planned for, and a rescue operation effectively coordinated and conducted to minimize loss of life.

85

John Rogers, “Survival,” Yachting World (September, 2003).

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With the large number of passenger ships and aircraft that transit over and through the world’s oceans every day, the threat of a disaster at sea will continue to be a planning and response preparedness challenge. The difficulty of the response significantly increases when an mro occurs possibly hundreds of miles from available sar facilities and with hundreds or thousands of persons requiring rescue. Passenger ship and aircraft industries, along with regulatory and safety organizations and agencies will continue to improve the safety of these transportation systems. However, even with design and structural improvements, accidents will still occur; it’s just a matter of time. The rescue of hundreds or thousands of people in distress will demand a national and perhaps even an international response. sar authorities must be prepared to meet this challenge by applying lessons learned from past mro exercises and maritime disasters in planning and other response preparedness activities.86 The U.S. Airways Flight 1549 ditching and rescue, Costa Concordia grounding, MH370 search, sinking of the El Faro, the Le Boreal fire and evacuation, as well as many other mro exercises and maritime disasters are an opportunity for sar authorities to learn what went right and what went wrong in the response. Response preparedness must continue to be a continuous process of improvement. The stakes are too high and consequences too great not to be prepared to coordinate and conduct a maritime mro. Responding effectively in a maritime disaster and subsequent mro will be difficult and may very well have a large loss of life. The nature of the incident, on scene weather, location, the passenger ship or aircraft involved, and available sar facilities will all be important factors determining how many survivors are rescued. The more effectively sar authorities can analyze and 86

The U.S. Fire Administration’s, Operational Lessons Learned from Disaster Response (June 2015), provides an important comment concerning the failure of understanding and applying lessons learned from previous disasters:  “The complex, chaotic and negative effects of disasters should provide sufficient inducement to learn and translate the lessons into behavioral change, but for some profound reason that is not the case. Without going into deep analysis, it is sufficient for our purpose here to note that humans simply fail to plan and prepare for future events that may or may not occur. While true that disasters may provide a powerful motivation for responders to want to be good at response, the degree of potential for the event gets in the way of things. People have to know intuitively that the potential for an extraordinary disaster—​to directly affect them—​is great enough to reallocate their time and resources from routine matters to the extraordinary event. … Only in areas or regions that experience potentially hazardous or severe events on a predictable or regular basis will people be motivated to adapt or change their behaviors.” Available at: file://​/​N:/​CG-​SAR%20 Program/​ A rticles/​ M RO%20Article%20(2018)/ ​ F EMA%20- ​ % 20Operational%20 Lessons%20Learned%20In%20Disaster%20Response%20(June,%202015).pdf.

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understand potential maritime disaster and mro risks, develop plans with other sar authorities and industry stakeholders, and exercise and improve the plans, the more they can make a difference in the number of survivors rescued. In a maritime mro, when the potential scenario could involve the rescue of thousands of survivors, a sar authority will never be able to “go it alone.” This is an “all hands on deck” situation requiring the immediate execution of comprehensive mro response plans, as well as the assistance of any others able to render aid to persons in distress.

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Models for Maritime Collaboration in the South China Sea: National-​level Coordination Brian Wilson* Abstract The era of addressing at-​sea challenges exclusively with a navy warship or coast guard cutter has evolved into a more distributed response environment. The maritime enforcement spectrum now includes a number of government departments, such as the military, law enforcement, health, treasury, and the diplomatic corps. More agencies are involved because threats are more complex, authorities are more widely allocated, and the end-​state is often the courtroom or regulatory action. These agencies, however, frequently operate under different chains of command. As such, information may not always be shared and responses not synchronized. Decisions such as how to respond to malware on a tanker plying the high seas; logistics details related to how captured pirates will be transported from a warship to a prosecuting State; and the response to a vessel with a passenger possibly infected with a lethal contagion almost always involves multiple agencies. This article focuses on the emergence of whole-​of-​government frameworks, supported by checklists, to better position States to collaboratively identify and confront contemporary maritime security challenges.

Keywords South China Sea –​malware –​cyberwar –​disaster response –​computer virus –​biohazard –​ Checklist Manifesto –​ whole-​of-​government

* Brian Wilson is the Deputy Director, Global Maritime Operational Threat Response Coordination Center, U.S. Coast Guard/​U.S. Department of Homeland Security, a Visiting Professor at the United States Naval Academy, and a Nonresident Fellow at the Stockton Center for International Law at the U.S. Naval War College. The views expressed are those of the author and do not reflect the official policy or position of the U.S. Navy, U.S. Coast Guard or U.S. Department of Homeland Security. Brian may be reached at: [email protected].

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_021

392 Wilson Maritime enforcement frequently involves significant levels of complexity, vast coverage areas, and time sensitive challenges. Responses also routinely include multiple agencies and multiple nations. This unique combination of threat response considerations requires a unique level of cooperation. When NotPetya, a devastating computer virus ripped through thousands of computers owned by a Copenhagen-​based transportation corporation in 2017, its scope and impact were not initially known.1 Any significant disruption to Maersk—​the “world’s largest shipping container shipping company” with a fleet of 639 ships, operations in 130 countries and almost 80,000 employees2—​ would represent a significant disruption to global shipping. “Within half an hour [of the first attack], Maersk [Headquarters] employees were running down hallways, yelling to their colleagues to turn off computers or disconnect them from Maersk’s network before the malicious software could infect them, as it dawned on them that every minute could means dozens or hundreds more corrupted PCs. Tech works ran into conference rooms and unplugged machines in the middle of meetings. Soon staffers were hurdling over locked key-​card gates, which had been paralyzed by the still-​mysterious malware, to spread the warning to other sections of the building.”3 Maersk operations were now significantly disrupted, and while temporary, the damage included an inability to “to accept bookings from clients,”4 extraordinary for a company responsible for the movement of approximately 13 million containers annually.5 The NotPetya virus, which required Maersk to rebuild 4,000 servers and 45,000 computers,6 and affected several port terminals, is a narrative in strategic crisis management.7 NotPetya also is emblematic of contemporary 1 Andy Greenberg, The Untold Story of NotPetya, the Most Devastating Cyberattack in History, Wired, August 22, 2018. 2 Maersk website, About Maersk; https://​www.maersk.com/​about. 3 Greenberg, supra, note 1. 4 Christian Weinberg, Maersk Shuts Down Some Systems to Help Contain Cyber Attack, Bloomberg, June 28, 2017, https://​www.bloomberg.com/​news/​articles/​2017-​06-​28/​maersk-​ has-​shut-​down-​some-​systems-​to-​help-​contain-​cyber-​attack-​j4gojbu7. 5 Jim Hagemann Snabe, Chairman of the Board of Directors of A.P. Moller-​Maersk A/​S statement, Leading the Transformation of our Industry, February 9, 2018. The statement noted Maersk ships “close to one out of five containers and one of four reefers containers globally, corresponding to approxominately 13 million forty foot containers annually. For each container shipped there may be up to 30 different parties involved, comunicating up to 200 times … We want to transform the industry by reducing complexity. We believe it should as easy for our customers to ship containers as it is to send a parcel with a postal carrier.” https://​ www.maersk.com/​en/​news/​2018/​06/​29/​leading-​the-​transformation-​of-​our-​industry. 6 Greenberg, supra, note 1. 7 Arjen Boin, Paul’t Hart, Eric Stern and Bengt Sundelius, The Politics of Crisis Management, 2nd Edition, 2017. The authors categorize the five tasks of strategic crisis leadership as,

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challenges: Making sense of a threat or event with incomplete and at times, contradictory information; determining what is known and what additional information needs to be known, integrating the private sector with the government, and identifying which agency is lead. Further inquiries include clarifying how information will be consolidated and disseminated to senior officials for awareness and decision. This article focuses on the process to integrate varied response considerations as well as the benefits of checklists in whole-​of-​ government maritime efforts, providing several examples. Maritime challenges are extensive and could include, for example, whether an undocumented passenger represents a clerical oversight, a stowaway, or a security threat; whether a container that registers positive for radiation has a weapon or contaminated cargo; and whether a vessel that turns off its Automatic Identification System (ais) is engaged in illicit activity or is concealing its location to protect itself from attack. Even though a single organization may be responsible for conducting an at-​sea boarding, for instance, there are generally a number of supporting departments, and their efforts must be integrated for an effective response. A key enabler to alignment is the ability of government agencies to share information with other agencies (or potentially within their own agency). Even though agencies are from the same country, many have legislation or policy that can restrict the dissemination of information outside of their organization. Thus, in approaching whole-​of-​government integration, it is crucial to initially clarify whether officials are even permitted to disseminate information outside of their department. Without a legal ability and an accompanying requirement to share information, critical data may not always be recognized, threats cannot be fully identified, nor can all anomalies be detected. Separately, the rapid speed with which reports are conveyed has unintentionally created challenges regarding data validation. Whole-​of-​government maritime threat response frameworks, a relatively new bureaucratic construct, are well positioned to address—​and favorably resolve or elevate to senior officials for

“Sense-​making: collecting and processing information that will help crisis managers to detect an emerging crisis and understand the significance of what is going on during a crisis; Decision making and coordination: making critical calls on strategic dilemmas and orchestrating a coherent response to implement those decisions; Mean making: offering a situational definition and narrative that is convincing, helpful and inspiring to citizens and responders; Accounting: explaining in a public forum what was done to prevent and manage the crisis and why; and Learning: determining the causes of a crisis, assessing the strengths and weaknesses of the responses to it, and undertaking remedial action based on this understanding.” Id., p. 15.

394 Wilson resolution—​fundamental issues related to the exchange of information and aligned decision-​making. Several nations have recently recognized the solution to overcoming maritime complexity and integration challenges resides in interagency response frameworks.8 Goals with these frameworks include compelled information sharing, timely threat identification, threat prevention, and when necessary, integrated action (both within a country and with partner nations). The terms whole-​of-​government and interagency are used interchangeably in this article. While interagency frameworks advance strategic-​level coordination priorities, checklists support operational-​level actions by documenting required information, response considerations, and involved agencies. A book that celebrated the importance of checklists, likely the only best seller on the topic, noted, “In a complex environment, experts are up against two main difficulties. The first is the fallibility of human memory and attention, especially when it comes to mundane, routine matters that are easily overlooked under the strain of more pressing events … A further difficulty, just as insidious, is that people can lull themselves into skipping steps even when they remember them. In complex processes, after all, certain steps don’t always matter …’This has never been a problem before,’ people say. Until one day it is.”9 Though the Checklist Manifesto includes several medical vignettes, the overarching premise that checklists are valuable has resonance in maritime enforcement. The use of checklists is not a new concept for naval and coast guard officers, who refer to these tools in tactical-​level/​operational environments as well as in command centers as quick response cards and kneeboard cards, among other terms. Checklists also can provide a foundation for whole-​of-​government collaboration. “Checklists … remind us of the minimum necessary steps and make them explicit. They remind us of the minimum necessary steps and make them explicit. They not only offer the possibility of verification but also instill a kind of discipline of higher performance.”10 The following fictitious scenario 8

9 10

Examples of whole-​of-​government maritime threat/​event response frameworks established after 2005 include Australia: Maritime Border Command; Canada: Maritime Event Response Protocol; Georgia: Joint Maritime Operations Center; Japan: Crisis Management Center/​Cabinet Information Center; New Zealand: National Maritime Coordination Centre; Senegal:  High Authority in Charge for Co-​ordination of Maritime Safety, Security and Marine Environment Pollution; Singapore: National Maritime Sense-​Making Group; United Kingdom:  National Maritime Information Centre; and the United States:  Maritime Operational Threat Response Plan. Atul Gawande, The Checklist Manifesto, 2010, pp. 35–​36. See also Otho E. Eskin, Law of the Sea and the Management of Multilateral Diplomacy, (Volume 1, Issue 5 of Oceans Policy Study, Center for Oceans Law and Policy, 1978), 55 pp. Id., p. 36.

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emphasizes how a checklist can support a whole-​of-​government response to a potential safety, health and security challenge in the maritime environment.

A Cruise Ship Biohazard

In this hypothetical scenario, a cruise ship with more than 4,000 passengers and crew is approximately 75 miles from port when the master radios local authorities on shore inquiring about medical capabilities. The master asks whether there is a treatment facility near port that could provide urgent treatment to more than 125 passengers and crew members, and separately discloses required medical information. Following the master’s disclosure, a critical response window of opportunity now exists. All necessary facts, however, are not yet known, nor are national-​level officials with the expertise, identified. Should senior officials be notified, even with incomplete information; if so, what would they be told? What questions would a health protection agency, such as Centers for Disease Control (cdc), need answered? Would phone calls to area hospitals (even to initially identify whether physicians and treatment facilities are available) regarding the master’s report trigger media inquires? Moreover, would a delay in identifying the scope/​gravity of this event unintentionally allow a vessel to enter port with dozens of passengers carrying, potentially, tuberculosis or severe acute respiratory syndrome? To fully assess the medical situation, it will be necessary to know the scope of the symptoms, including the presence of a fever or chills, headache, fatigue, dry cough or difficulty in breathing, as well as recent port calls. Officials in this scenario concentrated on treatment considerations, but other issues existed, such as whether the event could represent a bioterrorist threat, and if so, how would information be shared between separate response communities (e.g., health and law enforcement) within a government. In the hypothetical scenario, port officials contacted an epidemiologist and investigative/​law enforcement officers and separately notified national-​level government officials. A whole-​of-​government framework developed courses of action. Waiting for the vessel to enter port to initially assess the situation could create additional risks, for example, but depending on what is reported and known, such action may be the best option. Making sense of this situation requires obtaining/​validating information in a compressed period, and includes identifying the agencies that need to be involved in the response; the process to disseminate information; and the overall lead and supporting agencies for the response.

396 Wilson To have value, questions/​considerations must be drafted, tested, and validated before an event. The development of such a checklist forces agencies at the tactical-​level to identify subject matter experts and collaboratively examine authorities, responsibilities, and key considerations. During the response to an event, it is not expected that officials will immediately have answers to every question, but documenting what is important will better focus tactical-​ level response efforts in a likely chaotic environment. Checklists also seek to clarify the issues that officials may first ask: What is happening and who is in charge?11 Equally important strategic-​level questions and policy issues include: What is being done, who is responsible, who is affected, who is at fault, why did it happen and where did it happen, and what more do we need to know?12 Checklists, particularly at the tactical-​level, support collaborative frameworks, though their value is not unconditionally recognized. “The fear people have about the idea of adherence to protocol is rigidity. They imagine mindless automations, heads down in a checklist, incapable of looking out their windshield and coping with the real world in front of them. But what you find, when a checklist is well made, is exactly the opposite. The checklists gets the dumb stuffy out of the way, the routines your brain shouldn’t have to occupy itself with, and lets it rise above to focus on the hard stuff.”13 In the hypothetical scenario, the infected passengers and crew members were isolated and treated by medical professionals. Coordination with an area hospital and local government officials unfolded through an interagency process to enable the timely resolution of a potential epidemic. Federal investigators working with public health officials determined there was not criminal activity.14 The interagency process also guided discussions and coordinated media statements, including responses to queries. Annex A includes 25 questions and considerations—​based on collaborative engagements by the author over the past decade—​for those involved with developing and implementing a whole-​of-​government maritime threat response framework. The list is also relevant in other national-​level response areas, as it 11

Eric Stern, Preparing: The Sixth Task of Crisis Leadership, Journal of Leadership Studies, 7(3), September 2013. 12 See generally, Boin, Hart, Stern and Sundelius, The Politics of Crisis Management, supra note 7. 13 Gawande, The Checklist Manifesto, supra, note 9, p. 177. 14 Questions raised in the who Handbook, supra, note 11, also include whether the outbreak was due to terrorism; whether the disease has been weaponized; what is the level of certainty that it was not a deliberate release, and whether the disease is a genetically altered strain that is resistant to any known medical treatment.

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includes foundational considerations for aligning agencies that operate under separate chains of command. Whole-​of-​Government frameworks at the national-​level, as well as checklists at the operational-​and command center-​level, must continually be evaluated. “To be sure, checklists must not become ossified mandates that hinder rather than help. Even the simplest requires revisitation and ongoing refinement. [Some] checklists include a publication date [and] are expected to change with time. In the end, a checklist is only an aid. If it doesn’t aid, it’s not right.”15 The imperative to repeatedly validate response considerations is highlighted in the below fictitious situation involving a vessel potentially transporting illicit cargo.

An Ambiguous Threat

In this hypothetical scenario, a vessel provides timely notice of its intent to enter port and includes required information regarding its crew, past ports of call and cargo. The ship is transporting liquid urea, a chemical that could represent legitimate fertilizer or be used as an illicit explosive; hasn’t visited the port state in more than 15 years, is in poor materiel condition; is likely not in compliance with international standards related to the prevention, reduction and control of pollution; and has a crewmember with a possible link to a transnational criminal organization. After preliminary discussions within one government agency, it is not immediately known whether the vessel presents a threat, and if so, what should be the response. In the absence of a national-​level coordination process, anomalies may not be expeditiously detected and threats not identified, and as noted above, there may be uncertainty regarding whether a threat exists. More broadly, courses of action cannot be developed when it is not clear what is happening, what agencies are involved and what (policy, legal, investigative, and diplomatic) decisions must be made. The initial focus may be on an individual agency acquiring/​validating data, though it is equally important to focus on the information that may be shared with interagency colleagues and the process with which to ensure it is shared. A critical whole-​of-​government framework deliverable is to agree on the desired national outcome, particularly challenging when multiple departments have response roles yet operate under separate chains of command. One 15

Gawande, The Checklist Manifesto, supra, note 9, pp. 183–​184.

398 Wilson agency may seek the immediate removal of suspects from a deployed warship, for instance, while another may seek the completion of an investigation prior to transporting the suspects, or in another situation, one agency may seek to deny port entry to a vessel suspected of carrying illicit cargo and another may desire its entry. Moreover, a desired national-​outcome that is threat prevention will likely involve different operational, legal, and diplomatic legal considerations than one in which the desired outcome is a criminal prosecution (a legal end-​state). Reaching consensus on the desired national outcome ensures agencies collaboratively work toward achieving the same objective. Discussions on the response to the hypothetical scenario also will include identifying the legal authority for actions that may be taken and/​or proposed courses of action, the potential impact of action or inaction on diplomatic relations, international trade, economic cooperation and the free flow of commerce. Disposition considerations include legal requirements for a prosecution, what agency within a government will investigate, whether diplomatic agreements are necessary if witnesses or evidence reside in a partner nation, and which agency will pay for transportation/​logistics costs. Other questions, such as whether to issue a media statement (and if so, by which agency) will need to be addressed. Gawande noted that in medicine, “We’re obsessed … with having great components—​the best drugs, the best devices, the best specialist—​but pay little attention to how to make them fit together.”16 Similar to technical advances in other fields, the maritime community has also developed impressive levels of expertise, though integration, unfortunately, is often a secondary consideration. Gawande further noted, “Without question, technology can increase our capabilities. But there is much that technology cannot do: deal with the unpredictable, manage uncertainty. …In many ways, technology complicated these matters. It added another element of complexity to the systems we depend and given us entirely new kinds of failure to contend with.”17 Whole-​of-​ government response frameworks, combined with documented protocols and their consistent use, provide an unmatched capability to overcome potential integration failures that exist amidst agencies with specialized capabilities. In the hypothetical case, experts and policy officials from civil and military agencies, including the intelligence community, collaboratively assessed the risk, potential operational responses, diplomatic considerations, and legal authorities. A senior policy official then directed a boarding as far from shore as

16 Gawande, The Checklist Manifesto, supra, note 9, p. 184. 17 Id.

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possible (to identify whether a risk existed) following flag State confirmation of registry and authorization to stop, board and search, while federal investigators conducted extensive land-​based inquiries, and other agencies took action consistent with their authorities. No adverse information surfaced, and in the absence of an identified threat, the ship was cleared to enter port. Whole-​of-​Government maritime threat response frameworks bring structure, transparency, and alignment to responses involving multiple agencies, a necessity with complexity and uncertainty. Those benefits extend well beyond maritime challenges, with resonance in the response to simultaneously occurring land and at-​sea threats/​events, discussed below.

Multiple Disasters Occurring on Land and Water in Rapid Succession

It is unlikely that multiple disasters will occur in rapid succession in land and maritime environments. That is why such a scenario is not frequently examined, though in 2011, Japan responded to a 9.0 magnitude earthquake, a 50-​foot tsunami, and destructive nuclear plant meltdown.18 The multiple disaster scenario is especially difficult because it requires the rapid integration, trust, and collaboration of personnel from different operating communities that do not ordinarily work together. The ability to respond to thousands of deaths,19 nuclear meltdowns and supply chains being shut down or severely disrupted is tremendously challenging. “Disasters are the ultimate test of emergency response capability.”20 Training, exercises, and checklists improve response capability. Annex B provides a checklist of considerations regarding disaster planning and training programs.21 One example: Does your disaster plan and training program provide procedures for assessing the overall disaster situation and response needs? For disseminating this information among all the responding organizations?22 Similar to checklists discussed earlier, the development of questions/​considerations in advance of 18

19 20 21 22

Fukushima Daiichi Accident, World Nuclear Association, Updated October 2018 [hereinafter Fukushima Daiichi Accident], http://​www.world-​nuclear.org/​information-​library/​ safety-​and-​security/​safety-​of-​plants/​fukushima-​accident.aspx Regarding the reactors, “all three cores largely melted in the first three days.” Id. Id., “Official figures show that there have been well over 1,000 deaths from maintaining the evacuation [of Fukushima Daiichi] …”. Erik Auf der Heide, Disaster Response; Principles of Preparation and Coordination, 1989, p. 4 (hereinafter Disaster Response study). Id. Id.

400 Wilson a meta disaster—​the identification of participants, training requirements, authorities (and potential gaps)—​is often more important than the answers. There is no single definition of what comprises a multiple disaster event. There nevertheless needs to be a documented process to acquire, analyze, validate, and disseminate information as well as make decisions that involve multiple agencies. Thus preparation for such an event requires creativity and adaptability regarding the range of available options. An article summarizing the interim assessment of the Japanese disaster remarked, “No one seems ever to have tried to think about the unthinkable,” and noted communications and coordination difficulties, including senior leaders temporarily assigned to the basement of a building where their cell phones did not work.23 Separately, the Electric Power Research Institute, which examined the disaster, noted that a contributing factor was the failure to “consider as credible that a tsunami could be caused by ruptures across several fault segments in the vicinity of the plant.”24 Additionally, a meta disaster may spark competition between government agencies and with the private sector for limited resources and assets. A study on the response to concurrently occurring hazards in Japan “revealed the influence of conflicting interests during an emergency.”25 In addition to resources, technical connectivity must exist between agencies. Communications systems within an agency and other government agencies, as well as with other nations and the private sector, should be frequently tested, and tested under conditions in which they would be used during a hazard. As paths of communication continue to evolve, training and interoperability remains an imperative focus area. Strategic communications—​public affairs—​with the media represents another critical focus area. “The ultimate impact of an event depends both on pre-​existing levels of vulnerability and on the response. Effects can be mitigated at three stages of a crisis:  before (by reducing vulnerability), during (crisis response) and after (post-​crisis response). Large events, such as ash clouds, hurricanes and earthquakes, involve all three sectors—​government,

23 24

25

The Economist, January 7th-​13th, 2012, Banyan, The Fukushima black box, page  38; available at: https://​www.economist.com/​asia/​2012/​01/​07/​the-​fukushima-​black-​box. Electric Power Research Institute, Fukushima Daiichi Accident-​Technical Causal Factor Analysis, 2012 Technical Report, March 2012, p.  3–​4; https://​www.epri.com/​#/​pages/​ product/​000000000001024946/​?lang=en-​US; and Fukushima Daiichi Accident, supra note 19. Bernice Lee and Felix Preston, with Gemma Green, Preparing for High-​Impact, Low-​ Probability Events, Lessons from Eyjafjallajokull, A Chatham House Report, January 2012 (hereinafter Chatham House Report); p. 18.

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the private sector and civil society—​with the interaction between them often affected, for better or worse, by the media … Transparency and clarity over why and how decisions are taken in a time of crisis are a critical issue [for] governments and the private sector alike.”26 In addition to addressing immediate threats, attention in a meta-​disaster scenario may also need to focus on, for example, debris removal, search and rescue, road clearance, temporary shelters, controlling transportation modes, removal of hazardous substances and supply chain restoration.27 In contrast to other maritime events, the meta-​disaster scenario could involve every government agency as well as nongovernmental organizations and the private industry. The time invested in discussions and planning prior to a meta disaster should improve awareness of authorities, agency responsibilities, potential gaps and seams, and more broadly, better position an effective response. The U.S. Government Accountability Office (gao) studied collaborative constructs across multiple federal response communities.28 The following gao-​drafted considerations for the development of interagency frameworks are also instructive in planning for a meta disaster: –​ Define and articulate a common outcome; –​ Establish mutually reinforcing or joint strategies; –​ Identify and address needs by leveraging resources; –​ Agree on roles and responsibilities; –​ Establish compatible policies, procedures, and other means to operate across agency boundaries; –​ Develop mechanisms to monitor, evaluate, and report on results; –​ Reinforce agency accountability for collaborative efforts through agency plans and reports; and –​ Reinforce individual accountability for collaborative efforts through performance management systems.29 The gao considerations further have relevance in confronting maritime-​ specific threats/​events, discussed in the following fictitious scenario involving malware.

26 Id. 27 Id. 28 U.S. Government Accountability Office, Managing for Results, Implementation Approaches Used to Enhance Collaboration in Interagency Groups (hereinafter gao Report); February 2014, GAO-​14–​220. 29 Id., p. 4.

402 Wilson

Malware on a Commercial Vessel

A tanker was carrying approximately $100 million dollars of crude oil from West Africa to a North American port when the bridge received an e-​mail demanding the payment of $50,000 in bitcoin in the next 24 hours, or all personnel and medical files of crewmembers would become locked. The e-​mail further warned, ais and Long Range Identification and Tracking (lrit) systems would become locked in 48 hours and thus inoperable if payment was not made. It is necessary to first identify what is the threat, what agencies are involved, what agency is the lead, whether reporting of this event is compulsory, and if so, to whom, and to determine how information will be shared (within the government, the private sector, with partner nations) and how information will be protected. Regarding clarification of the threat, a United Kingdom-​developed Cyber Code of Practice for maritime security noted several categories, including:30 –​ unauthorised access to sensitive ship data (commercial, personal or security-​related); –​ theft of sensitive ship data; –​ deletion, unauthorised modification or corruption of ship data; –​ infection with malware; –​ loss of service from systems due to loss of connectivity or power; –​ loss of service from systems due to software and hardware failures; –​ compromise of ship security systems; –​ denial of service—​externally hosted systems; –​ denial of service—​ship systems; –​ jamming or interference with positioning systems (gnss/​g ps); and assessing efficacy of system operation (for example coverage and performance of cctv and intruder detection systems). Addressing cyber attacks benefit tremendously from a whole-​ of-​ government framework and checklists that document tactical-​level response questions and considerations. Paramount is the protection of information received from the private sector and determining what can be shared between the private sector and government officials (as well as among nations). In a maritime context, the following questions were developed for assessing cyber risks aboard ships:31 30 31

Hugh Boyes and Roy Isbell, United Kingdom Department for Transport, Institution of Engineering and Technology, Code of Practice; Cyber Security for Ships, 2017, (hereinafter Cyber Code of Practice), p. 45. Guidelines on Cyber Security Onboard Ships, version 3, December 2018, (hereinafter Cyber Guidelines), p. 16.

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–​ What assets are at risk? –​ What is the potential impact of a cyber incident? –​ Who has the final responsibility for the cyber risk management? –​ Are the OT (operational technology) systems and their working environment protected from the internet? –​ Is there remote access to the OT systems, and if so how is it monitored and protected? –​ Are the IT (information technology) systems protected and is remote access being monitored and managed? –​ What cyber risk management best practices are being used? and –​ What is the training level of the personnel operating the IT and OT systems? Investigative and judicial attention on cyber attacks against ships and maritime infrastructure reflects the growing response challenge. The U.S. Department of Justice indicted two people for ransomware attempts involving the Port of San Diego, among other venues.32 A criminal indictment filed in the U.S. District Court for the District of New Jersey asserted: On or about September 25, 2018, Defendants accessed the computer network of the Port of San Diego and deployed the SamSam Ransomware on its computers, encrypting them, all without authorization. … [And that] On or about September 25, 2018, Defendants extorted the Port of San Diego by demanding a ransom paid in Bitcoin in exchange for decryption keys for the encrypted data.33 Separately in 2018, the U.S. Department of Justice in the U.S. District Court for the Southern District of New York (s.d.n.y.) filed indictments for, among other things, conspiracy to commit computer intrusions.34 The indictment asserted the defendants “engaged in an intrusion campaign to obtain unauthorized 32

33 34

Department of Justice, Office of Public Affairs, November 28, 2018, Two Iranian Men Indicted for Deploying Ransomware to Extort Hospitals, Municipalities, and Public Institutions, Causing Over $30 Million in Losses; https://​www.justice.gov/​opa/​pr/​two-​ iranian-​men-​indicted- ​deploying-​ransomware- ​extort-​hospitals-​municipalities-​and-​ public. U.S. v. Faramarz Shahi Savandi and Mohammad Mendi Shah Mansouri, Indictment, U.S. District Court, District of New Jersey, November 26, 2018. U.S. v. Zhu Hua and Zhang Shilong, Indictment, U.S. District Court, Southern District of New York, December 17, 2018. See also, Department of Justice, Office of Public Affairs, Two Chinese Hackers Associated with the Ministry of State Security Charged with Global Computer Intrusion Campaigns Targeting Intelligectual Property and Confidential Business Information, December 20, 2018, https://​www.justice.gov/​opa/​pr/​two-​chinese-​ hackers-​associated-​ministry-​state-​security-​charged-​global-​computer-​intrusion.

404 Wilson access to the computers and networks of managed service providers for ­business and governments around the world … [and involved] a diverse array of commercial activity, including … maritime technology.”35 Further, “more than 40 computers [were compromised] in order to steal confidential data from those systems belonging to the United States Department of the Navy, including the personally identifiable information of more than 100,000 Navy personnel.”36 The s.d.n.y. indictment also charged that the defendants and their co-​ conspirators “successfully obtained unauthorized access to at least approximately 90 computers belonging to, among others, commercial and defense technology companies and U.S. Government agencies located in at least 12 states, and stole hundreds of gigabytes of sensitive data and information from their computer systems …”37 Following the indictment, U.S. Deputy Attorney General, Rod J. Rosenstein emphasized the importance of a whole-​of-​ government approach.38 Along with an increased investigative and judicial focus on cyber threats, there is an accompanying need to integrate multiple agencies and the private sector. The Guidelines on Cyber Security Onboard Ships, version 3, December 2018, collaboratively drafted by private sector shipping organizations, discussed several maritime cyber attacks and disruptions, all of which benefit from a whole-​of-​government approach.39 One example: “A new-​build dry bulk ship was delayed from sailing for several days because its ecdis [Electronic Chart Display and Information System] was infected by a virus. The ship was designed for paperless navigation and was not carrying paper charts. The failure of the ecdis appeared to be a technical disruption and was not recognized as a cyber issue by the ship’s master and officers. [After] spending a significant time in troubleshooting [it was] discovered that [the] ecdis network [was] infected with a virus. The virus was quarantined and the ecdis computers were restored. The source and means of infection in this case are unknown. The delay in sailing and costs in repairs totaled in the hundreds of thousands 35 36 37 38

39

Id., Hua and Shilong indictment. The indictment also asserted the “APT10 Group’s hacking operations evolved over time, demonstrating advances in overcoming network defenses, victim selection, and tradecraft.” Id. Id. David E.  Sanger and Katie Benner, U.S. Accuses Chinese Nationals of Infiltrating Corporate and Government Technology, New York Times, December 20, 2018, https://​ www.nytimes.com/​2018/​12/​20/​us/​politics/​us-​and-​other-​nations-​to-​announce-​china-​ crackdown.html. Cyber Guidelines, supra, note 32.

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of dollars (US).”40 A whole-​of-​government process would be particularly beneficial in addressing this type of attack, as multiple agencies could have a response role in identifying the illicit activity and malware, as well as integrating actions. In addition to the development of interagency frameworks, ensuring a legal end-​state, preparation, and detection remain keys to an improved landscape. “In 2018, it took on average 140 days between time of infection on of a victim’s network and discovery of a cyber attack. However, intrusion[s]‌can go undetected for years. This figure is down from 205 days in 2015 and continues to drop because detection is getting better …”41 In the fictitious scenario, the shipping agent expeditiously reported the cyber event to the flag State. Experts from the State provided technical support and identified the source of the malware. A  whole-​of-​government process guided the response and identification of courses of action. Additional considerations for cyber as well as for Illegal, Unreported, and Unregulated (iuu) fishing and maritime Search and Rescue (sar) are provided at Annex C, and a development checklist from The Checklist Manifesto is provided at Annex D.

Conclusion

The maritime enforcement spectrum includes a large number of government departments, such as the military, law enforcement, health, treasury, and the diplomatic corps. More agencies are involved because threats are more complex, authorities are more widely allocated, and the end-​state is often the courtroom or regulatory action. These agencies, however, frequently operate under different chains of command. As such, information may not always be shared and responses not synchronized. Interagency frameworks that have recently emerged are improving the threat response landscape by encouraging an adaptive, inclusive, and transparent approach, requiring information to be shared and agency actions to be aligned, and documenting a process to make timely decisions. As threats continue to evolve, the imperative increases for a nationally directed, frequently

40 41

Id. Id., “Cyber attacks are conducted in stages. The length of time to prepare a cyber attack can be determined by the motivations and objectives of the attacker, and the resilience of technical and procedural cyber risk controls implemented by the company, including those onboard its ships.” Id., p. 11.

406 Wilson trained and integrated process, along with checklists that are repeatedly reviewed, validated, and updated.42

Annex A

Whole-​of-​Government Response Framework Questions –​ Is there a document that created the collaborative framework, center or integration office/​center? –​ Who approved the framework, center or integration office/​center? –​ What ministries comprise the framework, center or integration office/​center? –​ What issues or challenges does the framework, or integration office/​center address? –​ Who funds the center (including salaries of those participating, the office, and electronic equipment)? –​ Is one agency responsible for administrative functions? –​ Does the framework address local collaborative action and/​or national-​level strategic decisions? –​ Are (all) members of the center co-​located? –​ Does the framework operate on unity of effort or command and control? –​ Is information sharing required for participants from different agencies? If so, is a memorandum of understanding or statutory authorization required? –​ Are there rules to protect information? –​ Are daily summaries of action or decisions distributed to government officials, and if so, who receives? 42

gao Report, supra, note 29; Highlights. See also, in discussing leadership, the gao report noted, “A few expert practitioners [stated] effective interagency leaders possessed ‘soft skills,’ ‘people skills,’ or ‘interpersonal skills.’ One expert practitioner [noted] that effective interagency group leaders did not have to be extroverted, but had to be able to work well with people. Another expert practitioner told [gao] that the leader needed to talk in person with stakeholders rather than managing or interacting remotely. Id., p. 27. See further, “one scholar noted that collaborative leaders must be attuned to the needs and motivations of others to lead collaborative efforts.” Id., p. 28. The report conducted by gao further chronicled implementation categories for interagency groups: Outcomes (“Have short-​term and long-​term outcomes been clearly defined”); Accountability (“Is there a way to track and monitor progress”); Leadership (“Has a lead agency or individual been identified,” and “If leadership will be shared between one or more agencies, have roles and responsibilities been clearly identified and agreed upon.”); and Resources (“How will the collaborative mechanism be funded,” and how will the collaborative mechanism be staffed.”).

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–​ Are triggers required to activate interagency collaboration (by participants within the center and throughout the government) or does coordination routinely occur within the center by its participants? –​ Does the framework have guiding strategic-​level principles? –​ Does the center have an ability to forward information to the office of the Prime Minister/​President or national security staff? –​ Is there an ability to engage with other governments? And Considerations –​ Ensuring technical connectivity among participants (if not co-​located) –​ Clarifying who documents & disseminates decisions –​ Defining under what circumstances the private sector may become involved –​ Agreeing to the typical level (rank/​pay-​grade) of participants within the center –​ Whether there is benefit in developing a protocol to resolve disagreements –​ Documenting legal considerations with regard to data protection –​ Developing metrics to measure effectiveness measured –​ Drafting training requirements/​considerations for officials that participate in interagency collaborative activities and further ensuring compliance –​ Identifying who notifies senior-​level government officials of an issue

Annex B

“Checkpoints” to Consider in Advance of a Threat or Event43 –​ Does your disaster plan and training program provide procedures for assessing the overall disaster situation and response needs? For disseminating this information among all the responding organizations? –​ Does your disaster plan and training program provide procedures for ascertaining all the resources at the disaster site? All the resources responding? All the needed resources available? The procedures for obtaining them? The time it will take for them to arrive? –​ Does your disaster plan and training program provide procedures for limiting the congestion caused by excessive responders at the scene? –​ Are there centralized procedures for requesting resources so that duplication of requests are avoided?

43

Erik Auf der Heide, Disaster Response study, supra note 20, pp. 83–​84.

408 Wilson –​ Are check-​in areas a part of the disaster plan and training? –​ Whose responsibility is it to develop and maintain a disaster resource-​ acquisition directory? –​ Does everyone know how to access this information? –​ Does your plan and training include procedures for incorporating and managing volunteers and unexpected responders? –​ Does your community have an emergency operations center (eoc)? –​ Are all the appropriate disaster organizations represented at the eoc? Is the existence and function of the eoc well understood by all those who are expected to participate in it? –​ Do top-​level managers of disaster response organizations understand and accept the importance of their being present at the eoc? –​ How many eoc s will there be in a disaster? –​ Is the eoc vulnerable to disaster threats such as flooding? –​ Who has been designated as responsible for managing the eoc? –​ Are private sector organizations (Red Cross, Salvation Army, hospitals, private ambulance companies) represented at the eoc? –​ Who decides when the eoc is to be activated? What criteria are used? How are all the eoc representatives notified that it is being activated? –​ Does representation at the eoc vary according to the phase of the disaster (e.g., warning phase vs. vs. recovery)? –​ Is there provision for the eoc to incorporate non-​local or unexpected responders (e.g., the Environmental Protection Agency)?

Annex C

Issue-​specific checklist questions: Illegal, Unreported, and Unregulated (iuu) fishing and maritime Search and Rescue (sar)

Responding to Illegal, Unreported, and Unregulated (iuu) Fishing Questions and Considerations44 –​ Which entity (agency/​unit/​division/​authority) has primary responsibility for implementing port State measures for fishing vessels in your country? 44 Pew Charitable Trusts, A  Methodology For Capacity Needs Assessments Towards Implementtion of Port State Measures Agreement, pp.  38–​40; available at:  https://​ www.pewtrusts.org/​en/​research-​and-​analysis/​reports/​2014/​02/​06/​a-​methodology-​ for-​capacity-​needs-​assessments-​towards-​implementation- ​of-​the-​port-​state-​measures-​ agreement.

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–​ List any other government departments/​agencies/​authority involved in regulating the movement and inspection of foreign vessels of all types in your port. –​ Is there any cooperation or co-​ordination between these departments/​ agencies/​authorities and the fisheries /​department/​agency/​authority? If yes, what form does the cooperation take? –​ Which ports are used by foreign-​flagged vessels that undertake fishing or fishing-​related activities (refueling, reefers, supply vessels). –​ Name any ports officially designated for use by foreign-​flagged fishing vessels. Reefers? Supply vessels? –​ What proportion of these vessels have not been fishing in your eez? –​ What proportion of these vessels may have been fishing both in your eez and elsewhere? –​ Are foreign-​flagged fishing vessels required to provide information before they enter port? (a) If yes, how long before entry into port are they required to submit the information? (b) If yes, are they required to submit the information on a particular form? –​ Estimate how many port calls are made by foreign-​flagged fishing vessels to your ports annually? –​ Estimate how many port calls are made by foreign-​flagged reefers and supply vessels to your ports annually –​ Are foreign-​flagged fishing vessels and vessels engaged in fishing-​related activities inspected in your ports? If yes, how is the selection made of which vessels to inspect? –​ Does your country refuse entry into port of vessels that are reasonably suspected or known, on the basis of information provided in advance, to have been involved in iuu fishing? –​ Does your country refuse the use of its ports [for purposes of landing, transshipping, packaging or processing of fish that have not previously been landed or for other port services, including, inter alia, refueling and resupplying, maintenance and dry-​docking] to vessels where, after inspection, there are clear grounds for believing that they have engaged in iuu fishing or fishing related activities in support of iuu fishing? –​ Does your country belong to one or more rfmo s? If yes, please indicate which ones. –​ Describe the three most serious problems of iuu fishing in your country. Consider the following potential problem areas: –​ Domestic iuu fishing within your eez

410 Wilson –​ Foreign iuu fishing within your eez –​ iuu fishing vessels flagged to your country fishing on the high seas. –​ Would port State measures be effective in enforcing against such fishing and/​or serve as a deterrent? –​ Would you describe the human capacity of your country to carry out port inspections as adequate or inadequate? If inadequate, is it because: – There are not sufficient inspectors available at the port/​ports designated for purposes of implementing the Agreement and/​or relevant regional standards? – Lack of an adequate legal regime to enable the use of port State measures (i.e., do the laws provide a clear basis for effective inspection and action)? – Insufficient information provided regarding iuu fishing activities? – Lack of training—​training needed for new recruits and retraining for others to accommodate new developments? – Low priority given to port inspection? – Other reasons –​ About the institutional and legal framework: – Is the Government and your Minister supportive of mcs activity? – Do senior government officials have sufficient knowledge of relevant international agreements and standards to guide the development of policy relating to, and implementation of, port State measures? – Is there adequate legal capacity for accommodating international and regional standards on port State measures into national laws –​ Describe any other constraints. –​ Would you describe institutions (laws, regulations and rules, and the bodies established to implement them as adequate or inadequate? If “inadequate,” are the laws/​regulations/​rules within which the inspectors operate sufficient to enable them to inspect and act on the outcome of the inspection effectively? –​ Does the way in which the inspectorate is organized sufficiently facilitate the task of inspecting vessels? If not, please briefly explain how it could be improved. –​ Does a system exist for the collection, storage, analysis and exchange of information relating to Port State Measures and, if so, is it adequate? –​ Does there exist a policy and operational system for the exchange of information with the flag States, rfmo s and other international organizations? –​ What would you regard as the three most important constraints in relation to human capacity for the implementation of port State measures?

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–​ What would you regard as the three most important actions needed to overcome the constraints and strengthen human capacity to implement port State measures—​put in order of priority? Maritime Search and Rescue (sar) Questions and Considerations45 –​ Proper Assumptions? –​ Did we look in the correct places for the correct object? –​ How certain were you of the initial position? –​ How good was the search effort? –​ Was a first light search conducted? –​ Do/​did we have enough assets on scene to adequately cover the area? –​ What assets were used? –​ Did we re-​evaluate leads & clues? –​ Did we review datum calculations? –​ Were all the search areas searched? –​ Were the search variables high enough? (track spacing, sweep width, navigation errors, environmentals, etc.) –​ Did we have reasonable planning scenarios? –​ What other agencies were involved? Did you consider? –​ Did they survive the incident? –​ Could they survive after the incident? –​ How much time has elapsed? –​ On scene conditions? –​ What will the weather be over the next 12 hours? –​ The condition of potential survivors? (Pre-​existing medical conditions or injuries) –​ Survival equipment available? –​ What do the survivability tables/​program say? Next of Kin Notification –​ Has the nok been kept informed? –​ Has the Sector Commander (or other appropriate level) been involved? –​ Has the family been given advanced warning?

45

For the complete uscg checklist on this issue, see Appendix G to COMDTINST M16130.2F; available at:  https://​www.dco.uscg.mil/​Portals/​9/​CG-​5R/​manuals/​COMDTINST%20 M16130.2F.pdf.

412 Wilson Media Interest –​ Is there high or potentially adverse media interest? –​ Is pao [Public Affairs Officers] help needed? –​ Press release/​photos?

Annex D

A Checklist to Support Checklist-​Drafting Efforts46 Development: Do you have clear, concise, objectives for your checklist? Is each item: –​ A critical safety step and in great danger of being missed? –​ Not adequately checked by other mechanisms? –​ Actionable, with a specific response required for each item? –​ Designed to be read aloud as a verbal check? –​ One that can be affected by the use of a checklist? Have you considered: –​ Adding items that will improve communications among team members? –​ Involving all members of the team in the checklist creation process? Drafting: Does the checklist: –​ Utilize natural breaks in workflow (pause points)? –​ Use simple sentence structure and basic language? –​ Have a title that reflects its objectives? –​ Have a simple, uncluttered, and logical format? –​ Fit on one page? –​ Minimize the use of color? Is the font: –​ Upper and lower case text? –​ Large enough to be read easily? –​ Dark on a light background? –​ Are there fewer than 10 items per pause point? –​ Is the date of creation (or revision) clearly marked?

46 Gawande, The Checklist Manifesto, supra, note 9, p. 201.

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Validation: Have you: –​ Trialed the checklist with front line users (either in a real or simulated situation)? –​ Modified the checklist in response to repeated trials? Does the checklist: –​ Fix the flow of work? –​ Detect errors at a time when they can still be corrected? –​ Can the checklist be completed in a reasonably brief period of time? –​ Have you made plans for future review of the checklist?

pa rt 6 Sustainable Fisheries

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­c hapter 18

Combating iuu: the Driving Force behind Development of International Fisheries Law? Kuan-​Hsiung Wang* Abstract Marine fisheries represent a vital component of the world’s economy, environment, marine ecosystem and livelihoods to tens of millions of people. However, in recent years, overwhelming evidence shows that these valuable marine assets are in danger of depletion due to over-​exploitation and illegal fishing activities. It is estimated that the world’s oceans would only reach a healthy condition by 2050 if fisheries reform around the world were sustained moderately, otherwise, the collapse of the world’s ecosystems would be unavoidable. Recognizing the possible crisis of fishery resources, the international community has been trying to address the problem in a variety of ways aiming at combating or deterring the expansion of illegal, unreported and unregulated fishing (iuu) activities. This paper reviews the development of international fisheries law, especially recent instruments and the latest practices, including the Port State Measures Agreement, Voluntary Guidelines on Flag State Performance, Voluntary Guidelines for Catch Documentation Schemes, and European Union iuu Regulation. However, it seems that the development of international fisheries law has been surrounded by the issue of “combating iuu” for the past several decades. The author concludes that the incentives for illegal fishing must be understood and then eliminated.

Keywords IUU fishing  –​regional fisheries management organizations  –​Port State Measures Agreement –​high seas fisheries –​European Union –​international fisheries law

* Professor, Graduate Institute of Political Science, Taiwan Normal University. The author’s PowerPoint is available at https://​colp.virginia.edu/​sites/​colp.virginia.edu/​files/​beijing-​ wang.pdf.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_022

418 Wang i

Introduction

Ocean space is closely related to the life of human beings. The oceans are an important source of food, especially their living resources. They are also one of the main sources of animal protein supply in our diet. Because of the enormous economic interests at stake, it is difficult for those countries who own fishing capacity or have fishery resources to ignore the opportunities to maximize the benefits from the ocean. From the traditional point of view, fishery resources are regarded as common property, that is to say, such resources are not owned by anyone and all owners may use as each owns their interest. Therefore, fishermen are encouraged to catch as much as they can. Especially after the end of the Second World War, with the progress in fishing technology and development in the fishing industry, global catch continued to increase.1 The aforementioned concept of common property has led to competition for catches and, more seriously, disputes over fishing activities between the fishing and the coastal States. Therefore, it is easy to come to the result of the “Tragedy of the Commons”2 that fishing States are operating in “Olympic fishing style” because the goals they are pursuing are “moving faster and catch more”. Much more seriously, illegal fishing makes the situation deteriorate even further. It is believed that some 91 to 93 million tonnes of fish are captured each year. Seafood products are among the world’s most widely traded food commodities, with an export value of $142 billion in 2016. On top of that, Illegal, unreported and unregulated (iuu) fishing is estimated to strip as much as 26 million additional tonnes of fish from the oceans annually, damaging marine ecosystems and sabotaging efforts to sustainably manage fisheries.3 Under such circumstances, to avoid the consequences of fishery resources depletion or collapse (due to only focusing on promoting catches), and, furthermore, to expect sustainable utilization of fishery resources, various conserving and managing measures for fishery resources have been proposed and discussed in different occasions. Many of them have been practiced, of course.

1 The world capture fisheries production has increased from 34,790,181 metric tonnes in 1960 to 93,736,944 metric tonnes in 2016. See World Bank, “World Capture Fisheries Production”, https://​data.worldbank.org/​indicator/​ER.FSH.CAPT.MT?end=2016&start=1960 &view=chart. 2 Garrett Hardin, “The Tragedy of the Commons”, https://​science.sciencemag.org/​content/​162/​ 3859/​1243.full. 3 Eco-​Business, “Tracking fish ‘from sea to plate’ to keep illegal catches out of global supply chains”, http://​www.eco-​business.com/​news/​tracking-​fish-​from-​sea-​to-​plate-​to-​keep-​illegal-​ catches-​out-​of-​global-​supply-​chains/​, 13 April 2017.

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However, if we examine the situation from the perspectives of globalization, it is understandable that economic interests might be the driving force behind the over-​utilization of fishery resources. ii

Efforts to Deal with Illegal Fishing

The United Nations has noted the pressure from overfishing which might cause the collapse of fishery resources. There are a series of documents adopted to mitigate such pressure. The 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas4 might be the first document to bring forth the perception of conserving high seas fishery resources.5 In the 1982 United Nations Convention on the Law of the Sea (unclos),6 several fishery regulations were adopted for fishing activities in the exclusive economic zone and on the high seas.7 Moreover, the 1992 Declaration of Cancun declared that the freedom of fishing on the high seas must be balanced with the obligation to cooperate with other states to ensure conservation and rational management of the living resources, and called upon states to draft an international Code of Conduct for Responsible Fishing.8 Subsequently, based on the appeal of drafting a Code of Conduct for Responsible Fishing, the Food and Agriculture Organization of the United Nations (fao) adopted the Code of Conduct for Responsible Fisheries in 1995.9 Although the nature of this Code of Conduct is not legally binding, the perception of taking responsibility to conserve and manage fishery resources for the purpose of sustainability was forming. However, at the same time, the pressure caused by illegal fishing activities has not been alleviated. iuu fishing causes collapse of certain fish stocks and, even worse, damages the efforts of recovering depleted stocks. 4 UN, “Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas”, https://​www.gc.noaa.gov/​documents/​8_​1_​1958_​fishing.pdf. 5 For example, Article 1(1) provides: “All States have the right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas”. 6 UN, “1982 United Nations Convention on the Law of the Sea”, http://​www.un.org/​depts/​los/​ convention_​agreements/​texts/​unclos/​unclos_​e.pdf. 7 For example, Article 61 on conservation of the living resources in the eez and Article 117 on the duty to adopt measures for the conservation of the living resources of the high seas. 8 “Declaration of the International Conference on Responsible Fishing”, Cancun, Mexico, 6–​8 May 1992, http://www.uilapesca.eu/public/eventi/20121201/imm/pdf/05 FAO 1992 Cancun Declaration on Responsible Fishing.pdf. 9 fao, “Code of Conduct for Responsible Fisheries”, http://​www.fao.org/​3/​a-​v9878e.htm.

420 Wang Apart from the aforementioned documents, either legally or non-​legally binding, there are other international documents noting concerns about the possible risk of deterioration on the fishery resources. From 26 August to 4 September 2002, the World Summit on Sustainable Development (wssd) was held in Johannesburg, South Africa by the United Nations. Several issues concerning sustainable fisheries was discussed in the Summit, such as the importance of aquatic products in global food security, the impacts of overfishing for sustainable utilization, and fao’s possible action plan to eliminate iuu illegal fishing activities. The Summit adopted the Johannesburg Plan of Implementation,10 in which for the purposes of ensuring the sustainable development of the oceans, effective coordination and cooperation is required, including at the global and regional levels, between relevant bodies, and actions at all levels.11 The Plan of Implementation even sets a timetable to “maintain or restore stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and where possible not later than 2015”.12 This timetable expresses the sense of urgency to manage fishery resources among those participating States at that time. Understanding the aforementioned urgency of sustainable fisheries issues, some of the regional fisheries management organizations (rfmo s) also took some actions to assist in reaching the goals. According to Article 118 of the unclos, States fishing on the same living marine resources or in the same area of the high seas shall cooperate in the conservation of these resources. With respect to straddling fish stocks and highly migratory species on the high seas, such obligation is supplemented with the special obligations of the relevant coastal States and states fishing for these stocks in adjacent areas of the high seas to co-​operate for the conservation of these stocks.13 Taking into consideration the practices in recent years from States and the establishment of rfmo s, it is accepted that these obligations have become part of customary international law, especially when such matters are linked with environmental protection issues.14 10 11 12 13

14

UN, “Plan of Implementation of the World Summit on Sustainable Development”, http://​ www.un.org/​esa/​sustdev/​documents/​WSSD_​POI_​PD/​English/​WSSD_​PlanImpl.pdf. Ibid., para. 30. Ibid., para. 31(a). unclos, Articles 63(2) and 64(1). Especially for Article 64(1), it is provided that those States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area. Rosemary Gail Rayfuse, Non-​Flag State Enforcement in High Seas Fisheries (The Netherlands: Martinus Nijhoff Publishers, 2004), pp. 43–​44; Tore Henriksen, Geir Honneland, and Are

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Being the initiator of managing global fisheries so that utilization of the resources could be responsible and sustainable, the fao held a Ministerial Meeting in March 1999 and adopted the “The Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries”.15 The Ministerial Meeting addressed issues such as that world’s major marine fishery resources were subject to overfishing, destructive and wasteful fishing practices and excess capacity, resulting in reduced yields and economic returns. The Ministers called for “a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying ‘flags of convenience’ ” through coordinated efforts by States, fao, regional fishery management bodies and other relevant international agencies.16 A series of meetings convened to deal with illegal fishing matters from 2000. First of all, from 15 to 19 May 2000, fao organized an Expert Consultation on Illegal, Unreported and Unregulated Fishing in Sydney.17 Then Technical Consultations on Illegal, Unreported and Unregulated Fishing were held from 2 to 6 October of the same year in Rome.18 This was followed by the next Expert Consultation meeting from February 22 to 23, 2001 that adopted the “Draft International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing” (Draft ipoa-​i uu). The draft was adopted by consensus at the 24th fao Committee on Fisheries (cofi) from February 26 to March 2, 2001. The International Plan of Action (ipoa-​i uu) was approved by the 120th fao Council on 23 June 2001. The purpose of the ipoa-​i uu is to provide comprehensive, effective and transparent measures to all countries,

15 16 17 18

Sydnes, Law and Politics in Ocean Governance: The UN Fish Stocks Agreement and Regional Fisheries Management Regimes (The Netherlands: Martinus Nijhoff Publishers, 2006), p. 15. Also the discussion in fao, Deep Sea 2003: Conference on the Governance and Management of Deep-​sea Fisheries, Part  1:  Conference reports, 1–​5 December 2003, Queenstown, New Zealand (Rome:  fao, 2005), pp.  421–​422; Michael W.  Lodge, et. al., Recommended Best Practices for Regional Fisheries Management Organizations: Report of an independent panel to develop a model for improved governance by Regional Fisheries Management Organizations (London: The Royal Institute of International Affairs, 2007), pp. 70–​71. fao, “The Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries”, http://​www.fao.org/​docrep/​005/​X2220E/​X2220E00.HTM. Ibid., para. 12(j). fao, Report of the Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with fao, Sydney, Australia, 15–​19 May 2000, http://​www.fao.org/​docrep/​005/​Y3274E/​y3274e02.htm. fao, Report of the Technical Consultation on Illegal, Unreported and Unregulated Fishing, Rome, Italy, 2 -​6 October 2000, http://​www.fao.org/​docrep/​meeting/​005/​x8623e.htm.

422 Wang including fishing entities, to eliminate iuu fishing activities. The Committee called upon all countries to adopt ipoa-​i uu as soon as possible before 2004 to develop a country-​based version of the action plan and related specifications to effectively combat iuu fishing activities.19 It is clear that the increasing number of illegal fishing practices have affected the outcomes of conservation measures for fishery resources and for the efforts of recovering depleted stocks. This situation might lead to reduced opportunities for social and economic developments. Moreover, issues about food supply and security as well as marine living resources protection would confront adverse challenges. Therefore, fao calls upon all States to implement ipoa-​i uu and to apply it to the cooperation between States and/​or rfmo s so that combating illegal fishing activities could be effectively addressed. iii

Definition of iuu

The term iuu was first used in the meeting of the Commission for the Conservation of Antarctic Marine Living Resources (ccamlr) in 1997. It originally referred to the illegal fishing for Toothfish in the camlr Convention Area. Such illegal fishing concerned non-​compliance of fishing activities by Parties and non-​Parties, and the connotation later expanded to fishing activities involving illegal, unreported and unregulated fishing at sea.20 In a 1998 ccamlr meeting, the Commission noted that some Member States of ccamlr were involved in iuu fishing activities. As a result of this situation, all Member States were encouraged to develop national level measures for responsible fisheries. The Commission then adopted a resolution to promote measures by governments to ensure that nationals under their jurisdiction do not engage in iuu fishing activities.21 With the widespread use of advanced fishing techniques in the high seas area, competition between fishing vessels chasing for increasing catches with high economic value becomes an inevitable trend. This would result in illegal fishing in the high seas area and in some exclusive economic zones of coastal States, especially where law enforcement is weak. It is important to understand 19 20 21

fao, “International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing”, http://​www.fao.org/​3/​y1224e/​Y1224E.pdf. Denzil G. M. Miller, Patagonian Toothfish: The Storm Gathers, OECD Fish Piracy: Combating Illegal, Unreported and Unregulated Fishing, 2004, pp. 105, 107. Diane Erceg, “Deterring IUU Fishing through State Control over Nationals”, Marine Policy, Vol. 30, No. 2, 2006, pp. 173, 175.

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that iuu fishing activities do not occur only in specific geographic sea areas, their scope also appear in global fish commodities trade. The impact of illegal fishing emerges in an endless stream. iuu fishing practices may result in the decline or depletion of a fish stocks, or in adverse impacts on efforts to recover depleted stocks. Also, it will cause damage to the conservation of marine living resources. Most seriously, it will have an impact on maintaining the diversity of marine living resources. In other words, those who engaged in iuu fishing are pursuing economic benefits and unwilling to abide by the regulations for responsible fishing. These illegal fishing operators enjoy a competitive advantage compared to law-​ abiding fishermen, although such competition is unfair and improper. Many countries depend on maritime resources for their means of livelihood, such as small islands and developing countries. iuu fishing practices will definitely have a negative influence on the social structure and economic development of such dependent states whether in the long-​term or the short-​term. Just as Mr. Árni M. Mathiesen, Assistant Director-​General of the fao Fisheries and Aquaculture Department, mentioned about the impact of illegal fishing: “it is believed that iuu fishing has escalated over the past 20 years, especially in the high seas, and is now estimated to amount to 11–​26 million tonnes of fish harvested illicitly each year, worth between $10 and $23 billion”.22 Owing to the variability of iuu fishing activities, it is necessary to define iuu for the purpose of elimination. There is a clear definition of iuu fishing practices within the ipoa-​i uu.23 This is a well-accepted document that defines iuu fishing activities clearly and is cited by other relevant international instruments. However, it is noteworthy that the nature of ipoa-​i uu is voluntary

22 23

fao, “Countries Crack Down on Illegal, Unreported and Unregulated Fishing”, 11 June 2014, http://​www.fao.org/​news/​story/​en/​item/​233912/​icode/​. Definition on iuu in the ipoa-​i uu is provided in Article 3: Illegal fishing refers to activities: 1. conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations; 2. conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or 3. in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization. Unreported fishing refers to fishing activities: 1. which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or

424 Wang which could be treated as a soft law.24 Moreover, in order to reduce its implication on certain issues which might cause other connotations, the ipoa-​i uu only responds to fishery issues and nothing in it prejudices the positions of States in other fora.25 As for the objective of the ipoa, it is to prevent, deter and eliminate iuu fishing by providing all States with comprehensive, effective and transparent measures by which to act, including through appropriate regional fisheries management organizations established in accordance with international law.26 iv

International Fishery Instruments Developed after ipoa-​i uu

Agreement on Port State Measured to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (psm Agreement) To facilitate the implementation of ipoa-​i uu, fao convened an Expert Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing in Rome in November 2002 to review the works on combating iuu fishing activities and discuss the possibility of concluding port state measures to combat iuu fishing.27 In 2004, the fao Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing was held. It was convened on the recommendation of the 2003 fao Committee on Fisheries (cofi). The Technical Consultation approved iv.1

24 25 26 27

2. undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization. Unregulated fishing refers to fishing activities: 1. in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or 2. in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law. ipoa-​i uu full text, see http://​www.fao.org/​3/​a-​y1224e.pdf. ipoa-​i uu, Article 4. ipoa-​i uu, Article 5. fao, “About ipoa-​i uu”, http://​www.fao.org/​fishery/​ipoa-​iuu/​about/​en. fao, Report of the Expert Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, Rome, 4–​6 November 2002, http://​www.fao.org/​ fishery/​docs/​document/​Ec-​OpenRegistries/​PortState-​R692-​report_​E.pdf.

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a Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, and its nature is voluntary.28 Subsequently, after an intense round of negotiations extending from June 2008 to August 2009, the fao Conference on 22 November 2009 approved the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (psm Agreement).29 The psm Agreement will enter into force 30 days after the date of the deposit of the 25th instrument of ratification, acceptance, approval or accession with the Depositary, the Director-​General of fao.30 This number was reached on 6 May 2016 and, therefore, the Agreement entered into force on 5 June 2016. It is the first international instrument with legally binding force to combat iuu fishing. As of September 2018, instruments to adhere to the Agreement had been deposited by 55 States and one Member Organization (EU).31 According to the Agreement, when a Party has sufficient proof that a vessel seeking entry into its port has engaged in iuu fishing or related fishing activities in support of such fishing, the Party shall deny that vessel entry into its ports, or to use its ports for landing, transshipping, packaging, and processing of fish and for other port services including, inter alia, refueling and resupplying, maintenance and drydocking.32 These measures will effectively reduce the incentive for perpetrators to continue to operate. The psm Agreement makes up part of the insufficiencies in the 1982 unclos, which was limited in its regulation of port State jurisdiction. There are several instruments relating to fishing regulations and port States responsibilities to strengthen the unclos. The 1995 Agreement to Promote Compliance with International Conservation and Management by Fishing Vessels on the High Seas (Compliance Agreement) is one of them.33 The Compliance Agreement pays attention to the regulation of fishing operations in the high seas for the practice of flagging or reflagging fishing vessels as a means of avoiding 28 29 30 31 32 33

fao, “Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing”, http://​www.fao.org/​3/​a-​a0985t.pdf. fao, “Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing” (psm Agreement), http://​www.fao.org/​3/​a-​ i5469t.pdf. psm Agreement, Articles 29(1) and 36. fao, “Introduction to psm Agreement”, http://​www.fao.org/​fileadmin/​user_​upload/​legal/​ docs/​037s-​e.pdf. psm Agreement, Article 9. fao, “Agreement to Promote Compliance with International Conservation and Management by Fishing Vessels on the High Seas, 1995”, http://​www.fao.org/​docrep/​ MEETING/​003/​X3130m/​X3130E00.HTM.

426 Wang compliance with international conservation and management measures for living marine resources, and the failure of flag States to fulfil their responsibilities with respect to fishing. Also, the 1995 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 (UN Fish Stocks Agreement) emphasizes conservation and management measures of the exclusive economic zone and the high seas.34 In addition to those legally binding agreements, there are voluntary guidelines and international action plans adopted, such as those mentioned in the previous section, the 1995 Code of Conduct for Responsible Fisheries and the 2001 ipoa-​i uu. These agreements all underline the importance of port State measures and plans to serve as references for port States to establish proper management systems. The first meeting of the Parties to the psm Agreement was held in Oslo, Norway, from 29 to 31 May 2017. A number of issues were identified, such as requirements of the Agreement; guidance on transmittal; electronic exchange and publication of information; guidance on regular and systematic monitoring and review of the implementation of the Agreement; defining the responsibilities of relevant countries and regional fisheries management organizations and other international agencies; and how to ensure appropriate information exchange and dissemination. The technical requirements for enforcement in developing countries was also one of the topics of the meeting. It is necessary to assess and enhance financial as well as technical support required for carrying out port State responsibilities effectively for small island developing States as implementation is particularly difficult for them.35 However, is it possible to give iuu fishing a strong strike through the psm Agreement mechanism when it has entered into force? The answer to this question often depends on whether the Parties to this Agreement could implement the provisions of the Agreement effectively. For example, consider the case where a fishing vessel engaged in illegal fishing before but still applies for entry into the port. Shall the law enforcement personnel of that port State

34

35

UN, “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”, https://​ documents-​dds-​ny.un.org/​doc/​UNDOC/​GEN/​N95/​274/​67/​PDF/​N9527467.pdf. fao, Report of the First Meeting of the Parties to the Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing, Oslo, Norway, 29–​31 May 2017, fao Fisheries and Aquaculture Report, FIAP/​R1211(En), http://​ www.fao.org/​3/​a-​i7909e.pdf.

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deny the access of that vessel to unload catch? In the case of a least developed port State, will bribery expose loopholes in law enforcement, so that catches obtained through illegal fishing could have opportunities and channels for unloading and trafficking? These issues are critical to the possible success of the psm Agreement. To complete law enforcement, the Parties clarified a number of issues concerning the Agreement implementation in a meeting of May 2017. These included the administration of a fund to assist developing countries to strengthen their monitoring, control and surveillance systems (mcs), as well as improving inter-​departmental cooperation and strengthening institutionalized structures. That is to say, the flag State, the coastal State and the port State must work in close cooperation. Parties also agreed that to eliminate iuu fishing, all States must track the operations of vessels flying their flags, and coastal States have to monitor their waters. Furthermore, both flag States and coastal States must verify and exchange information with port States.36 iv.2 2014 Voluntary Guidelines on Flag State Performance It is a customary international law that the flag State has jurisdiction over ships flying its flag under the principle of flag State jurisdiction. Therefore, the flag State is also responsible for the fishing vessels’ behavior while flying its flag on the high seas. However, certain ship operators have their vessels registered in “open-​ registry” countries which are not Parties to the related rfmo s or do not exercise jurisdiction over those fishing vessels when they conduct illegal fishing. This encourages fishing vessels to violate management measures of the rfmo s or the coastal States. Therefore, one of the reasons for iuu fishing is because the flag State is not willing to or not able to exercise its jurisdiction to control their fishing vessels. On 11 June 2014, the 31st Session of the fao Fisheries Committee was held in Rome and adopted the “Voluntary Guidelines for Flag State Performance”,37 which was designed to strengthen flag State control and prevent fishing vessels flying their flag from engaging in iuu fishing activities. Árni Mathiesen, fao Assistant Director-​General for Fisheries and Aquaculture, stated that the 36 The pew Charitable Trusts, “The Port State Measures Agreement:  From Intention to Implementation”, 12 April 2018, http://​www.pewtrusts.org/​en/​research-​and-​ analysis/​issue-​briefs/​2018/​04/​the-​port-​state-​measures-​agreement-​from-​intention-​to-​ implementation#0-​overview. 37 fao, “Voluntary Guidelines on Flag State Performance”, http://​www.fao.org/​3/​a-​ i4577t.pdf.

428 Wang adoption of the “Voluntary Guidelines for Flag State Performance” was a major breakthrough and would be a valuable tool in efforts to prevent, deter and eliminate iuu fishing.38 It is necessary for a flag State to keep fishing records of its fishing vessels, such as information about the fish stocks caught and the fishing gear used. However, those engaged in illegal fishing activities have attempted to evade such control measures by way of “flag hopping”. This is the practice of repeated and rapid changes of a fishing vessel’s flag for the purposes of circumventing conservation and management measures or provisions adopted at the national, regional or global level or of facilitating non-​compliance with such measures. Moreover, flag States should be responsible for this practice as well. Some are unable or unwilling to assume responsibility for the vessels it flags due to the lack of enforcement personnel or facilities. This allows vessels to avoid compliance with conservation and management measures. To prevent such “flag hopping”, the “Voluntary Guidelines for Flag State Performance” suggests expanding cooperation on information exchange so that the flag State could take all practicable steps, including the denial to a vessel of the entitlement to fly that State’s flag.39 In addition, the “Voluntary Guidelines for Flag State Performance” advises States to strengthen international cooperation and to assist developing countries to implement their flag States’ responsibilities.40 iv.3 2017 Voluntary Guidelines for Catch Documentation Schemes It is a difficult to crack down on iuu fishing activities due to its changeable character. However, as mentioned above there are several international instruments, either legally binding or voluntary, that have been adopted to combat iuu. Likewise, there are also certain policy means that have been served to fulfill the same goal. These include improving the administrative efficiency of the government, drawing up Unique Vessel Identifier (uvi), emphasizing the effectiveness of law enforcement and curbing administrative corruption. Moreover, it might be a good way to reduce iuu fishing by increasing the costs of conducting such illegal activities. For example, increasing risk cost is one of them. This could be reflected in the “Voluntary Guidelines for Catch Documentation Schemes” (vgcds). fao adopted the vgcds in July 2017 at its 40th session. The Guidelines attempt to curb illegal fisheries effectively through tracing fish from their point 38 39 40

fao, “International Guidelines Take Aim at Illegal Fishing”, http://​www.fao.org/​news/​ story/​en/​item/​170570/​icode/​. fao, “Voluntary Guidelines for Flag State Performance”, supra note 37, paras, 14–​23. Ibid., paras. 48–​54.

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of capture through the entire supply chain to stop illegally caught fish from entering the marketplace. In other words, it will be a system to trace fish products “from sea to plate”.41 The approach for the Catch Documentation Scheme (cds) is to make sure the fish products are legally captured in compliance with related legal regulations, and, most importantly, they are registered. Therefore, whether in domestic or international processing and marketing, the original certificate documents are attached to the fish products all the way, and only products with valid documents could be exported or traded. The vgcds is the first international policy document with comprehensive elaboration about catch documentation schemes. The objective of the vgcds is to provide assistance to States, regional fisheries management organizations, regional economic integration organizations and other intergovernmental organizations when developing and implementing new cds, or harmonizing or reviewing existing cds.42 More specifically, cds is a trade-​related measure that monitors and determines throughout the fish products supply chain whether the fish originate from catches consistent with applicable national, regional and international conservation and management measures, established in accordance with relevant international obligations.43 The vgcds is believed to be able to further prevent illegally caught fish from entering domestic or international markets.44 A number of regional organizations or countries have adopted such a catch registration system as the basis for the management of imported fishery products and have achieved considerable results. For example, the EU has adopted a catch registration system since 2010, covering all fish imports from other countries. The United States announced the “Seafood Import Monitoring Program” (simp) in 2016. And, asean adopted the voluntary asean “Catch Documentation Scheme for Marine Capture Fisheries” in 2017 to enhance intra-​regional and international trade of fish and fish products.45 41 42 43 44 45

Eco-​Business, “Tracking fish ‘from sea to plate’ to keep illegal catches out of global supply chains”, supra note 3. fao, “Voluntary Guidelines for Catch Documentation Schemes”, http://​www.fao.org/​ iuu-​fishing/​international-​framework/​voluntary- ​guidelines-​for-​catch-​documentation-​ schemes/​en/​. Ibid. fao, “Voluntary Guidelines for Catch Documentation Schemes”, supra note 42. Chris Loew, “World Tuna Conference:  fao Providing Powerful Instruments to Fight iuu Fishing”, Saving Seafood, https://​www.savingseafood.org/​science/​world-​tuna-​ conference-​fao-​providing-​powerful-​instruments-​to-​fight-​iuu-​fishing/​ 5 Jun. 2018. For US Seafood Import Monitoring Program (simp), US National Ocean Council Committee on iuu Fishing and Seafood Fraud, “US Seafood Import Monitoring Program,

430 Wang iv.4 European Union: 2010 eu iuu Regulation The EU pays great attention on the environmental and socio-​economic impacts generated from iuu fishing. According to statistics, it is estimated that iuu practices amount to approximately 10 billion Euros every year worldwide representing 19% of the worldwide reported value of catches. Also, in terms of weight, about 11 million tonnes to 26 million tonnes of catches are from illegal fishing, accounting for 15% of the total global catch. iuu fishing also constitutes one of the most serious threats to the sustainability of living resources and marine biodiversity, and even damages the marine environment by overfishing and irresponsible fishing practices.46 Taking the statistics of 2015 as an example, the value of imported fish reached eur 22.3 billion euros. This was mainly determined by imports of cod, shrimps and salmon. And per capita fish consumption per year increased to 25.5 kg in 2014.47 These data demonstrate that the EU is an important market for global fish products trade. Under the consideration that iuu fishing might endanger the fundamental basis of the EU Common Fishery Policy as well as impair the EU’s efforts toward better marine management, the European Council adopted the Council Regulation No. 1005/​2008. This establishes a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (eu iuu Regulation) on 29 September 2008, which entered into force on 1 January 2010.48 On the issue of iuu fishing, the eu iuu Regulation adopts the definition of ipoa-​i uu so that it will be consistent with globally accepted standards.49 Only fish products validated as legal by the competent flag State or exporting state

h t t p s : / / ​ w w w. i u u f i s h i n g . n o a a . g o v / ​ R e c o m m e n d a t i o n s a n d A c t i o n s /​ RECOMMENDATION1415/​FinalRuleTraceability.aspx 2 August 2018. 46 EU, Handbook on the practical application of Council Regulation (EC) No. 1005/​2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, Version 1 -​10/​2009, Ref: Mare A4/​PS D (2009) A/​12880, https://​ec.europa.eu/​fisheries/​sites/​fisheries/​files/​docs/​body/​handbook_​ original_​en.pdf; EU, “Question and Answers on the EU’s fight against illegal, unreported and unregulated (IUU) fishing”, 23 May 2017, https://​ec.europa.eu/​fisheries/​question-​ and-​answers-​eus-​fight-​against-​illegal-​unreported-​and-​unregulated-​iuu-​fishing-​5_​et. 47 EU, The EU fish market  –​2016, https://​ec.europa.eu/​fisheries/​eu-​fish-​market-​2016-​ edition_​en, visited on 2 August 2018. Compared with world per capita fish consumption of 19.7 kg in 2013, the EU obviously is highly dependent on fish supply. fao, 2016 The State of World Fisheries and Aquaculture (Rome: fao, 2016), p. 71. 48 EU, Council Regulation (EC) No 1005/​2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (eu iuu Regulation), https://​publications.europa.eu/​en/​publication-​detail/​-​/​ publication/​3d492619-​4162-​4884-​ae59-​ebb1352796bc/​language-​en. 49 eu iuu Regulation, Articles 2 and 3.

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can be imported or exported from the EU. The iuu Regulation can take steps against States that do not pay attention to illegal fishing activities. For this purpose, the EU uses a “carding process” to identify the performance on deterring iuu fishing of the third countries. The EU’s procedure for identifying non-​cooperating third (non-​EU) countries in the fight against illegal fishing, “carding process”, is a core component of the eu iuu Regulation, which has had significant positive results. The carding process begins with the initiation of dialogue by the EU with a country. During this period of dialogue, the Commission gathers relevant information from a range of sources, in order to evaluate the country’s compliance with its international fisheries obligations and to assess the systems in place to combat iuu fishing. Depending on the results of this assessment and subsequent efforts by the country to undertake necessary reforms, the Commission may decide to issue an official warning to the country (yellow card or “pre-​identification”),50 which may be followed by formal identification as a non-​cooperating country (red card),51 or lifting of the pre-​identification (green card),52 depending on the progress made by the country. The granting of a red card consists of two distinct steps. First, the Commission identifies the country as non-​cooperating in the fight against iuu fishing, resulting in a ban on import of the country’s seafood products regulated by the eu iuu Regulation into the EU. Second, the Council of the EU adopts the final decision to list the country as non-​ cooperating, resulting in a number of restrictive measures, including a prohibition on EU vessels operating in the country’s waters.53 Obviously, the ban on importing seafood products into the EU might be the most serious measure and would be the most efficient measure to combat iuu fishing, because this concerns huge economic loss.

50 51 52 53

Taiwan (October 2015), Thailand (April 2015), and Vietnam (October 2017)  received official warnings. See https://​ec.europa.eu/​fisheries/​sites/​fisheries/​files/​illegal-​fishing-​ overview-​of-​existing-​procedures-​third-​countries_​en.pdf. For example, Cambodia was issued “yellow card” in November 2012 and was identified as “red card” in March 2014. Ibid. For example, Korea was revoked pre-identification in April 2015; Thailand was revoked in January 2019; and Taiwan was revoked in June 2019. Ibid. The Pew Charitable Trusts, “Improving Performance in the Fight against Illegal, Unreported and Unregulated (IUU) Fishing”, Issue Brief, April 2016, http://​www.iuuwatch.eu/​wp-​ content/​uploads/​2015/​06/​3rdCountryCardingGuidelinesReport_​FINAL.LOW_​.pdf.

432 Wang v

Conclusion

Fishing is a harvesting activity to support food supply for a long time in human history. However, this activity has caused problems of resources exhaustion in recent decades. This situation is much more serious because of iuu practices due to absence of proper management mechanisms. Economic benefits might be one of the main reasons behind the illegal fishing, which is driven by the interests of the fish products trade and perpetrators who might completely ignore the protection of marine resources and environment. The United Nations has taken the lead to conclude a number of instruments for combating and eliminating iuu fishing, including both hard-​law and soft-​ law. Nevertheless, from the abovementioned various instruments, it can be seen that each one has its particular purpose in deterring certain illegal fishing activity. For example, the 2001 ipoa-​i uu is for combatting illegal fishing activities as well as establishing a basic operational regulation for combating iuu; the 2009 psm Agreement is for strengthening port States’ capability to deny some iuu fishing vessels entering into port, when that vessel has engaged in iuu fishing or related fishing activities in support of such fishing; the 2014 Voluntary Guidelines for Flag State Performance is for strengthening a port State’s control the fishing vessels flying its flag; the 2017 Voluntary Guidelines for Catch Documentation Schemes is for stopping illegal catches entering into the global supply chain. Therefore, it is clear that for the past several decades the evolution and formation of the international fisheries law is surrounded by the issue of “combating iuu”. In addition, this paper emphasizes that to achieve effective progress in combating and deterring illegal fishing, the incentive for illegal fishing should be understood and then eliminated. The eu iuu Regulation is an approach of sanction by way of trade measures. EU sanctions have prevented illegally captured fish products from entering into the EU. This will not only block the channel for illegal catches trade, but also raise awareness for the relevant countries to improve their domestic laws and policies. Perhaps this is one of the most appropriate approaches for combating iuu fishing and it deserves further consideration.

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What’s in a Name: the Importance of Distinguishing between “Fisheries Crime” and iuu Fishing Kathryn Youel Page and Alexis J. Ortiz1 Abstract This paper examines the conflation between “fisheries crime,” a term that is increasingly being used in international fora, and illegal, unreported, and unregulated (iuu) fishing. “Fisheries crime” obscures the different legal responses necessary to address fisheries violations (as opposed to crimes that may be associated with iuu fishing), focuses on illegal fishing over unreported and unregulated fishing, and risks moving primary responsibility for addressing iuu fishing on the international level away from Regional Fisheries Management Organizations (rfmo s) with expertise in fisheries management. Ultimately, this paper concludes that the use of “fisheries crime” to encompass and expand the concept of iuu fishing is counterproductive to efforts to understand and address iuu fishing in an international fisheries management context.

Keywords illegal, unreported, and unregulated fishing –​fisheries crime –​regional fisheries management –​ fisheries –​ crime

Through the years since the entry into force of the U.N. Fish Stocks Agreement in 2001, States have worked steadily to develop innovative ways to address illegal, unreported, and unregulated (iuu) fishing, simultaneously exploring avenues at the domestic, regional, and international levels. The increased 1 Kathryn Youel Page is the Assistant Legal Adviser for Oceans and International Environmental and Scientific Affairs, Office of the Legal Adviser, at the United States Department of State. Alexis J. Ortiz is an Attorney Adviser with the Office of the Legal Adviser, also at the Department of State. The views expressed in this paper are the authors’ own and do not necessarily reflect those of the US government. PowerPoint available at https://​colp.virginia.edu/​sites/​ colp.virginia.edu/​files/​beijing-​youel-​page.pdf.

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attention on combatting iuu fishing is well deserved. From any standpoint (that of financial revenue, employment and economic development, or food security), sustainable fisheries management is a crucial area for international collaboration.2 In this regard, recent developments such as the entry into force of the Port State Measures Agreement;3 the launch of the Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels;4 and expanded seafood traceability programs5 are laudable standouts. In the course of these efforts, some lack of clarity has emerged surrounding terminology, with States and international organizations increasingly using broader, more amorphous terms to encompass not only iuu fishing, but also a range of ancillary offenses, grouping them together under the category of “fisheries crime.” This nomenclature has been employed to refer to everything from document forgery and tax fraud to human trafficking. This lack of clarity has effects that extend beyond the merely theoretical. Unlike the rubric outlined for activities that constitute iuu fishing, resorting to a looser, less-​defined criminal framework treats the underlying fishing violations themselves (such as exceeding catch limits or fishing without a permit), as well as their impact on conservation and management of fish stocks, as an afterthought. This paper argues that the use of “fisheries crime” to encompass and expand the concept of iuu fishing is counterproductive to efforts to understand and address iuu fishing in an international fisheries management context. At the international level, organizations that are set up to focus on fisheries management are well-​equipped to address iuu fishing, but do not often have the mandates or the capacity to address transnational organized crime. As a term, fisheries crime is ambiguously defined and overly broad, making a common understanding of and approach to the problem difficult at best, particularly in light of the different legal responses that are often required for iuu fishing

2 See, e.g., Food and Agriculture Organization of the United Nations, The State of World Fisheries and Aquaculture: Meeting the Sustainable Development Goals 2, 2018 (reporting, inter alia, a total first sale value of fisheries and aquaculture production in the hundreds of billions of dollars, and that in 2015 “fish provided about 3.2 billion people with almost 20 percent of their average per capita intake of animal protein”). 3 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, opened for signature Nov. 22, 2009, 129 Stat. 664 (entered into force June 5, 2016)  [hereinafter psma], available at http://www.fao.org/port-state -measures/resources/detail/en/c/1111616/. 4 Food and Agriculture Organization of the United Nations, The Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels, http://​www.fao.org/​global-​record/​information-​system/​en/​. 5 See, e.g., Seafood Traceability Program, 50 C.F.R. § 300.324 (2018).

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versus criminal activities, even activities that may have links to the fishing industry.6 Overemphasizing criminal activity can also have the erosive effect of either conflating the different classes of illegal, unreported, and unregulated fishing, or cutting out the second and third categories altogether. Finally, a full pivot to fisheries crime language threatens to move the capacity for an international response to these actions out of the ambit of relevant regional fisheries management organizations (rfmo s), which focus on applying the best available science to conservation and sustainable use of fish stocks, and into organizations whose area of specialty is organized crime. In sum, “fisheries crime” is a term that is both over-​and under-​inclusive when applied in the context of fisheries management and marine conservation. There is no universally accepted definition of fisheries crime, adding to the difficulty of adapting this phrase for use on the international stage. The U.N. Office on Drugs and Crime (unodc) concedes fisheries crime is “an ill-​defined legal concept referring to a range of illegal activities in the fisheries sector,” including “illegal fishing, document fraud, drug trafficking, and money laundering.”7 unodc also variously mentions component elements such as trafficking in explosives, identity fraud, marine pollution, murder, large-​scale tax evasion, and money-​laundering, noting that financial investigation is thus a key tool for responding to such crimes.8 In a similar vein, interpol’s Project Scale posits that interpol “looks at all types of illegality and criminality which facilitate or accompany illegal fishing activities but reach beyond the traditional definition of illegal fishing. These associated criminal activities may include fraud, avoidance of taxes and handling of stolen goods, corruption, money laundering, document falsification, drug trafficking, and human trafficking.”9 The advantage to introducing “fisheries crime” as a sweeping catchall is that it allows any and all facets of an illegal fishing operation to be considered by law enforcement organizations. The disadvantage to this terminology is that it is broad enough to run the risk 6 In this regard, see the 2017 UN General Assembly resolution on sustainable fisheries, which noted “the concerns about possible connections between transnational organized crime and illegal fishing in certain regions of the world” and encouraged further study, “bearing in mind the distinct legal regimes and remedies under international law applicable to illegal fishing and transnational organized crime.” G.A. Res. 72/​72, ¶ 98, U.N. Doc. A/​RES/​72/​72 (Dec. 5, 2017). 7 U.N. Office on Drugs and Crime, Fisheries Crime Fact Sheet 2, https://​ www.unodc.org/​unodc/​about-​unodc/​campaigns/​fisheriescrime.html. 8 Id. at 4. 9 INTERPOL, Project Scale, https://​www.interpol.int/​en/​Crime-​areas/​Environmental-​ crime/​Projects/​Project-​Scale.

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of being meaningless, particularly for purposes of marine conservation and sustainable fisheries management. Part of the problem may be that the definition of iuu fishing itself is already quite broad, without shoehorning on additional behaviors. Illegal fishing activities are those that contravene applicable laws and regulations. This can mean that they are conducted in waters under the jurisdiction of a State without the permission of that State or that they violate that State’s laws, or that they are conducted in contravention of international obligations such as conservation and management measures adopted by relevant rfmo s.10 Unreported fishing activities are either not reported, or are misreported, to relevant authorities (including, where applicable, rfmo s) in contravention of laws, regulations, or reporting procedures.11 Unregulated fishing can either occur in areas, or for fish stocks, for which there are no applicable conservation and management measures, where those activities are inconsistent with State responsibilities under international law; or, in an area managed by an rfmo, where vessels without nationality or flying the flag of a non-​party to that rfmo, where those fishing activities are inconsistent with that rfmo’s conservation and management measures.12 While there is some natural overlap in responses to address the different classes of iuu fishing, there are also differences in approach depending on the underlying aspects of iuu fishing being addressed. For example, illegal fishing may ideally be targeted by high seas boarding and inspection regimes and maritime law enforcement cooperation, while catch resulting from unreported or misreported fishing may be legitimately excluded from markets through seafood traceability programs or effective Port State measures. Unregulated fishing, in contrast, may especially benefit from pushes to encourage non-​party States to join rfmo s and other international bodies, combined with effective monitoring and control by members of that rfmo. At the same time, it is helpful to picture iuu fishing as a Venn diagram, where one fishing trip may easily fall under two or even all three definitions, depending on what is taking place. One obvious example is fishing that is both illegal—​taking place in 10

11 12

See International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Food & Agric. Org. of the UN (2001) [hereinafter ipoa], available at http://​www.fao.org/​publications/​card/​en/​c/​71be21c9-​8406-​5f66-​ac68-​1e74604464e7, and National Oceanic and Atmospheric Organization, Understanding Illegal, Unreported, and Unregulated Fishing, https://www.fisheries.noaa.gov/insight/ understanding-illegal-unreported-and-unregulated-fishing. Id. Id.

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waters under the jurisdiction of a State without that State’s permission—​and unreported, when illegal actors fail to report their catch to the State whose law enforcement vessels they are evading. What ultimately binds illegal, unreported, and unregulated fishing into a cohesive whole is their effect on marine conservation: iuu fishing undermines work by States and regional bodies to conserve and manage fish stocks, and erodes the possibility of long-​term sustainability. In other words, the primary reason for combatting iuu fishing remains to conserve and manage fish. In contrast, fisheries crime has a much wider array of victims.13 unodc defines fisheries crime as “broader” than traditional conservation and management concerns, requiring investigation “by the criminal justice branch of Government, including police and prosecutors in collaboration with a range of other potential departments and agencies (for example, customs, labour and tax) in terms of a variety of laws.”14 This focus on criminality and criminal justice has three significant implications—​first, to the extent any overlap remains between iuu fishing and fisheries crime, the focus is almost overwhelmingly on illegal fishing, pushing out unreported and unregulated fishing from extended consideration. Each category of iuu fishing is not equally likely to encompass activities that could be considered criminal in nature. Of the three, illegal fishing, defined as it is in reference to laws and regulations that have been broken, is most likely to include behavior that may be addressed by the criminal code of a State or fishing entity, depending on the relevant legislation.15 Unreported and unregulated fishing, by contrast, are less likely to be criminalized. A properly flagged vessel with a valid license to fish that misreports its catch by failing to adequately track discards is unlikely to be the target of efforts cracking down on criminal activity, and yet such activities nevertheless contribute to overfishing and can undermine the sustainable management of fish stocks. A second reason to be cautious about embracing a predominantly criminal paradigm for iuu fishing is that for some States, including the United States, this emphasis may exclude actual fisheries violations, the majority of which are 13

See, e.g., Ian Urbina, ‘Sea Slaves’:  the Human Misery That Feeds Pets and Livestock, N.Y. Times, July 27, 2015, https://​www.nytimes.com/​2015/​07/​27/​world/​outlaw-​ocean-​ thailand-​fishing-​sea-​slaves-​pets.html (recounting the use of human trafficking in the fishing industry). 14 Supra note 7 at 3. 15 The unodc notes that “[c]‌riminal activities in the fisheries sector are often regarded as synonymous with illegal fishing, which many States do not view or prosecute as criminal offences, but rather as a fisheries management concern, attracting low and usually administrative penalties.” Id. at 2.

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not prosecuted as criminal actions under domestic laws. Under U.S. law and regulation, iuu fishing and related infractions are generally considered administrative, rather than criminal in nature.16 There are a limited number of criminal offenses proscribed under the Magnuson-​Stevens Act, such as refusing to permit an authorized officer to board and inspect a vessel;17 forcibly assaulting or interfering with such an officer;18 resisting lawful arrest;19 interfering with the apprehension or arrest of another person known to have committed a prohibited act;20 knowingly and willfully submitting false information;21 and forcibly assaulting, intimidating, bribing, or otherwise interfering with an observer on board the vessel.22 These criminal offenses may be punished by fines or imprisonment.23 Nevertheless, the vast majority of violations are not crimes. Sanctions for these infractions can include civil forfeiture,24 civil penalties (including fines of up to $184,767 for each violation),25 and permit sanctions.26 States with similar regimes are unlikely to be able to join statements conflating iuu fishing with fisheries crime if there remains any concern that such endorsement would require an overhaul of their existing enforcement regimes. Finally, efforts to subsume iuu fishing under the heading of fisheries crime risks moving primary responsibility for addressing these issues on the international level away from rfmo s with expertise in fisheries management. This tension is especially evident in pushes to categorize iuu fishing itself as a criminal activity.27 Such a re-​categorization obviates the distinction between crimes that may be associated with iuu fishing, such as human trafficking or money laundering, which could indeed be addressed by organizations with 16 17 18 19 20 21 22 23 24 25 26 27

See, e.g., Magnuson-​Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1857 (2015). Id. at § 16 U.S.C. 1857(1)(D). Id. at § 16 U.S.C. 1857(1)(E). Id. at § 16 U.S.C. 1857(1)(F). Id. at § 16 U.S.C. 1857(1)(H). Id. at § 16 U.S.C. 1857(1)(I). Id. at § 16 U.S.C. 1857(1)(L). Id. at § 16 U.S.C. 1859. Id. at § 16 U.S.C. 1860. Id. at § 16 U.S.C. 1858. See also Adjustments for Inflation to Civil Monetary Penalties, 15 C.F.R. § 6.3(f)(15) (2018) (adjusting maximum civil monetary penalties for inflation). Id. See, e.g., Patsy Widakuswara, Indonesia Urges UN to declare Fish Theft a Transnational Crime, Voice of American News, June 10, 2017, https://​www.voanews.com/​a/​ indonesia-​urges-​united-​nations-​declare-​fish-​theft-​transnational-​crime/​3895243.html (including a statement from the then-​President of the UN General Assembly welcoming Indonesia’s efforts in this regard, and stating that iuu fishing “is indeed a transnational crime.”).

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a mandate to combat organized crime, and iuu fishing itself, which is more properly addressed by rfmo s and by treaties such as the Port State Measures Agreement. Conflating the two ignores the fact that most rfmo s have neither the resources nor the mandates to confront transnational organized crime. The objectives of rfmo s are primarily to ensure the long-​term conservation and sustainable use of fisheries resources, through effective management (including the application of the precautionary and ecosystem approaches to fisheries management).28 Through the work of Scientific Committees, which conduct research and provide scientific advice and recommendations, rfmo s adopt conservation and management measures that may, inter alia, determine whether stocks are overfished or producing maximum sustainable yield, and set levels of fishing effort accordingly; set standards for collection and exchange of data; seek to minimize waste, discards, and bycatch; and assess impacts on species belonging to the same ecosystem.29 While rfmo s may establish observer programs, adopt high seas boarding and inspection (hsbi) regimes, and curate iuu vessel lists for members to take action, their mandates do not include the kind of financial investigation capabilities contemplated by organizations such as the unodc and interpol in their assessment of fisheries crime. Additionally, even in those rfmo s with hsbi regimes, the primary focus of such regimes is on detecting and enforcing against fishing that violates or undermines conservation and management measures. Any additional capacity to simultaneously take action against drug or weapons trafficking or labor violations would be entirely dependent on the legal and technical abilities of the boarding State, as well as relevant permissions granted by the flag State, depending on where the violation takes place. In sum, rfmo s can and do take action against iuu fishing as it has been traditionally defined. Classifying iuu fishing as a transnational organized

28

29

See, e.g, Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean art. 2, opened for signature Feb. 1, 2010, S. Treaty Doc. No. 113-​ 1 (2013), U.N. treaty registration no. 50553 (entered into force Aug. 24, 2012) [hereinafter sprfmo]; Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean art. 2, done on Sept. 5, 2000, T.I.A.S. 13115, 40 I.L.M. 278 (entered into force June 19, 2004) [hereinafter wcpfc]; Convention for the Strengthening of Inter-​American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica art. ii, opened for signature Nov. 14, 2003, S. Treaty Doc. No. 109-​2 (entered into force Aug. 27, 2010) [hereinafter Antigua Convention]. See, e.g., wcpfc art. 5; sprfmo Convention art. 8; Antigua Convention, art. vii; International Convention for the Conservation of Atlantic Tunas art. viii, done on May 14, 1966, T.I.A.S. 6767, 673 U.N.T.S. 63 (entered into force Mar. 21, 1969).

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crime—​or categorizing it as fisheries crime—​risks taking the primary responsibility for combatting iuu fishing away from the organizations with the capacity to scientifically manage fish stocks, simply because those organizations do not have the mandates to address criminal activity, nor are they set up with that objective in mind. It should be stated that, taken in context, efforts by States and international organizations to identify and address crimes that may be associated with iuu fishing are important and, indeed, necessary. At the same time, the distinction between referring to crimes that may accompany iuu fishing and subsuming iuu fishing into the category of fisheries crime is not merely academic. Use of “fisheries crimes” nomenclature erodes the nuance behind categorization of iuu fishing, and risks obscuring the underlying fisheries violations that threaten sustainable management of fish stocks. It also fails to take into account the existing domestic and international regimes with which States must contend in enforcing fisheries laws. Perhaps most importantly, equating iuu fishing with fisheries crime moves the focus of fisheries violations further away from the concern that originally spurred States to action: the underlying health of fish stocks that contribute to a diverse ocean ecosystem and feed a world’s population. Efforts to combat and prosecute crimes that may be associated with iuu fishing should thus make sure to bear in mind this legal and linguistic distinction, to ensure that these efforts do not neglect the fisheries violations at the heart of it all.

pa rt 7 Marine Biodiversity of Areas Beyond National Jurisdiction (bbnj)

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Negotiating a New Marine Biodiversity Instrument: Reflections on the Preparatory Phase from the Perspective of the European Union Ronán Long1 and John Brincat2 Abstract Preparatory bodies play an important role in intergovernmental negotiation processes leading to the drafting of international treaties or the establishment of new institutions pertaining to the law of the sea. The paper offers some reflections on the evolution of the negotiations on an international legally binding instrument under the los Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The paper traces the genesis of the Preparatory Committee 2016–​2017 and reviews its unique role in advancing the negotiation process towards the convening of an intergovernmental conference in 2018. Special mention is made of the role of European Union in edging the preparatory phase towards a successful outcome. The paper also touches on how the preparatory phase of a new marine biodiversity instrument differed in some significant respects from previous law of the sea negotiations.

Keywords biological –​diversity of areas beyond national jurisdiction –​Preparatory Committee 2016–​2017 –​European Union –​Intergovernmental Conference

1 Director, wmu-​Sasakawa Global Ocean Institute, Nippon Foundation Professorial Chair of Ocean Governance & the Law of the Sea, World Maritime University (wmu) of the International Maritime Organization (imo), a Specialized Agency of the United Nations. The views of the author are personal and an early version of this paper was presented at a conference in Taipei in 2018. 2 European Commission. The opinions expressed are personal, remain the responsibility of the author in his individual capacity and do not necessarily represent the views of the European Union or its Member States.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_024

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Introduction

The history of law of the sea negotiations tells us that the preparatory work of intergovernmental diplomatic conferences is far from easy, as was evident from the disparate and discrete approaches followed in the preparations for the Hague Conference (1930), the First (1958), Second (1960) and Third (1973–​ 1982) United Nations Conference on the Law of the Sea.3 Moreover, a quick review of the great law of the sea diplomatic conferences also teaches us that the preparatory work can be crucial to identifying the key issues that must be resolved and to paving the path subsequently towards the successful conclusion of a treaty text.4 Law of the sea negotiations are not unique in this respect as is evident from the preparatory phase leading to the adoption of the Rome Statute and the establishment of the International Criminal Court.5 True to form in many respects, negotiating a new international legally binding instrument for the conservation and sustainable use of biodiversity of areas beyond national jurisdiction (bbnj) has proved to be extremely complex, protracted and fraught with political difficulties in achieving consensus among the participating States.6 Nonetheless, the negotiations demonstrate in many ways that the United Nations system for the protection of the marine and the biodiversity of areas beyond national jurisdiction rests on a relatively firm foundation of both customary and treaty law as it applies to the ocean including some solid normative provisions in Part xii of the United Nations Convention on the Law of the Sea (los Convention).7 With the benefit of hindsight, it is also evident that over the past two decades, the bbnj negotiations have gone through three distinctive phases of evolution that are closely inter-​linked and 3 For a succinct review of the approaches followed in preparing for previous conferences, see T. Koh, S Jayakumar, ‘The Negotiating Process of the Third United Nations Conference on the Law of the Sea’ in M. Nordquist (ed), United Nation Convention on the Law of the Sea 1982: A Commentary, Vol 1, (Dordrecht/​Bostin/​Lancaster: Martinus Nijhoff, 1985) 29–​134 (especially 29–​31). 4 Ibid. 5 K. Hall, The First Five Sessions of the UN Preparatory Commission for the International Criminal Court, (2018) 94(4) American Journal of International Law 773–​789. 6 R. Long. M. Rodríguez-​Chaves, “Anatomy of a new international instrument for biodiversity beyond national jurisdiction: First impressions of the preparatory process” (2015) 6 Environment Liability: Law, Policy and Practice 214; A Roach, ‘Update on the BBNJ Negotiations’ in M. Nordquist, J. Norton Moore, R. Long (ed) Legal Order in the World’s Oceans (Brill Nijhoff, 2018) 91–​123; D. Freestone, Conserving Biodiversity in Areas beyond National Jurisdiction (Brill/​ Nijhoff: 2019). 7 United Nations Convention on the Law of the Sea, adopted 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3.

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complementary, namely: (1) the Ad Hoc Open-​ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, which convened on nine occasions between 2006 and 2015; (2) the Preparatory Committee (PrepCom) which met on four occasions in 2016 and 2017; and (3)  the convening of an Intergovernmental Conference (igc) from 2018 onwards. When viewed retrospectively, it is evident that each phase has brought the international community a step closer to the conclusion of a new instrument and thus merit separate consideration. For reasons of space however the discussion here is limited to reviewing some of the key milestones up until the convening of the organizational session of the igc in 2018. Further, it is appropriate to start by saying a little about several broader environmental and law of the sea initiatives that provide contextual background and political impetus to the negotiations since their inception. Clearly, these initiatives have also influenced the bbnj discourse as well as the positions of States and international organizations in the protracted lead up to the igc. As will be seen, the EU has championed the bbnj process for well over a decade and has sought constructive engagement with all parties by adopting what it termed as an ‘incremental stepwise approach’ to the drafting of an effective instrument under the los Convention.8 On occasion, this has entailed the EU stepping up to the plate and taking the initiative at certain critical points in the negotiations with a view to driving the process forward towards agreement on an instrument that will attract universal support for the benefit of present and future generations.9 2

Genesis of the Preparatory Committee

The genesis of the PrepCom can be traced to a number of initiatives taken within the framework of international environmental law more generally and the law of the sea more specifically. In relation to the former, the Report of the World Summit on Sustainable Development adopted in Johannesburg in 2002

8 Statement of the European Union and its Member States at the Organizational Session of the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (bbnj), 16–​18 April 2018. Available at: 9 Statement of the European Union and its Member States at the First Session of the Intergovernmental Conference, 4 September 2018. Available at:  http://​statements.unmeetings.org/​ media2/​19407932/​eu-​general-​statement-​written-​version.pdf.

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called for the implementation of Chapter 17 of Agenda 21 in order to promote the conservation and management of the oceans through actions at all levels with a view to maintaining the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction.10 On the latter, the United Nations Open-​ended Informal Consultative Process (icp) on Oceans and Law of the Sea held discussions on the protection and preservation of the marine environment in 2002. The icp reported that specific and urgent action was required to conserve marine biodiversity at all levels.11 The 2002 unga Omnibus Resolution on the Oceans and the Law of the Sea called for the implementation of diverse approaches and tools including the ecosystem approach; the elimination of destructive fishing practices; the establishment of representative networks of marine protected areas by 2012; and for the urgent consideration of ways to integrate and improve the management of risks to marine biodiversity of seamounts and other underwater features.12 The following year, the unga invited global and regional bodies to investigate urgently how to address the threats and risks to vulnerable and threatened marine ecosystems and biodiversity of Areas Beyond National Jurisdiction.13 A major milestone was achieved with the adoption of the unga Omnibus Resolution on Oceans and the Law of the Sea A/​RES/​59/​24 in 2004, which established the Ad Hoc Open-​ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (the Ad Hoc Working Group)(discussed below).14 Noteworthy as well were the more general environmental law and policy initiatives, particularly those taken under the auspices of the Convention on Biological Diversity at cop 7, which highlighted the urgent need for international cooperation and action to improve conservation and sustainable use of biodiversity of abnj, including the establishment of mpa s and the avoidance 10 11

12 13 14

A/​CONF.199/​20, paragraph 32(a). A/​57/​80, Report on the work of the United Nations Open-​ended Informal Consultative Process established by the General Assembly in its resolution 54/​33 in order to facilitate the annual review by the Assembly of developments in ocean affairs at its third meeting Letter dated 20 May 2002 from the Co-​Chairpersons of the Consultative Process addressed to the President of the General Assembly (7 July 2002), At http://​www.un.org/​ Depts/​los/​consultative_​process/​consultative_​process.htm. A/​RES/​57/​141 –​Oceans and the Law of the Sea. Adopted by 132 votes to 1, with 2 abstentions on 12 December 2002. Res/​58/​240, Oceans and Law of the Sea (2004), at:  www.un.org/​depts/​dhl/​resguide/​ r58.htm. Res/​59/​24 (17 November 2004), paragraph 73.

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of destructive practices.15 Indeed, cop 7 agreed that there was urgent need for international cooperation and action to improve conservation and sustainable use of bbnj including the establishment of mpa s in accordance with international law and scientific advice for seamounts, hydrothermal vents, cold-​water corals and other vulnerable ecosystems.16 This was followed by the Convention on Biological Diversity Working Group on Protected Areas discussing options in 2005 and 2006 for cooperation in the establishment of mpa s in abnj.17 The scale of the task at the time is evident from the 2006 Report of Working Group, which noted at the time that ‘less than 0.5 per cent of the marine environment was protected and that low coverage was a matter of concern, especially … when marine biodiversity was continuing to decline rapidly.’ Somewhat ominously, the Report expressed the view that ‘if that declines was to be halted, appropriate protection had to be afforded to the 64 per cent of the oceans located in abnj.’18 This objective of increasing spatial mpa coverage at a global level both within and beyond national jurisdiction was subsequently incorporated into The Strategic Plan for Biodiversity 2011–​2020 and Target 11 of the Aichi Biodiversity Targets of the Convention on Biological Diversity,19 as well as in Goal 14.5 of Sustainable Development Goal 14 (“Conserve and sustainably use the oceans, seas and marine resources for sustainable development”) of the United Nations Transforming Our World: 2030 Agenda for Sustainable Development.20 3

Phase 1: Ad Hoc Working Group from 2006 to 2015

As noted above, the genesis of the PrepCom can be traced back to the adoption of the unga Omnibus Resolution on the Law of the Sea A/​RES/​59/​24 in 2004,21 which established the Ad Hoc Open-​ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (the Ad Hoc Working Group).22 The latter body was mandated with four tasks, specifically: (1) To survey the past 15 16 17 18 19 20 21 22

UNEP/​CBD/​COP/​7/​21/​PART1, Report of the seventh meeting of the Conference of the Parties to the Convention on Biological Diversity, Kuala Lumpur, Malaysia, 9–​20 February 2004. Available here: https://​www.cbd.int/​meetings/​COP-​07. Para. 30, UNEP/​CBD/​COP/​DEC/​VII/​5, 13 April 2004. UNEP/​CBD/​COP/​8/​8*, 20 February 2006. Ibid. para 13, at 6. UNEP/​CBD/​COP/​DEC/​X/​2 29 October 2010. UN Res A/​Res/​70/​1, 21 October 2015. UN Res A/​RES/​59/​24, 4 February 2005. Ibid. para 73.

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and present activities of the United Nations and other relevant international organizations with regard to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction; (2) To examine the scientific, technical, economic, legal, environmental, socio-​economic and other aspects of these issues; (3) To identify key issues and questions where more detailed background studies would facilitate consideration by States of these issues; (4)  To indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.23 Few would have foreseen the arduous and protracted nature of the deliberations that lay ahead over the next decade when the Ad-​Hoc Working Group held its first meeting in 2006 and set out to discharge its broad mandate relating to marine biological diversity of areas beyond national jurisdiction.24 Although the negotiations were open-​ended, it is now evident in retrospect that there were two items on the agenda that had a major bearing on the subsequent deliberations of the Ad-​hoc Working Group and which ultimately shaped the agenda of the Prep Com. Specifically, Item 5(b) of the agenda, which required the examination of the scientific, technical, economic, legal, environmental, socio-​economic and other aspects of the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, including activities of the United Nations and other relevant international organizations. Under this item, delegations were invited to address the issues referred to in paragraph 73 (a) and (b) of General Assembly resolution 59/​24, namely: to survey the past and present activities of the United Nations and other relevant international organizations with regard to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction; and to examine the scientific, technical, economic, legal, environmental, socio-​economic and other aspects of these issues. Similarly, Item 5(d) of the agenda shaped deliberations of the Working Group in so far as it required the indication, where appropriate, of possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond areas of national 23 24

Ibid. para 73. For a succinct summary, see doalos, ‘Marine biological diversity of areas beyond national jurisdiction: Legal and policy framework’, available at: https://​www.un.org/​depts/​ los/​biodiversityworkinggroup/​webpage_​legal_​and_​policy.pdf. Also see, R.  Beckman, M.  McGreath, A.  Roach and Z.  Sun (eds.) High Seas Governance:  Gaps and Challenges (Brill/​Nijhoff 2018) passim.

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jurisdiction, in the following order:25 (a) Strengthening the information base, in particular with the aim of filling knowledge gaps and addressing management, access to and dissemination of information;26 (b) Capacity-​building and technology transfer;27 (e) Environmental impact assessments;28(f) Area-​based management tools, in particular marine protected areas;29 and (g) marine genetic resources.30 Importantly, the report of the first meeting of the Ad-​hoc Working Group noted that there was a ‘need to study and determine whether there is a governance gap in marine areas beyond national jurisdiction. If such a gap is identified, there is a need to clarify how it should be addressed, including assessing the need for the development of an implementing agreement under the Convention to address, inter alia, the establishment and regulation of multi-​ purpose marine protected areas on a scientific basis, as well as other related issues’.31 In addition, further study on the following issues emerged at the Working Group: (a) improved understanding of the extent and nature of marine biological diversity and anthropogenic impacts beyond areas of national jurisdiction, in particular in the areas of greatest vulnerability; (b) further research to assist in the development of management options, including economic incentives and area-​based management; (c) improved understanding of the economic and socio-​economic aspects; and (d) related legal and institutional issues.32 The report from this meeting also establishes that a number of other issues emerged in the discussions under 5(d) including: implementation of existing instruments, integrated management approaches, marine scientific research and genetic resources.33 Although of many of the participants in the 2006 meeting of the Working Group were ambivalent, some delegations such as the European Union (EU) were clear about the governance gap and the consequent need for the

25 26 27 28 29 30 31 32 33

Draft format and draft annotated provisional agenda and organization of work –​A/​AC. 276/​L.4. A/​64/​66/​Add.2, paras. 192–​203. A/​64/​66/​Add.2, paras. 204–​211. A/​64/​66/​Add.2, paras. 223 and 224. A/​64/​66/​Add.2, paras. 225–​230. A/​64/​66/​Add.2, paras. 231–​235. A/​61/​65 –​Report of the Ad Hoc Open-​ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, Annex 1, paragraph 11. Ibid., paragraph 16. Ibid., paragraphs 41–​73.

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adoption of a legally binding instrument. The EU Statement delivered by the then-​Austrian Presidency read as follows: The EU is of the opinion that we are also facing a “governance gap” in abnj, given the largely sectoral nature of the existing legal framework, which does not allow for an integrated impact assessment of human activities on the marine ecosystem, or for an overarching framework for the establishment of mpa s. But this, Mr. Chairman, is in fact the reason why the EU sees a need to develop an implementation agreement under unclos and its underlying principles for the conservation and sustainable use of marine biodiversity.34 Subsequently, unga Resolution A/​RES/​61/​222 took note of the report and requested the Secretary-​General to convene a further meeting in 2008 in order to consider the following:  (a) The environmental impacts of anthropogenic activities on marine biological diversity beyond areas of national jurisdiction; (b) Coordination and cooperation among States as well as relevant intergovernmental organizations and bodies for the conservation and management of marine biological diversity beyond areas of national jurisdiction; (c) The role of area-​based management tools; (d) Genetic resources beyond areas of national jurisdiction; (e) Whether there is a governance or regulatory gap, and if so, how it should be addressed. There were two complementary multilateral developments before the 2008 meeting of the Working Group that had a bearing on the progressive evolution of the bbnj process. First, the General Assembly passed Resolution 61/​105 of 8 December 2006 on bottom fishing, which among other matters addresses the adverse impacts of bottom fishing on vulnerable marine ecosystems (vme s) beyond national jurisdiction, requiring prior eia s, closure of vme s where they are known or likely to occur and measures to protect vme s from significant adverse effects, including by not authorising activities.35 Second, a cbd expert workshop developed scientific criteria for the identification of ecologically and biologically significant areas (ebsa s) in need of protection including in abnj.36 On the basis of this, the Food and Agriculture Organisation of the

34 35 36

EU Presidency Statement  –​Working Group on Marine Biodiversity, Agenda Item 5 a http://​www1.eu2006.at/​en/​News/​Statements_​in_​International_​Organisations/​UN/​ 1402MarineBiodiversity5a_​.html. UN Res A/​RES/​61/​105 –​ Sustainable fisheries, paragraphs 80–​87. cbd cop 8 Decision VIII/​24 Protected areas (2006).

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United Nations (fao) subsequently developed its “International Guidelines for the Management of Deep-​sea Fisheries in the High Seas”.37 The Working Group convened again 2008, 2010 and 2011. Up to the 2011 meeting, the discussions revolved around a handful of key topics: whether there were any gaps in the regime created by the los Convention and whether they were of a legal, regulatory or implementation nature; following on from this whether a legally-​binding instrument was the best option; the adoption of such an instrument as well as either under the Law of the Sea Convention or the Convention on Biological Diversity; the contentious issue of marine genetic resources (mgr  s) and their inclusion within the normative construct of the Common Heritage of Mankind (G77) or as a freedom of the high seas (United States and others). The EU, on the other hand, sought to avoid paralysis of the process stemming from a conceptual debate on the normative status of mgr  s and focused on practical aspects of access and benefit sharing.38 The interest of G77 in the bbnj process was tied in all subsequent deliberations to the issues of mgr  s and the establishment of a regime for access and benefit sharing. In this respect, the potential economic benefits to be derived from mgr product developments in the biotechnology sector can be considered to have played an important role.39 In 2011, the Ad-​Hoc working Group recommended:





37 38 39

(a) A process be initiated, by the General Assembly, with a view to ensuring that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under the United Nations Convention on the Law of the Sea. (b) This process address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-​based management tools, including marine protected areas, and environmental impact assessments, capacity-​building and the transfer of marine technology; (c) This process take place:  (i) in the existing Working Group; and (ii) in the format of intersessional workshops aimed at improving

Available at: http://​www.fao.org/​3/​i0816t/​i0816t00.htm. EU Presidency Statement –​Working Group on Marine Biodiversity, Agenda Item 5 a. UN A/​62/​66/​Add.2 paragraphs 209–​222.

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understanding of the issues and clarifying key questions as an input to the work of the Working Group; (d) The mandate of the Working Group be reviewed and, as appropriate, amended, with a view to undertaking the tasks entrusted by the present recommendations.40

Surprisingly, the United States (and other States which held similar positions including Canada, the Russian Federation, Japan, Norway, the Republic of Korea and Iceland) acquiesced to this and this set in motion the next phase in the Working Group discussions. Through its 2011 Omnibus Resolution on Oceans and the Law of the Sea,41 the unga operationalised these recommendations and thus initiated within the Ad Hoc Working Group the NGOs process to address the issues identified in the recommendations. These developments were helped by the use of both formal and informal meetings. In particular, the role of ngo  s in confidence building at an informal meeting in Tarrytown (New York), which was organized by the Permanent Missions of Mexico and New Zealand with the support of the pew Charitable Trusts and the Rockefeller Foundation helped in forging greater consensus, particularly between the two major groupings, i.e., the G77 plus China and the EU, in taking the process forward. Further impetus was derived from the outcome document of the Third United Nations Conference on Sustainable Development, held in 2012, entitled The future we want, which recognised the importance of the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction.42 Crucially, it committed to address, on an urgent basis, the issue of the conservation and sustainable use of LOS marine biological diversity beyond areas of national jurisdiction, including by taking a decision on the development of an international instrument under the Law of the Sea Convention before the end of the UN’s 69th session.43 This was due to the support once more of the G77 and the EU together with some other countries which overcame the opposition of the US. Since 2011, developing countries began to champion more overtly in the negotiation process the conservation and sustainable use of bbnj. In July 2013, the EU sent a diplomatic note to the United Nations calling for the launch of negotiations of an implementing agreement under the los Convention as soon as possible.44 Specifically, the EU stated their commitment in 40 UN A/​66/​119, 30 June 2011. 41 UN A/​RES/​66/​231 (2011), paragraph 167. 42 UN A/​RES/​66/​288, paragraph 162. 43 Ibid. 44 Note Verbale from Permanent Mission of Lithuania to the UN dated 24 July 2013 (A/​ AC.276/​7).

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the note to taking the discussions to the next stage in the multilateral process in the following terms: We believe that this can only be achieved through a substantive discussion on the different issues already tackled at the workshops. Consequently, we would like to suggest that the Working Group recommend to the General Assembly, at its sixty-​eighth session, the initiation of a preparatory process to prepare the decision that we committed to taking at the United Nations Conference on Sustainable Development, including by examining the scope and contents of a possible future implementing agreement and, for that purpose, the establishment of an intergovernmental group. Such a preparatory process, to conclude within the agreed deadlines, should enable the required political discussion on these issues.45 In 2013, the unga Oceans and Law of the Sea Resolution A/​RES/​68/​70 noted the outcome of the sixth meeting of the Working Group from 19 to 23 August 2013,46 as well as the commitment made by States in The future we want and decided to establish a process within the Working Group to prepare for a decision on the development of an international instrument under the Convention. In the latter regard, it requested the Working Group to make recommendations to the unga on the ‘scope, parameters and feasibility’ of an international instrument under the Convention.47 The language of ‘scope, parameters and feasibility’ was borrowed from the preparatory phase of the negotiations on the Arms Trade Treaty and aimed at ensuring transparency in the negotiation process, without being overtly prescriptive as to the expected outcomes.48 Furthermore, it also established that the Working Group would meet for three meetings of four days each between 1 to 4 April and 16 to 19 June 2014 and from 20 to 23 January 2015. Further to these meetings, and meeting the deadline established in The future we want,49 recommendations adopted by consensus by the Working Group

45 Ibid. 46 UN Res A/​RES/​68/​70 of 9 December 2013, 24 February 2014. 47 Ibid., para 169. 48 Report of the Group of Governmental Experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms, 26 August 2008 (A/​63/​334). 49 Footnote 42.

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at its 9th and last Meeting.50 They were subsequently operationalised by the unga through its resolution A/​RES/​69/​292 (2015) on “the development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” was adopted without a vote on 19 June 2015. Once again, none of the States concerned about the progressive development of the bbnj process at the Working Group (including United States, the Russian Federation, Canada, Japan, Norway and Iceland) impeded the adoption of Resolution 69/​292. 4

Principal Features of General Assembly Resolution 69/​292

Although protracted and arduous in duration and scope, the work of the Ad-​ hoc Working Group was largely successful and can now be viewed as seminal in moving the process forward towards the adoption of a legally binding instrument. There are four aspects to General Assembly Resolution 69/​292 on the development of an international legally binding instrument under the Law of the Sea Convention on the conservation and sustainable use of marine biological diversity of abnj that shaped the subsequent deliberations at the PrepCom and have since influenced the agenda of the igc. First, prior to the holding of an igc, the decision on the development of a new instrument was predicated on the establishment of a Preparatory Committee, open to all States Members of the United Nations, members of the specialized agencies and parties to the Convention, with others invited as observers in accordance with past practice of the United Nations, to make substantive recommendations to the General Assembly on the elements of a draft text of a new instrument under the Law of the Sea Convention. Second, the General Assembly was to decide before the end of its seventy-​ second session on the convening and on the starting date of an intergovernmental conference under the auspices of the United Nations to consider the recommendations of the preparatory committee on the elements of the text of the instrument. This was necessary to overcome the concerns of those States, particularly the US that were still not comfortable with the process moving directly to an igc.

50

Letter dated 13 February 2015 from the Co-​Chairs of the Ad Hoc Open-​ended Informal Working Group to the President of the General Assembly (A/​69/​780).

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Thirdly, the scope of the negotiations was aimed at addressing the topics identified in the package agreed in 2011, namely the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-​based management tools, including marine protected areas, environmental impact assessments and capacity-​building and the transfer of marine technology. Fourth, the negotiation process should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. Finally, the resolution recognised that neither participation in the negotiations nor their outcome may affect the legal status of non-​parties to the Convention or any other related agreements with regard to those instruments, or the legal status of parties to the Convention or any other related agreements with regard to those instruments. 5

Phase 2: Four Sessions of the Preparatory Committee in 2016–​2017

The bbnj PrepCom held four sessions in 2016 and 2017. The first two meetings of the Committee were chaired by Ambassador Eden Charles of Trinidad and Tobago from 28 March to 8 April, and from 26 August to 9 September 2016.51 The third and fourth meetings were chaired by Ambassador Carlos Sobral Duarte of Brazil from 27 March to 7 April, and from 10 to 21 July. The plenary meetings and informal working groups were devoted to the four elements of the package, along with the horizontal cross-​cutting issues. In contrast to the Ad-​hoc Working Group, actual substantive discussions at the PrepCom were supported by detailed submissions made prior to each session by many delegations.52 5.1 PrepCom 1 Representatives from 98 States Members of the United Nations, 2 non-​ Member States, 12 intergovernmental organizations, 5 United Nations funds and programs, bodies and offices, as well as 17 non-​governmental organizations attended the first session of the PrepCom. The plenary sessions of the Committee heard general statements and considered:  the scope of an 51 52

For a detailed analysis of the PrepCom, see, J. A. Roach, ‘Update on the BBNJ Negotiations’ in M. Nordquist, J. Norton Moore, R. Long (eds.) Legal Order in the World’s Oceans (Brill Nijhoff, 2018) 91–​123. https://​www.un.org/​depts/​los/​biodiversity/​prepcom.htm.

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international legally binding instrument and its relationship with other instruments; guiding approaches and principles of an international legally binding instrument; as well as on the fours substantive elements of the package: marine genetic resources, including questions on the sharing of benefits; area-​based management tools, including marine protected areas; environmental impact assessments; and capacity-​building and the transfer of marine technology. Informal working group sessions were also convened and facilitated by Mr. Carlos Sobral Duarte (Brazil) for the informal working group on marine genetic resources, including questions on the sharing of benefits; Mr. John Adank (New Zealand) for the informal working group on measures such as area-​based management tools, including marine protected areas; Mr. René Lefeber (the Netherlands) for the informal working group on environmental impact assessments; and Ms. Rena Lee (Singapore) for the Informal working group on capacity-​building and the transfer of marine technology. Overall, considerable progress was made at the first meeting of the PrepCom. Undoubtedly, the meeting derived considerable momentum from the long discussions at the Working Group and at other international bodies. Moreover, each of the elements of the 2011 Package received a degree of scrutiny thus ensuring successful deliberations at the first session.53 On the substantive elements, access to marine genetic resources and benefit sharing remained highly contentious for many participants.54 Likewise, issues such as the definition of marine genetic resources, the geographical distribution of marine genetic resources, the traceability of genetic material, the development of a regime which reconciles the competing interests of high seas freedoms and the common heritage of mankind of the Area as codified in Parts vii and xi of the los Convention.55 Significantly, the majority of participants supported the use of area-​based management tools, in particular, the establishment of mpa s in abnj. There was broad agreement among participants about the need to establish a general regime governing the eia of activities in abnj.56 There was general consensus that capacity building and the transfer of marine technology was considered a cross-​cutting issue within the elements of the 2011 Package.57 The operationalization of Part xiii and xiv of unclos, the criteria and approaches of existing guidelines from UN Agencies and the interest 53

R. Long. M. Rodríguez Chaves, “Anatomy of a new international instrument for biodiversity beyond national jurisdiction: First impressions of the preparatory process” [2016] 6 ENVIRONMENT LIABILITY: LAW, POLICY AND PRACTICE, 214–​229. 54 Ibid. 55 Ibid. 56 Ibid. 57 Ibid.

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of the majority of States in the effectiveness of measures to improve capacity building and technology transfer were the key aspects of this topic that needed further analysis.58 Perhaps one of the most intractable issues highlighted at the first session was the design and structures of the institutions that would underpin the new instrument.59 A variety of positions emerged from different participants including the possible broadening of the mandates of existing bodies such as the International Seabed Authority or perhaps the creation of a new international body with powers in regard to abnj.60 There were no formal reports of the session, but the Chair issued an overview and noted the collegiality of the first session and the recognition by delegations of the need for transparency and open discussions.61 In the latter regard, the informal working groups achieved their objective of assisting delegations to address the package of issues to be considered by the PrepCom, along with the need to not undermine existing legal instruments in the negotiations. The Chair noted in his observations that there were several areas of convergence at the first session but several issues required further in-​depth discussions and clarification.62 5.2 PrepCom 2 The second meeting of the PrepCom had stronger attendance than the first with participation by 115 UN member States, 3 non-​Members, 17 intergovernmental organizations, 6 UN funds and programmes, bodies and offices, along with 23 non-​governmental organizations.63 There was also an increase in the number of participants from developing States, which was facilitated by donations to the trust fund established for this purpose pursuant to paragraph 5 of Resolution 69/​292. The Chair circulated indicative suggestions of clusters of issues and questions to assist further discussions in the informal working groups at the second session.64 Following the methodology adopted at PrepCom 1, the second session was given over to the attempt to identify possible areas of convergence of views as well as issues requiring further discussions. The Chair’s overview of the session included his understandings of an extensive 58 Ibid. 59 Ibid. 60 Ibid. 61 http://​ w ww.un.org/​ D epts/​ l os/​ b iodiversity/​ p repcom_​ f iles/​ P repCom_​ 1 _​ C hair’s_​ Overview.pdf. 62 Ibid. 63 https://www.un.org/Depts/los/biodiversity/prepcom_files/Prep_Com_II_Chair _overview_to_MS.pdf 64 Available at:  http://​www.un.org/​depts/​los/​biodiversity/​prepcom_​files/​IWGs_​Indictive_​ Issues_​and_​Questions.pdf.

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list of possible areas of convergence of views and possible issues for further discussion on the four substantive elements and cross-​cutting issues of the 2011 Package, as well as some general observations. There was an absence of consensus on many of the contentious issues.65 Notably, in his observations on progress at the second session, the Chair was of the view: … that discussions will need to intensify to identify ways to bridge the divergent views of delegations regarding the application of the high seas freedom and the common heritage of mankind in relation to marine genetic resources of areas beyond national jurisdiction, including questions on the sharing of benefits. With regard to measures such as area-​based management tools, including marine protected areas, the Chair invites greater focus on the modalities for the designation of such measures, as well as on issues relating to management, monitoring, control and surveillance and enforcement. The Chair is encouraged by the detailed discussions and suggestions on environmental impact assessments and capacity-​building and the transfer of marine technology and invites delegations to carry these discussions forward towards concrete proposals for elements of a draft text. The Chair would like to see more discussions on the cross-​cutting issues. In particular, the Chair encourages delegations to be more specific in their suggestions, for example concerning how definitions may be addressed in an international legally binding instrument, how governing or overarching principles may be featured in such instrument, or how provisions from other treaties on dispute settlement may be used in the present context. The Chair further invites delegations to give greater consideration to discussions on the scope of an international legally binding instrument.66 In general, the second session of the PrepCom demonstrated constructive engagement by participants and efforts by some delegations to continue exploring options on how to bridge some of the more intractable issues. Reflecting perhaps the political nature of the process, which was not considered the time for compromise by the participating delegations, and in the absence of treaty 65 66

J. Ashley Roach, ‘Update on the BBNJ Negotiations’ in M.  Nordquist, J.  Norton Moore, R.  Long, (ed.) Legal Order in the World’s Oceans:  UN Convention on the Law of the Sea (Leiden/​Boston, Brill/​Nijhoff, 2018), 91–​123 at 104. Para 4 of Annex ii of the Chair’s overview of the second session of the Preparatory Committee. Available at: http://​www.un.org/​depts/​los/​biodiversity/​prepcom_​files/​Prep_​ Com_​II_​Chair_​overview_​to_​MS.pdf.

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language during the course of deliberations, there was an understandable degree of reluctance on the part of many delegations to commit to a detailed description of specific areas of convergence on many of the substantive issues. Hence, the failure of the process to “park” particular issues which had generated convergence, in order to focus on more difficult issues, prior to further negotiations at PrepCom 3 and 4. 5.3 PrepCom 3 The third session was devoted to an exchange of views in preparation of the draft recommendations mandated by unga Resolution 69/​292. It was preceded by submissions made by numerous delegations as well as non-​governmental organisations.67 The new Chair prepared a non-​paper, which aimed to provide a structured presentation of the issues and ideas reflected in the proposals for elements of a draft text of an international legally binding instrument, as well as the possible areas of convergence.68 The third session again had impressive participation and was attended by representatives from 147 Member States of the United Nations, 2 non-​Member States, 5 United Nations funds and programmes, bodies and offices, 18 intergovernmental organizations, and 19 non-​governmental organizations. As part of the introduction, the opening plenary was provided with an overview by Ms. Juliette Rosita Babb Riley (the co-​chair of the Regular Process of the UN) of the Technical Abstract of the First Global Integrated Marine Assessment on the Conservation and Sustainable Use of Marine Biological Diversity of abnj, as well as an address from Mr. Peter Thomson, President of the General Assembly. The plenary session received oral reports from the Facilitators of the informal working groups and these were subsequently appended in written form to the Chair’s overview of the third session.69

67

Alliance of Small Island States; Australia; Bangladesh; Canada; Caribbean Community; China; Federated States of Micronesia; Fiji; Group_​of_​77_​and_​China; Iceland; Jamaica; Monaco; New Zealand; Norway; Pacific Small Island Developing States; United States of America. Views by members of the specialized agencies and parties to the Convention:  European Union and its Member States and iucn. Submissions by non-​ governmental organizations:Greenpeace; Natural Resources Defense Council (on behalf of the High Seas Alliance); and wwf. Available at:  https://​www.un.org/​depts/​ los/​biodiversity/​prepcom_​files/​rolling_​comp/​Prep_​Com_​webpage_​submisions_​by_​ delegations.pdf. 68 Available at:  http://​www.un.org/​depts/​los/​biodiversity/​prepcom_​files/​Chair_​non_​ paper.pdf. Supplemented by:  http://​www.un.org/​depts/​los/​biodiversity/​prepcom_​files/​ Supplement.pdf. 69 Ibid.

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In relation to the substantive issues, including questions on the sharing of benefits, the Chair encouraged further consideration of the issues identified in the Facilitator’s oral reports, including, inter alia: On marine genetic resources … those relating to guiding principles and scope, as well as access and benefit-​sharing modalities, including the different benefits that may be had at various stages, who might be required to share benefits, who might the beneficiaries be, and how might the shared benefits be used; issues relating to monitoring the utilization of marine genetic resources, including issues related to traceability; and what kind of institutional arrangements might be required to administer an access and benefit-​sharing regime. On area-​based management tools (abmt s), including marine protected areas (mpa s), … additional consideration of the subcategories of abmt s, other than mpa s, as well as the relevant decision-​making process and institutional set up for the establishment of abmt s, including mpa s, taking into account the different approaches that have been put forward and the proposed allocation of roles and responsibilities within each approach, including how to deal with existing regional and sectoral measures. On eia, … ‘how to address transboundary impacts; the form and substance of guidance on operationalizing article 206 of unclos, in particular as regards thresholds, and the relationship with existing regulations; issues related to governance, including the degree to which the process should be conducted by States or be “internationalized”; and whether strategic environmental assessments should be included. On capacity-​ building and the transfer of marine technology, … on: whether there is a need to specify the types of capacity-​building and transfer of marine technology in an international instrument and, if there is such a need, the modalities for doing so; the terms and conditions for transfer of marine technology; the form and content of a clearing-​house mechanism; issues relating to funding; and whether capacity-​building and transfer of marine technology should be mainstreamed across the various topics of the package in an international instrument or included in a dedicated section with links to other sections of the instrument. On cross-​cutting issues, … ‘how guiding principles and approaches could be featured in an international instrument and how they might be applied in the context of the various elements of the package, as well as on issues relating to institutional arrangements, while acknowledging that further in-​depth discussion on some aspects thereof and on a

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number of the other cross-​cutting issues, including review, monitoring and compliance, responsibility and liability as well as dispute settlement, is also dependent on gaining greater clarity on the substantive elements of an international instrument.70 The inter-​linkages between the various strands of the 2011 Package required further scrutiny and discussion at PrepCom 4. 5.4 PrepCom 4 The fourth and final session of the PrepCom had participation from 131 member States of the United Nations, 2 non-​member States, 2 United Nations programmes, funds and offices, 9 specialized agencies and related organizations of the United Nations system, 10 intergovernmental organizations and 23 ngo s. The session was informed by the Chair’s streamlined non-​paper on the elements of a draft text of an international legally-​binding instrument.71 This took into account the proposals, issues and ideas presented by delegations at the previous sessions as well as through their written submissions to previous sessions of the PrepCom without prejudice to the level of support for the substantive issues addressed in the paper. In addition, further submissions were received from a handful of delegations and non-​governmental organisations (ngo s).72 The session heard statements from participants on the recommendations on the elements of a draft text of an international legally binding instrument and considered the report of the PrepCom. Much of the work of the plenary sessions was given over to discussing the substantive recommendations to the General Assembly, with many delegations proposing the convening of an igc in 2018. Other delegations expressed the view that this decision ought to be left to the General Assembly, without prejudice to the discussions therein. The Russian Federation called for additional PrepCom sessions before the convening of an igc. Similar reluctance was evident from the United States delegation, who emphasised the absence of consensus in taking the process forward to an igc. 70

Chair’s overview of the third session of the Preparatory Committee. Available at: http://​ www.un.org/​depts/​los/​biodiversity/​prepcom_​files/​Chair_​Overview.pdf. 71 Available at:  https://​www.un.org/​depts/​los/​biodiversity/​prepcom_​files/​Chairs_​ streamlined_​non-​paper_​to_​delegations.pdf. 72 Alliance of Small Island States; Argentina; Caribbean Community; China; Costa Rica; Eritrea; Jamaica; México; Pacific Small Island Developing States; Russian Federation; and Senegal. Submissions by non-​governmental organizations:  Natural Resources Defense Council; OceanCare; and Pew Charitable Trusts. Available at: https://​www.un.org/​depts/​ los/​biodiversity/​prepcom_​files/​rolling_​comp/​Submissions_​StreamlinedNP.pdf.

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bbnj PrepCom Recommendations

At its 47th meeting, on 21 July 2017, the Preparatory Committee adopted by consensus, recommendations to the General Assembly.73 Firstly, it was recommended that the elements contained in sections A and B be considered with a view to the development of a draft text of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Sections A and B did not reflect consensus. Section A  included non-​exclusive elements that generated convergence among most delegations. Section B highlighted some of the main issues on which there is divergence of views. Reflecting the absence of consensus at the PrepCom and their non-​exhaustive nature, sections A and B were for reference purposes only because they did not reflect all options discussed and were recommended without prejudice to the positions of States during the negotiations. Moreover, the recommendation called upon the General Assembly to take a decision, as soon as possible, on the convening of an igc, under the auspices of the United Nations, to consider the PrepCom recommendations on the elements and to elaborate the text of a legally binding instrument under the LOS Convention.74 Section A i . Preambular elements i i. General elements including Use of terms; Scope of application; Objective(s) and Relationship to the Convention and other instruments and frameworks and relevant global, regional and sectoral bodies i ii. Conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction 1. General principles and approaches 2. International cooperation 3. Marine genetic resources, including questions on the sharing of benefits 4. Measures such as area-​based management tools, including marine protected areas 5. Environmental impact assessments 6. Capacity-​building and transfer of marine technology i v. Institutional arrangements 1. Decision-​making body/​forum

73 74

A/​AC.287/​2017/​PC.4/​2. Ibid., paragraph 38.

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2. Scientific/​technical body 3. Secretariat v. Clearing-​house mechanism v i. Financial resources and issues v ii. Compliance v iii. Settlement of disputes i x. Responsibility and liability x . Review x i. Final clauses 7

Phase 3 –​Intergovernmental Conference from 2018 and Thereafter

The bbnj process entered its third phase with 140 UN Member States co-​ sponsoring General Assembly Resolution 72/​249 on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The resolution was adopted without a vote on the 24 December 2017. The principal features of the resolution entail the decision to convene an intergovernmental conference, under the auspices of the United Nations, to consider the recommendations of the Preparatory Committee on the elements and to elaborate the text of an instrument, with a view to developing the instrument as soon as possible. The parameters are significant and will undoubtedly frame all subsequent negotiations. The igc negotiations must address the topics identified in the package agreed in 2011, namely the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-​based management tools, including marine protected areas, environmental impact assessments and capacity-​building and the transfer of marine technology. The resolution reaffirms that the work and results of the conference should be fully consistent with the provisions of the los Convention. The resolution also recognises that this process and its result should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. Moreover, the conference has a broad constituency in so far as it is open to all States Members of the United Nations, members of the specialized agencies and parties to the Convention. Inspired by the approach adopted at the Third los Conference (unclos iii), in relation to its modus operandi, the igc was obliged to exhaust every effort in good faith to reach agreement on

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substantive matters by consensus. The rules of procedure and practice of the General Assembly shall apply to igc unless otherwise agreed by the conference. The decisions of the conference on substantive matters must be taken by a two-​thirds majority of the representatives present and voting after every effort to reach an agreement by consensus has been exhausted. The igc shall meet for four sessions of a duration of 10 working days each, with the first session taking place in the second half of 2018, the second and third sessions taking place in 2019, and the fourth session taking place in the first half of 2020. However, the resolution does not establish that the igc will conclude by the fourth session or that further sessions are not possible. The first organisational session took place from 16 to 18 April 2018 and the first two substantive sessions took place from 4 to 17 September 2018 and 25 March to 5 April 2019. A number of informal meetings to prepare for the igc were held including in February 2018 at in Tarrytown organized by Mexico and New Zealand with the support of the Pew Charitable Trusts. This was followed by a meeting in Brussels organized by the Foreign Ministry of Belgium, with the support of the High Seas Alliance in March 2018. Similarly, other informal meetings were held prior to the second substantive session in Ottawa, Canada in February 2019 and in Lisbon, Portugal in March 2019 with the support of civil society. 8

General Remarks on the Preparatory Phase

How did the bbnj preparatory phase differ from previous law of the sea codification conferences? First of all, it was much more protracted, spanning well over a decade of deliberations in various bodies. When viewed with the benefit of hindsight it is also evident that there was a significant evolution in the bbnj process between the first session of the Ad-​hoc Working Group in 2006 and the final session of the PrepCom in 2017. The PrepCom allowed the negotiations to gear-​up from the political and technical deliberations of the Ad-​hoc Working Group. For the first time, the PrepCom allowed discussions on the substantive issues and confidence building among delegations about the need for a new treaty. Crucially, in the latter regard, the PrepCom was successful in filtering down the contentious issues and improving understanding of the issues at stake thereby forging considerable consensus among 140 States in taking the bbnj process forward to an igc. In the main, this may be attributed to the outcome of the formal process as no efforts were made to reduce the size of the meetings at the PrepCom. This perhaps explains the slow pace of progress as it proved immensely challenging, if not impossible on some issues, to negotiate

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in a forum made-​up of 164 States, over two dozen international organisations and many observer groups. The PrepCom did not consider creating smaller negotiating groups. Furthermore, it could be argued that the process was entirely political and was not orientated at producing a zero-​draft legal text in preparation for the igc. On the other hand, it may be recalled that the preparatory work for the Third United Nations Conference on the Law was not entrusted to the International Law Commission but was the prerogative of the 91 members of the UN Seabed Committee on the basis of open-​ended negotiations without any specific deadlines.75 This approach proved to be inconclusive and the Third Conference also commenced without the benefit of a zero-​draft text or a single preparatory text document. Less can often mean a more constructive approach in preparatory work in international treaty-​making processes. A case in point relates to the preparatory committee of the Arms Trade Treaty, which was subsequently criticised for sketching out the provisions of a new treaty during the course of the preparatory process and thereby exceeding its mandate.76 In other respects, the bbnj process has proved to be considerably different from some of the post unclos negotiations, most notably. In marked contrast to the straddling fish stocks conference negotiations in the 1990s, there is little evidence of State practice influencing the bbnj negotiation processes, similar to the detention of the Spanish fishing vessel the Estai on the high seas by Canada and its subsequent bearing on the outcome of the Straddling Fish Stocks Conference in 1995.77 Nonetheless, the empirical evidence underpinning the need for a new treaty was supported by the timely publication of the First Global Integrated Marine Assessment,78 which provided considerable evidence on the deplorable status of high seas biodiversity and the expansive nature of the dominant pressures on the wider marine environment.79 Somewhat

75

See T. Koh, S Jayakumar, ‘The Negotiating Process of the Third United Nations Conference on the Law of the Sea’ in M. Nordquist (ed), United Nation Convention on the Law of the Sea 1982: A Commentary, Vol 1, (Dordrecht/​Bostin/​Lancaster: Martinus Nijhoff, 1985) 29–​ 134 (especially 29–​31). 76 See inter alia:  L. Lustgarten, ‘The Arms Trade Treaty:  Achievements, Failings, Future’ (2015) 64(3) International and Comparative Law Quarterly 569–​ 600; D Garcia, Disarmament Diplomacy and Human Security (Routledge 2011); A.  Clapham, S.  Casey-​ Maslen, G. Giacca, S. Parke, The Arms Trade Treaty: A Commentary (Oxford: oup: 2016). 77 P. Curran, R.  Long, “Unilateral Fishery Law Enforcement:  the case of the Estai”, Irish Journal of European Law, December 1995, Vol. 5, No 2, 1996, 123–​163. 78 United Nations, The First Integrated Marine Assessment (Cambridge:  Cambridge University Press 2016). 79 Ibid.

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surprisingly, the successful negotiation of the 2015 Paris Agreement and the 2030 Agenda on Sustainable Development remained largely peripheral to the bbnj negotiations although there was recognition of the pressures stemming from climate change and the warming of the oceans. Nevertheless, they have the potential to play a more central role in influencing the negotiations at the igc. This is particularly so as several of the targets set out in Goal 1480 are directly related to the bbnj negotiations including: the requirement to sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience, and to take action for their restoration in order to achieve healthy and productive oceans by 2020; as well as the conservation of at least of 10% of coastal and marine areas by the same year. Crucially, Goal 14 requires the enhancement of the conservation and sustainable use of oceans and their resources by implementing international law as reflected in unclos, which provides the legal framework for the conservation and sustainable use of oceans and their resources, as recalled in paragraph 158 of The Future We Want. Undoubtedly, the legally binding instrument on biodiversity can advance this objective. Conversely, the shadow of the bbnj negotiations influenced the reluctance of some States to accept more ambitious commitments, particularly in the context of the 2030 Agenda. The decisions of international courts and tribunals including the advisory jurisprudence of itlos in Case 17 and 21 have the potential to influence the igc process in so far as they clarify the law on important aspects of marine environmental protection, including with regard to the precautionary principle and environment impact assessments, in relation to activities in the Area and in relation to fishery conservation and management including the content of the obligation of due diligence.81 The Annex vii South China Sea arbitral tribunal found that due diligence is informed by other rules of international law, and requires not only adoption of appropriate rules and measures, but also enforcement and the exercise of administrative control. The judgment of the International Court of Justice in Costa Rica v Nicaragua is also relevant to the bbnj negotiations in so far as the Court awarded compensation to indemnify for the impairment or loss of environmental goods and services and payment

80 81

unga Resolution 70/​1 of 25 September 2015, “Transforming our world: the 2030 Agenda for Sustainable Development”. itlos Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, itlos Reports (2011) 10; Request for an Advisory Opinion Submitted by the Sub-​Regional Fisheries Commission (srfc), Advisory Opinion of 2 April 2015, itlos Reports 2015.

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for the restoration of the damaged environment.82 The judgment recognised that natural recovery may not always be able to restore the environment to its previous state and therefore payment to enable active restoration may be awarded. The Court found that international law does not prescribe any specific method of valuation. Perhaps this is an issue that ought to be addressed within the liability regime established by a future bbnj instrument. The role of the ngo s in the bbnj process was strong as well as very constructive throughout the negotiations and particularly so during the PrepCom phase.83 This was greatly facilitated by Resolution 72/​249, which allowed for observer participation including attendance at formal meetings, unless otherwise decided by the Conference in specific situations.84 In practice, ngo s attended all of the sessions up until the final meeting of PrepCom 4; receiving copies of the official documents; making available materials to delegates; and they had the right to intervene at meetings of the plenary and informal working groups. This allowed ngo s to provide a degree of continuity throughout the negotiations and helped bridge gaps in the continuity and participation of national delegations, which ebbed and flowed in line with national exigencies. There is little doubt that observer participation promoted more transparent, inclusive and accountable negotiation process in so far as it allowed for participation by a diverse constituency of stakeholders, as well as the provision of publications, materials and expert advice. Notably, the observers also afforded delegates opportunities to meet outside the conference such as at Tarrytown and at Columbia University to work on key issues including mgr s.85 They also brought independent experts to meet delegates, thus helping the Least Developed Countries (ldc s) to close the knowledge gap on many of the technical issues under negotiation. By the latter means, ngo s were able to influence the outcome of the formal negotiations.

82

83 84 85

Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica, icj, 2 February 2018. See, J.  Rudall, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (2018) 12(2) AJIL 288. R. Long, ‘The (Costa Rica v Nicaragua) Compensation Case and its Potential to Influence a New Marine Biodiversity Instrument’ (2019) Review of European, Comparative & International Environmental Law. R. Blasiakab, C.  Durusselc, J.  Pittmand, C.  Sénite, M.  Petersson, N.  Yagia, ‘The role of NGOs in negotiating the use of biodiversity in marine areas beyond national jurisdiction’, Marine Policy 81 (2017) 1–​8. Resolution 72/​249, paras. 12, 13, 14, 15. R. Long. M. Rodríguez-​Chaves, “Anatomy of a new international instrument for biodiversity beyond national jurisdiction:  First impressions of the preparatory process”, op. cit. note 6.

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Understandably, delegations showed a remarkable reluctance to yield or grant concessions on key issues during the PrepCom in line with the nature and scope of the forum, which was not vested with any treaty-​making powers and cautiously avoided the use of treaty language in the cut and thrust of the deliberations. As a result, there is a degree of constructive ambiguity in both Sections A and B of the PrepCom report which was also necessary to adopt the recommendations by consensus. Moreover, the most contentious issues that arose during the course of the bbnj PrepCom were generally the same as those at the Ad-​hoc Working Group between 2006 and 2015 and related particularly but not only to mgr s, access and benefit sharing regime, with many delegations slow to move away from well-​articulated but entrenched positions concerning the common heritage of mankind and freedom of the high seas. There has been little discussion of the institutional structures to support, amongst others, the application of area-​based management tools including measures to improve cooperation and coordination with existing intergovernmental organisations that exercise sector-​based mandates. Similarly, there was little consensus on technical matters pertaining to environmental impact assessment including the thresholds that will apply to specific projects and activities that impinge upon the marine environment. Many of the cross-​cutting issues including the contentious principle of common but differentiated responsibilities were not discussed in any great detail at the PrepCom. Similarly, issues of finance and monetary resources to support the implementation of a future agreement remained largely outside the purview of the PrepCom. Perhaps most noticeably of all, there was only very limited discussion of measures that improve biodiversity resilience or that provide for ecological restoration, particularly in relation to area-​based management tools, eia s and strategic environmental assessments (sea s), as well as liability and compliance. Many of these issues will need to be taken-​up at the igc. In general, we can expect compromises on the key issues in the igc, but perhaps only in the final stages when the scope and substance of the principal provisions of the new instrument have become clearer.

­c hapter 21

bbnj: Developments since Yogyakarta J. Ashley Roach* Abstract The UN General Assembly decided to convene in 2018 a Diplomatic Conference for the development of an internationally legally binding instrument for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. This development followed conclusion in 2017 of the work of a two-​year Preparatory Committee. This chapter brings up to date through the first intergovernmental conference in September 2018 the author’s chapter in the Center for Ocean Law and Policy’s book on its annual conference in Yogyakarta in mid-​2017, “Update on the bbnj Negotiations,” in Legal Order in the World’s Ocean: UN Convention on the Law of the Sea.

Keywords marine biological diversity –​biological diversity of areas beyond national jurisdiction –​ treaty negotiations –​marine environment –​environmental impact assessment –​marine technology –​United Nations Convention on the Law of the Sea –​marine genetic resources

1

Background

The two previous annual conferences of the Center for Oceans Law and Policy of the University of Virginia School of Law have included examination of various issues involved in the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (bbnj): in 2016 at UN Headquarters in New York1 and in 2017 in Yogyakarta, * Captain, jagc, usn (retired), Office of the Legal Adviser, U.S. Department of State (retired), Visiting Senior Principal Research Fellow, Centre for International Law, National University of Singapore. The views expressed in this chapter are not intended to reflect the position of any government and any of their departments or agencies. The author’s PowerPoint is available at . 1 In two chapters by Dire Tladi, ‘The Common Heritage of Mankind in the Proposed Implementing Agreement,’ and J. Ashley Roach, ‘Update on the BBNJ Negotiations,’ in Legal Order

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004412026_025

470 Roach Indonesia.2 At the 2018 conference in Beijing, China, two papers were presented, one by Ronán Long, “The Final Frontier:  European Union and the bbnj Negotiations,” and the other by this author on developments since Yogyakarta. This chapter describes the bbnj negotiations in 2017 and 2018. The final two sessions of the Preparatory Committee were held in 2017 and the first two sessions of the Diplomatic Conference were held in 2018. 2

Introduction

In resolution A/​69/​292, 19 June 2015, the General Assembly decided to convene a preparatory committee (PrepCom) of four sessions to develop an internationally legally binding instrument (ilbi) under the 1982 United Nations Convention on the Law of the Sea (unclos) on conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (abnj).3 Two sessions were held in 2016 and two in 2017. Thereafter, notwithstanding the failure to reach consensus on any issue at the PrepCom, on 24 December 2017, the UN General Assembly by resolution A/​72/​249 decided to convene a diplomatic conference (DipCon) for the same purpose of at least four sessions preceded by an organizational session in New York 16–​18 April 2018. The first session (igc-​1) was held 4–​17 September 2018. The second and third sessions will likely be held for 10 working days each 25 March to 5 April 2019 and 10–​30 August 2019, and the fourth session in the first half of 2020, on dates to be

in the World’s Ocean: UN Convention on the Law of the Sea, edited by Myron H. Nordquist, John Norton Moore and Ronán Long (London & Boston: Brill Nijhoff, 2018), pp. 72–​90 and 91–​123 respectively. 2 In four chapters by Robin Warner, ‘Realising Biodiversity Governance in Marine Areas Beyond National Jurisdiction:  Challenges and Prospects’; by Kristine Dalaker Kraabel, ‘The BBNJ PrepCom and Institutional Arrangements: The Hype about the Hybrid Approach’; by Su Jin Park and Ki Hyeon Kim, ‘The Legal Framework and Relevant Issues on the Marine Protected Areas in the Areas beyond National Jurisdiction’; and by A. Gusman Siswandi, ‘Marine Genetic Resources beyond National Jurisdiction and Sustainable Development Goals: The Perspective of Developing Countries’; in The Marine Environment and United Nations Sustainable Development Goal 14: Life Below Water, edited by Myron H. Nordquist, John Norton Moore and Ronán Long (Leiden & Boston: Brill Nijhoff, 2019), pp. 111, 137, 173 and 194 respectively. 3 For a comprehensive first-​hand account of the process leading up to the convening of the PrepCom see Kristina M. Gjerde, ‘Perspectives on a Developing Regime for Marine Biodiversity Conservation and Sustainable Use beyond National Jurisdiction,’ in Ocean Law Debates: The 50-​Year Legacy and Emerging Issues for the Years Ahead, edited by Harry N. Schreiber, Nilufer Oral and Moon-​Sang Kwon (Leiden|Boston: Brill Nijhoff, 2018), pp. 354–​380.

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decided. The resolution is silent on future sessions. If needed, that would also require future decisions by unga.4 The parameters set for the PrepCom were repeated for the DipCon, as follows. The work and results of the conference should be fully consistent with the provisions of unclos (para. 6). The process and its result should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies (para. 7). The conference shall be open to all States Members of the UN, members of specialized agencies and parties to unclos (para. 8). The resolution stressed the need to ensure the widest possible and effective participation in the conference (para. 9). Neither participation in the negotiations nor their outcome may affect the legal status of non-​parties to unclos or any other related agreements with regard to those instruments, or the legal status of parties to unclos or any other related agreements with regard to those instruments (para. 10). For the meetings of the DipCon the participation rights of the EU are the same as at the Meetings of States Parties to unclos (para. 11). Attendance as observers is permitted by igo s, ngo s and UN specialized agencies, organizations, funds and programs (paras. 12–​15). The conference is to exhaust every effort in good faith to reach agreement on substantive matters by consensus (para. 17), but failing that by two-​thirds majority of representatives present and voting (para. 19).5 3

Organizational Meeting

Pursuant to paragraph 5 of resolution A/​72/​249, the unga President, after open and transparent consultations, nominated Ms. Rena Lee of Singapore as President-​designate of the conference. On 16 April 2018 she was elected President by acclamation. Ambassador Lee is the newly appointed Ambassador for Oceans and Law of the Sea issues and Special Envoy of the Singapore Foreign Minister.

4 As was done for the sessions of unclos iii. In contrast, the resolution convening the fish stocks conference, resolution A/​47/​192, 22 Dec. 1992, para. 1, limited its duration to less than two years (“convene in 1993 … should complete its work before” the 49th session of the General Assembly in November 1995). The fish shocks agreement was adopted 4 August 1995. 5 This is very similar to the “Gentleman’s Agreement” made by the President and endorsed by the Conference at its 19th meeting on 27 June 1974, A/​CONF.62/​30/​Rev.3, Rules of Procedure, Appendix, p. 17. Rule 37 also called for a cooling off period before the vote was to be taken. The multiple sessions of unclos iii were necessary to reach consensus on the package deal. Consensus was not reached at the fish stock conference because of its limited duration.

472 Roach The UN Secretary-​General then appointed the Director of Legal Affairs as the Secretary-​General of the Conference and doalos as Secretary of the Conference. 3.1 Adoption of the Agenda and Organization of Work The Secretariat introduced the agenda, the organization of work, and the Report of the PrepCom.6 The agenda was adopted without change.7 The organization of work was adopted as amended by the President to consider appointment of the credentials committee after discussion on organizational matters.8 3.2 General Statements General statements were then delivered on behalf of the regional groups9 and by individual delegations (22 States and three ngo s). 3.3 Organizational Matters 3.3.1 Intergovernmental Conference (igc-​1) Agenda The President stated her intention mainly to focus discussions at igc-​1 on substantive matters contained in the four elements of the 2011 package, advancement of a draft treaty text, and the dates of the two sessions in 2019. Time will be allocated for general statements. 3.3.2 igc-​1 Organization of Work The President noted the need to adopt a flexible organization of work that might need adjustment during the process. Subsidiary bodies would be established as needed. No parallel meetings would be held during igc-​1, although that may be necessary in later sessions. Her proposals received broad support.

6 7 8 9

A/​AC.287/​2017/​PC.4/​2, 31 July 2017. A/​CONF.232/​2018/​L.1/​Rev.1, 6 March 2018. A/​CONF.232/​2018/​L.2, 5 March 2018. Egypt on behalf of the G-​77 and China; Algeria on behalf of the African Group; the EU; Paraguay for the Land-​Locked Developing Countries (lldc s); Barbados for the Caribbean Community (caricom); Nauru for the Pacific Small Island Developing States (psids); Bangladesh for the Least Developed Countries (ldc s); and Maldives for the Alliance of Small Island States (aosis). Their statements, and those of individual countries, are summarized in the summary of the Organizational Meeting prepared by the iisd Reporting Services . The full texts have been posted on PaperSmart .

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3.3.3 igc-​1 Rules of Procedure After discussions the DipCon adopted the rules of procedure set out in resolution 72/​249, including applying mutatis mutandis the rules of procedure of the General Assembly, for the igc. 3.3.4 Bureau The President proposed that the Bureau be composed of 15 Vice Presidents, three from each regional group, to serve in their national capacities to assist the President in procedural matters. The President expressed the view that, to maintain continuity, the Vice Presidents should not change during the Conference unless necessary. After considerable discussion the President’s proposal was adopted on her assurance that the allocation of numbers would not be a precedent for future meetings in which treaty matters were to be discussed. 3.3.5 Process for the Preparation of the Zero Draft of the Instrument The President proposed preparing in the next few months a relatively short “Aid to Discussions” paper. After considerable debate, the President stated that the paper would not contain treaty text, but may or may not contain a skeleton of the treaty. She indicated that preparation of the zero draft would not begin until the second session of the DipCon (igc-​2) in 2019. 3.3.6 Appointment of the Credentials Committee Upon the President’s proposal the Conference agreed that the members of the Credentials Committee would be appointed from the same nine countries forming the Credentials Committee of the 72nd General Assembly: Capo Verde, China, Dominica, Indonesia, Ireland, Russia, Uganda and the usa. 3.4 Closure of the Organizational Meeting Wednesday morning the President presented a summary of the discussions at the meeting, noting that it will be recorded, translated into all six UN languages, issued as a conference document,10 and posted on the conference website.11 The meeting closed at 10:31 am 18 April 2018.12 10 A/​CONF.232/​2018/​2, 19 April 2018 . 11 . 12 For a more detailed report on the organizational meeting, see the iisd bbnj Briefing Note, 20 April 2018 . See also the short report of an asil observer to the Organizational Meeting, Elizabeth Rodríguez-​Santiago, The organizational meeting of the Intergovernmental Conference on BBNJ, available to members of the Law of the Sea Interest Group .

474 Roach 4

Unpacking the Conference Mandate

The mandate of the DipCon is to elaborate the text of (a)  an internationally legally binding instrument (b) under unclos on the (c) conservation and (d) sustainable use of (e) marine biological diversity of (f) areas beyond national jurisdiction. None of these six elements are defined in A/​72/​249 but should be defined in the ilbi, based on existing uses elsewhere. 4.1 Internationally Legally Binding Instrument (ilbi) What is meant by an internationally legally binding instrument is not explained in resolutions 69/​292 and 72/​249. But an ilbi is normally thought to be a treaty or international convention, or a protocol thereto. 4.2 Under unclos What is meant by “under” unclos is also not explained in resolutions 69/​292 or 72/​249. There are two instruments that “implement” certain provisions of unclos. The first is unga resolution A/​RES/​48/​263, adopted several months before unclos entered into force in December 1994, containing the “Agreement relating to the implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982.” The second is the “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,” adopted on 4 August 1995 by the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. Both of these agreements purport to “implement” portions of unclos. The 1994 agreement in effect amended Part xi of the Convention.13 The 1995 agreement amplified the provisions of articles 63 and 64 of the Convention.14 Thus both agreements are “under” the Convention. In the same fashion a bbnj ilbi would be “under” the Convention if it “implements” the provisions of the Convention relating to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. This conclusion would follow if the provisions of the bbnj ilbi are “fully consistent with the provisions of” unclos as mandated in paragraph 6 of resolution A/​72/​249. Thus the title of the bbnj ilbi could mimic the two earlier agreements and read “Agreement 13 14

Oxman, ‘The 1994 Agreement and the Convention,’ 88 Am. J. Int’l L. 687 (1994); Sohn, ‘International Implications of the 1994 Agreement,’ 88 id. 696. Juda, ‘The United Nations Fish Stocks Agreement,’ Yearbook of International Co-​Operation on Environment and Development 2001/​02, at pp. 53–​58.

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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 Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction.” 4.3 Conservation Conservation has been defined by the fao as “Actions to ensure the sustainability of the resources being exploited.”15 4.4 Sustainable Use Article 2 of the Convention on Biological Diversity defined sustainable use as “the use of components of marine biological diversity in a way and at a rate that does not lead to the long-​term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.”16 4.5 Marine Biological Diversity Marine biological diversity has been defined as “The variability among living organisms from marine ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”17 It necessarily includes fish and marine mammals in addition to marine genetic resources, one of the four topics in the 2011 package. 4.6 Areas beyond National Jurisdiction abnj are defined in unclos as “the high seas” and “the Area.” The high seas are negatively defined in article 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea, or in the archipelagic waters of an archipelagic State.” Article 57 provides that the eez “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” Article 3 provides that the maximum breadth of the territorial sea is 12 nautical miles “measured from the baselines determined in accordance with this Convention.” 15

fao, Marine Fisheries and the Law of the Sea; A Decade of Change, Fisheries Circular No. 853 (fidi/​853), at 28 note 12 (1993) . 16 Convention on Biological Diversity, article 2, Use of terms . 17 Adapted from cbd article 2.

476 Roach The archipelagic waters of an archipelagic State are defined in article 49(1) as the “waters enclosed by the archipelagic baselines drawn in accordance with article 47.” The continental shelf is the other area under national jurisdiction. Pursuant to article 76, the continental shelf comprises the seabed and subsoil of the submarine areas that extend beyond a coastal State’s territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. (The maximum breadth of the continental margin is defined in paragraphs 4–​6 of article 76.) The Area is defined in article 1.1(1) of unclos as “the seabed and ocean floor and the subsoil thereof beyond the limits of national jurisdiction.” The outer limits of national jurisdiction in this context thus means the outer limit of the continental shelf as defined and determined in accordance with article 76 of unclos defining the continental shelf. Thus areas beyond national jurisdiction thus are the high seas and the Area seaward of the outer limits of the eez and continental shelf. 4.7 Status as of the End of the Organizational Meeting No decision on any of the matters discussed in this section had been taken by the DipCon as of the end of the organizational meeting on 18 April 2018. 5

Unpacking the 2011 Package

5.1 Components of the 2011 Package In addition to the overarching topic of bbnj discussed above in section 4, in paragraph 2 of resolution 72/​249, the General Assembly also decided that the negotiations shall address the four topics identified in the 2011 package, in particular, together and as a whole, (a) marine genetic resources, including questions on the sharing of benefits,18 (b) measures such as area-​based management tools, including marine protected areas, (c)  environmental impact assessments, and (d) capacity-​building and the transfer of marine technology. None of these topics are defined or further refined in resolution 72/​249.

18 See University of Strathclyde Centre for Environmental Law and Governance, Briefing: Equity and benefit sharing from marine genetic resources in areas beyond national jurisdiction, April 2018 .

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However, they will need to be defined and addressed in detail in the ilbi. Suggestions for their definitions are set out in the subsections that follow. 5.2 Marine Genetic Resources “Marine genetic resources” could be defined as “genetic material containing functional units of heredity19 collected from living marine resources to which this Agreement applies.”20 The relationship between marine genetic resources and marine biological diversity has not been raised to date at the PrepCom or DipCon. 5.3 Area-​Based Management Tools There does not appear to be an agreed comprehensive definition of area-​based management tools. Such tools include both sectoral and cross-​sectoral tools. Sectoral area-​based management tools include ecological or biological significant areas (ebsa s identified by the cbd), vulnerable marine ecosystems (vme s identified by the fao), fisheries closures (established by regional fisheries management organizations (rfmo s)), particularly sensitive sea areas (pssa s) and marpol special areas (approved by the imo), and areas of particular environmental interest (apei s), preservation reference zones (prz s) and impact reference zones (irz) identified by the International Seabed Authority. Each organization has its own criteria for its tools.21 Cross-​sectoral area-​based management tools include marine protected areas, marine spatial planning22 and strategic environmental assessments.23 19 20

Adapted from cbd article 2. See ‘Use of Marine Genetic Resources,’ First World Ocean Assessment ­chapter  29 . The Royal Society (UK) describes mgr more broadly as “units of heredity (eg genes), their products (eg proteins) and substances synthesised by biological processes such as antibiotics and biomaterials. mgr s include substances directly isolated from marine organisms and their derivatives (in/​ex situ and in vitro).” The Royal Society, Future Ocean Resources:  Metal-​ rich Minerals and Genetics  –​Evidence Pack, p.  34 (May 2017) . 21 Youna Lyons, ‘Identifying Sensitive Marine Areas:  A Tour of the Legal and Scientific Criteria,’ CIL Conference on High Seas Governance:  Gaps and Challenges, 24 April 2017 . 22 Kristina M.  Gjerde, ‘Options for Area-​ based Management Tools Including Marine Protected Areas,’ IUCN Side event BBNJ PrepCom 1, 28 March 2016 . 23 There are several definitions of strategic environmental assessments. Common is the emphasis on the broad programmatic aspects as opposed to the individual projects addressed by environmental impact assessments.

478 Roach 5.3.1 Marine Protected Areas (mpa s) There are a least two definitions of mpa s. The High Seas Alliance has recently proposed the following definition for consideration by the DipCon:  “a geographically defined marine area designated under the ilbi where human activities are regulated, managed or prohibited in order to afford comprehensive protection to achieve long-​term biodiversity conservation and build ecosystem resilience, including prevention of or damage to or degradation of the marine environment.”24 Another possible definition could be “a defined marine geographical area of the high seas or the Area that is afforded greater protection than the surrounding waters or seabed for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”25 5.4 Environmental Impact Assessments There are at least three different definitions of environmental impact assessments (eia). The Convention on Biological Diversity defines eia as “a process of evaluating the likely environmental impacts of a proposed project or development, taking into account inter-​related socio-​economic, cultural and human-​health impacts, both beneficial and adverse.”26 unep describes an eia as “a tool used to identify the environmental, social and economic impacts of a project prior to decision-​making that aims to predict environmental impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts, shape projects to suit the local environment and present the predictions and options to decision-​makers.”27 fao defines eia as “a tool for decision-​makers to identify potential environmental impacts of proposed projects, to evaluate alternative approaches, and to design and incorporate appropriate prevention, mitigation, management and monitoring measures.”28 24 25 26 27 28

hsa Briefing, High Seas Alliance recommendations for Marine Protected Areas under the new internationally legally binding instrument, March 2018 . Adapted from fao, ‘Fisheries Management 4 Marine Protected Areas and Fisheries,’ fao Technical Guidelines for Responsible Fisheries, No. 4, Suppl. 4, p. 9 para. 1.1 (2011) . cbd cop 8 Decision VIII/​8, Voluntary Guidelines on Biodiversity –​Inclusive Environmental Impact Assessment, para. 5 . cbd, What is Impact Assessment? . fao, Environmental Impact Assessment Guidelines for FAO Field Projects, p. 1 .

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5.5 Capacity-​Building and Transfer of Marine Technology unclos article 266(2) addresses capacity-​building by requiring States to promote the development of the marine scientific and technological capacity of States which may need and request technical assistance in this field, particularly developing States, including land-​locked and geographically disadvantaged States, with regard to the exploration, exploitation, conservation and management of marine resources, the protection and preservation of the marine environment, marine scientific research and other activities in the marine environment compatible with unclos, with a view to accelerating the social and economic development of developing States. Development and transfer of marine technology is the subject of unclos Part xiv. The International Oceanographic Commission of unesco defines “transfer of marine technology” as the transfer of instruments, equipment, vessels, processes and methodologies required to produce and use knowledge to improve the study and understanding of the nature and resources of the ocean and coastal areas.29 5.6 Proposals for Implementing These Topics 5.6.1 PrepCom Report The report of the PrepCom included in Sections A and B of Part iii elements for consideration by the DipCon in developing the ilbi. While none of the non-​exclusive elements garnered consensus, those in Section A  were those that “generated convergence among most delegations” while those in Section B “highlight[ed] some of the main issues on which there is a divergence of views.” Topics in Section A were grouped into eleven sections over 11 pages. The first section provided eight broad textual issues for the preambular elements. The second section listed four general elements (1) use of terms, (2) geographic and material scope of application, (3) objectives, and (4) relationship to the Convention and other instruments and frameworks and relevant global, regional and sectoral bodies. The third section addressed conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, providing possibilities for the following six subjects:  (1) general principles and approaches guiding the mandate, (2) international cooperation, (3) mgr including questions on the sharing of benefits, (4) measures such as area-​based

29

ioc-​u nesco, Criteria and Guidelines for Transfer of Marine Technology (CGTMT), section A.2 . Section A.2 continues with a lengthy illustrative list.

480 Roach management tools, including mpa s, (5)  environmental impact assessments, and (6) capacity-​building and transfer of marine technology. The fourth section provided possible institutional arrangements, including (1) decision-​making body/​forum, (2) scientific/​technical body, and (3) Secretariat. The fifth section set out proposals for a clearing-​house function, including modalities, mechanisms and functions. The sixth section would address financial resources and issues relating to the operation of the ilbi. The seventh section would address issues of compliance, but no proposals were included. The eighth section would set out the obligations and modalities for settlement of disputes, the ninth section would address issues relating to responsibility and liability, the tenth section would provide periodic review of the effectiveness of the ilbi in achieving its objectives, each without specific proposals. The eleventh section would include the final clauses, including consistency with unclos and how not to prejudice positions of States on land and maritime disputes. It should be noted that these eleven sections follow the structure of the fish stocks agreement. Section B identified the need for further discussion on the following eight issues: (1) common heritage of mankind and freedom of the high seas; (2) aspects of mgr including regulating access to them, their nature, what benefits to be shared, whether to address intellectual property rights, and whether to provide for monitoring utilization of mgr; (3) most appropriate decision-​ making and institutional set up for area-​based management tools; (4) degree to which process of eia s should be conducted by States or institutionalized, and whether to address strategic eia s; (5) terms and conditions for transfer of marine technology; (6) institutional arrangements and the relationship between new institutional arrangements and existing relevant global, regional and sectoral bodies, as well as how to address monitoring, review and compliance; (7) scope of financial resources required and establishment vel non of a financial mechanism; and (8)  settlement of disputes and responsibility and liability. These issues were not further developed in the half page devoted to Section B.30

30

For a rather negative report on the PrepCom see the four part observations of asil observer, Elizabeth Rodriguez-​Santiago, The progress of the BBNJ negotiations, online at . The first of her observations is posted on

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5.6.2 New Proposals at DipCon Organizational Meeting At the Organizational Meeting two ngo s circulated proposals for implementing several of these elements. The High Seas Alliance recommended certain steps be taken by the igc to implement marine protected areas31 and environmental impact assessments,32 and proposed institutional arrangements to implement them.33 More generally, wwf published its ambition for the ilbi in a brief for governments in March 2018.34 6

President’s Aid to Discussions

As she promised at the organizational meeting, on 25 June 2018 the President’s Aid to Discussions was posted on the UN’s bbnj website.35 The aim of the document is to put “the conference on a path to the preparation of a zero draft” of the ilbi, without containing any treaty text.36 The paper identifies, on the basis of sections iii.A and iii.B of the report of the PrepCom, “issues that need to be further discussed in respect of all elements of the package and cross-​cutting issues”. It includes a limited number of possible questions to be addressed, including, in some cases, possible options in relation thereto. The Aid cautions that “[t]‌he inclusion of questions and options in this document does not imply that there was agreement with or convergence of views among delegations concerning the aspects to which those questions and options relate. Where options are presented, the order of such options should not be construed as

31 32

33 34

35 36

the los Interest Group website, available to members only, at . On the hsa recommendations for mpa s see note 19 above. hsa Briefing, High Seas Alliance recommendations for environmental impact assessment under the new internationally legally binding instrument, March 2018 . hsa Briefing, High Seas Alliance recommendations for Institutional Arrangements under the new internationally legally binding instrument, April 2018 . WWF’s Ambition for an International Legally Binding Instrument on the Conservation and Sustainable Use of Biodiversity in Areas Beyond National Jurisdiction:  Brief for Governments, March 2018 . See also wwf, Introduction to Negotiating a New Global Ocean Treaty, 2018 . As document A/​CONF.232/​2018/​3 . Ibid., paras. 4–​5.

482 Roach indicating a suggested order of priority.” Further “[t]he content of this document is without prejudice to the position of any delegation on any of the matters referred to therein. Further, the elements, questions and options listed are not necessarily exhaustive and do not preclude consideration of matters not included in this document.”37 While the structure of the Aid follows the structure of section iii.A of the PrepCom report to the GA, the Aid does not include these sections as they will be taken up subsequently: section i on Preambular elements, section ii.2 on Scope of application, section vi on Financial resources and issues, section vii on Compliance, section viii on Settlement of disputes, section ix on Responsibility and liability, section x on Review and section xi on Final clauses. 7

First DipCon Session (IGC-​1)

7.1 Program of Work On 25 June 2018 the Provisional Agenda and Provisional Program of Work were posted on the bbnj website.38 The provisional program of work proposed three phases: the first two days, 4–​5 September would be devoted to general exchange of views (item 6). The following four days would be devoted each to consideration of the four topics: mgr, area-​based management tools, environmental impact assessments, and capacity-​building and transfer of marine technology (6–​7, 10–​11 September). The next three days would be devoted to a discussion of these topics without designating the particular subject. The final day of IGC-​1 (17 September) would deal with the remaining items on the agenda (credentials and other matters). After the program was modified on the first day (4 September) to take into account the availability of one facilitator, most of the members of the Bureau were elected by acclamation as there were only three candidates for the three positions in all but one of the groups. Elections for the members of the remaining group with six candidates were successfully held on 6 September. The good progress of work over the next seven days necessitated modifications to the program of work. The general exchange of views occurred from 4 September to lunch the next day. Discussions of the four themes occurred from after lunch 5 September on capacity building and transfer of marine technology through mid-​morning 7

37 38

Ibid., paras. 7, 9. As documents A/​CONF.232/​2018/​3 and 4 respectively, 4 Sept. 2018.

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September and concluded on 13 September. Discussions on area-​based management tools took place mid-​morning on 7 September and mid-​morning 10 September and concluded on Thursday 13 September. Discussions on environmental impact statements occurred mid-​morning 10 September through mid-​afternoon the next day. Discussions on marine genetic resources occurred afternoon 11 September through mid-​afternoon 13 September. As consideration of the four themes concluded mid-​afternoon 13 September, the President moved to agenda item 8.  The Conference Secretary announced the tentative dates for IGC-​2 and IGC-​3 as 25 March-​5 April 2019 and 19–​30 August 2019, respectively, subject to confirmation by GA-​73 in the oceans omnibus resolution. IGC-​1 resumed on Friday 14 September to hear the oral reports of the four facilitators, which have been posted to the bbnj website as set out in section 7.2 below. After hearing delegations views on the process to a zero draft, the President said she will propose a partial treaty text with options by 25 February 2019, and take views on cross-​cutting issues that have not yet been addressed. She anticipated that IGC-​2 would not be a drafting exercise; that would be for IGC-​3. See further section 8 below. IGC-​1 concluded on Monday morning 17 September with acceptance of the report of the Credentials Committee39 and supplemental oral report, and closing remarks by the President (see section 8).40 China made the final intervention emphasizing three things at IGC-​2: (1) stick to the mandate of GA resolution 72/​249 including the absence of a time line, (2) stick to the principle of striving for, but not rushing to, consensus, and (3) stick to using the Convention’s framework. Thereafter the President closed the 30-​ minute final meeting of IGC-​1. 7.2 Facilitators Reports The Facilitators Reports do not provide a comprehensive summary of the extensive and complex discussions that took place, but rather give an overview of the main issues discussed and the general trends observed. They are appended to the President’s closing remarks, as a matter of convenience (see section 8 below).

39 40

A/​CONF.232/​2018/​6, 12 Sept. 2018. Each of the meetings of IGC-​1 are summarized in the daily Earth Negotiations Bulletins online at .

484 Roach 7.2.1 Marine Genetic Resources, Including the Sharing of Benefits Ambassador Felson (Belize) summarized the work on mgr as follows:41 Scope In response to the question on the manner in which geographical scope would be reflected in the international legally binding instrument (the instrument), there seemed to be some convergence that the instrument should apply to marine genetic resources of both the Area and the high seas. However, another approach suggested that the instrument would cover marine genetic resources of the Area only. Pursuant to yet another approach, marine genetic resources of areas beyond national jurisdiction are already sufficiently regulated in unclos. In regard to whether and how to address marine genetic resources straddling and/​or overlapping with areas within national jurisdiction, suggested approaches included ensuring a common approach for marine genetic resources within and beyond national jurisdiction taking into account an ecosystem approach and without prejudice to the rights and jurisdiction of coastal States; focusing on the place of access of the resources rather than the natural habitat of the resources and, as a result, if access took place in areas beyond national jurisdiction the instrument would apply, while other instruments, such as the Convention on Biological Diversity (cbd) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol), would apply if access took place in areas under national jurisdiction; and developing a consultation mechanism or process with coastal States adjacent to the area of collection. It was generally recognized that the instrument should respect the rights and jurisdiction of coastal States over all areas under their national jurisdiction, including the continental shelf within and beyond 200 nautical miles and the exclusive economic zone. In that regard, support was expressed for the inclusion of a “without prejudice” clause in the instrument, possibly drawing from article 142 of unclos and article 4 of the United Nations Fish Stocks Agreement. With regard to the material scope, there seemed to be convergence towards distinguishing between the use of fish and other biological resources for research into their genetic properties and their use as a commodity, with the instrument applying to the former only. In that regard, suggestions were made 41

Adapted from A/​CONF.232/​2018/​7 Annex pp. 21–​25 and .

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to develop a traceability regime to allow for benefit-​sharing in case of change of use. Different approaches were taken to the question of whether the instrument, in addition to marine genetic resources collected in situ, would also apply to ex situ and in silico marine genetic resources and to digital sequence data, as well as to derivatives. Finally, the temporal scope of the instrument was raised. It was suggested that the instrument should not have retroactive application and would therefore only apply to marine genetic resources collected after its entry into force. Access and Benefit-​sharing In response to the question on the manner in which access would be addressed in the instrument, approaches varied. These ranged from not addressing access to options for regulating access. Whether access was regulated or not, there was convergence that marine scientific research should not be hampered. A suggestion was made that the instrument affirm that marine scientific research activities do not constitute the legal basis for any claim to any part of the marine environment or its resources, as reflected in article 241 of unclos. If access were to be regulated, two models were generally put forward: a licensing or permit-​based model, which may borrow elements from the sponsoring State system for the Area; and a notification-​based model, which would require notification of sampling or collection activity in areas beyond national jurisdiction to a designated entity under the instrument prior to or after the activity. Proposed terms and conditions for regulated access included capacity-​ building, the transfer of marine technology, a requirement to deposit samples, data and related information in open source platforms such as databases, biorepositories and/​or biobanks, and/​or contribution to an access and benefit-​ sharing fund. Suggestions were made that prior informed consent of indigenous and local communities whose traditional knowledge was used to unlock the value of marine genetic resources should also be sought. Proposals were made that different access provisions be included in the instrument depending on where the marine genetic resources are sourced or originate from. A suggestion was made that regulated access could be provided for marine genetic resources of the Area. Another suggestion was that there should be different provisions on whether the resources and related data and information are accessed in situ, ex situ or in silico. A suggestion was also made that different levels of access regulation could be envisaged in respect of vulnerable marine ecosystems, ecologically or biologically significant areas or other specially protected areas.

486 Roach With regard to whether to regulate access for all activities, a proposed approach differentiated scientific research and research for commercial purposes, with only the latter being subject to regulation. Under that approach, a procedure providing for change of use or transfer of material to third parties would be developed. In addition to the objectives of the sharing of benefits as reflected in the elements in section iii of the report of the Preparatory Committee, other objectives were put forward. With regard to the principles and approaches guiding benefit-​sharing, references were made to the common heritage of mankind and the freedom of the high seas, with divergent views on their applicability to marine genetic resources of areas beyond national jurisdiction. A proposal was made that the common heritage of mankind could govern the exploitation of marine genetic resources, while the freedom of the high seas could govern access with proper regulation, as appropriate. Principles and approaches additional to those listed in the elements in section iii of the report of the Preparatory Committee were proposed. A suggestion was to not explicitly mention principles and approaches for benefit-​sharing in addition to a list of principles and approaches for the entire instrument. With regard to benefits, various approaches were presented, ranging from including both monetary and non-​monetary benefits in the instrument to excluding monetary benefits. A number of existing instruments were referred to as a useful basis and starting point for the identification of types of benefits. Different approaches were advanced on whether to include an indicative and non-​exhaustive list of benefits or types of benefits in the instrument or develop it later. Various practical arrangements for the sharing of benefits were described in great detail during our deliberations. I cannot do justice to them all and their nuances in this short report but wish to highlight the following elements. Proposals were made that different benefits might accrue at different stages and that States parties to the instrument would be the beneficiaries, in particular developing countries. It was also suggested that the requirement to share benefits would fall on those actors accessing marine genetic resources and benefiting from their exploitation. With regard to how benefits might be used, suggestions included ensuring the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction, building the capacity of States to that end and to access and use marine genetic resources, and promoting scientific research. Those supporting monetary benefit-​sharing suggested that monetary benefits could

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be shared through a fund to support the implementation of the instrument and the activities of its institutional arrangements. It was also suggested that adaptable benefit-​sharing packages and models could more effectively address the different needs and capacities of recipient States. A number of existing instruments and frameworks to be taken into account in developing modalities for the sharing of benefits were referred to in the discussions. There was convergence around the potential benefits of entrusting a clearing-​house mechanism with the task of administering various aspects of the sharing of benefits, including the sharing of information about samples, data and knowledge, expertise; capacity-​building; and promoting cooperation and compliance. It was also proposed that a clearing-​house mechanism could disseminate access and benefit-​sharing information and, in this connection, could administer a trust fund to promote the equitable sharing of benefits under the instrument. A further proposal was made to develop a protocol, code of conduct or guidelines within the clearing-​house mechanism in order to ensure environmental protection, compliance and transparency in the use of marine genetic resources. It was generally recognized that the special circumstances of developing countries, in particular the least developed countries, landlocked developing countries, geographically disadvantaged States and small island developing States, as well as coastal African States, should be taken into account in the modalities for the sharing of benefits. Different approaches were put forward as to whether to address intellectual property rights in the instrument. While suggestions were made for the development of a sui generis system for marine genetic resources of areas beyond national jurisdiction and for mandatory disclosure of source or origin requirements, other options highlighted ongoing work on genetic resources and intellectual property rights in competent international fora, including under the World Trade Organization Agreement on Trade-​Related Aspects of Intellectual Property Rights and the World Intellectual Property Organization.

Monitoring of the Utilization of Marine Genetic Resources of Areas beyond National Jurisdiction Different approaches were put forward as to whether to monitor the utilization of marine genetic resources. Those who favored such monitoring proposed a robust “track and trace” regime which would collect and disclose information concerning the geographic location or source of marine genetic resources as well as research and collection activities. A suggestion was made that it could also provide conditions for access to samples, data and information.

488 Roach In terms of the practical arrangements, proposals were made for an online open-​access platform providing for obligatory prior electronic notification, the granting of non-​exclusive licenses or co-​exclusive licenses for the use of marine genetic resources and assigning identifiers to marine genetic resources. Options regarding who would carry out such monitoring included an existing body, a clearing-​house mechanism, a secretariat, or a scientific and technical body under the instrument. Issues from the Cross-​Cutting Elements Use of terms –​There was convergence around the idea that key terms relevant to this element of the package could be defined and that such definitions should draw on and be consistent with other relevant legal instruments and frameworks. Some specific proposals regarding definitions were put forward. However, it was also noted that which terms would need to be defined would depend on the terms used in the instrument. Relationship to the Convention and other instruments and frameworks and relevant global, regional and sectoral bodies –​It was generally recognized that all the provisions of the instrument must be consistent with and should not undermine other existing legal instruments and frameworks and relevant global, regional and sectoral bodies. Proposals were made to include a specific provision recognizing this general principle. General principles and approaches –​While some support was expressed for including general principles and approaches specific to marine genetic resources, including questions on the sharing of benefits, another approach was that no general principles and approaches in addition to those that would apply to the entire instrument would be spelled out in this section of the instrument. In addition to those mentioned previously for benefit-​sharing and those included in the elements in section iii of the report of the Preparatory Committee, a number of principles and approaches were mentioned. Different views were expressed as to whether the common heritage of mankind and/​or the freedom of the high seas would apply to marine genetic resources, including the questions on the sharing of benefits. International cooperation  –​There was some convergence around the idea that the instrument should include an obligation to cooperate with respect to marine genetic resources, including the questions on the sharing of benefits, and that the special requirements of developing countries for capacity-​building and transfer of marine technology should be recognized in that regard.

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Institutional arrangements –​It was proposed that the institutional arrangements under the instrument could be responsible for monitoring and managing access and benefit-​sharing. Various elements were suggested, including roles for a decision-​making body, a scientific and technical body with advisory competence, a secretariat, a clearing-​house mechanism, and an access and benefit-​sharing mechanism. In considering such arrangements, it was noted that best practices and lessons learned should be drawn from existing frameworks. Suggestions were made that existing bodies could be utilized or institutional arrangements under the instrument could have some relationship with such bodies. It was also proposed that consideration should be given to coordination with regional arrangements. Clearing-​house mechanism –​There was convergence around the idea of a clearing-​house mechanism. In establishing such a mechanism, it was suggested that guidance could be drawn from existing frameworks, including the cbd and its Nagoya Protocol, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization, the International Seabed Authority and the United Nations Framework Convention on Climate Change. It was also proposed that a clearing-​house mechanism link to regional and sub-​regional clearing-​house mechanisms. Calls were made for the clearing-​house mechanism to be easily accessible, not cumbersome and user-​friendly. Suggestions were made that the instrument should provide for a single clearing-​house mechanism rather than several, each related to the different issues of the package. 7.2.2 Area-​Based Management Tools, Including Marine Protected Areas Ms. Alice Revell (New Zealand) summarized the work on abmt s as follow:42 Objectives of abmt s, Including mpa s There was general convergence that abmt s, including mpa s, are measures to achieve the objective of the international legally binding instrument (the instrument), namely conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (abnj). There seemed to be convergence towards including certain overarching objectives in the instrument that would apply to the full range of abmt s, including mpa s, such as the promotion of cooperation and coherence in the use of abmt s, including mpa s, by regional and sectoral bodies and the

42

Adapted from A/​CONF.232/​2018/​7 Annex pp. 10–​15 and .

490 Roach implementation of existing obligations, in particular under the United Nations Convention on the Law of the Sea (unclos). Reference was also made to the Aichi Biodiversity Targets and Sustainable Development Goal 14. The objective of establishing connected networks of mpa s to ensure long-​term conservation and sustainable use was also proposed. It was also proposed that the objective of the instrument should not be to create a mechanism to establish abmt s in abnj. There was convergence that abmt s, including mpa s, are tools to be established to achieve objectives specific to the identified area. There also seemed to be some convergence towards including specific objectives for different types of tools. In this regard, it was suggested that the instrument could provide a list of such specific objectives or allow for their elaboration at a later stage.

Relationship to Measures under Relevant Instruments, Frameworks and Bodies General Assembly resolutions 69/​292 and 72/​249 were recalled, in particular the recognition that the instrument should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. There was general convergence that the instrument should foster greater cooperation and coherence, including between relevant regional and sectoral bodies. Examples of such cooperation at the regional level were provided. Proposals were made that the instrument should, to a large extent, rely on existing frameworks and bodies to implement measures, and the point was made that no hierarchy between the global instrument and regional instruments should be established. Proposals were also made to set up a process of recognition of existing measures, either explicit or inherent, provided that those measures also comply with the objectives of the instrument. Recognition of measures under existing mechanisms would promote the establishment of a global network. It was generally recognized that the instrument should respect the rights and jurisdiction of coastal States over all areas under their national jurisdiction, including the continental shelf within and beyond 200M and the exclusive economic zone. There was some convergence on the need for consultations with adjacent coastal States during the process of establishment of abmt s, including mpa s, to address also issues of compatibility with measures established by adjacent coastal States. The issue of whether or not the consent of adjacent coastal States would be necessary to establish abmt s, including mpa s, in abnj was raised.

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Process in Relation to abmt s, Including mpa s It was generally recognized that the process that could be established under the instrument in relation to abmt s, including mpa s, in particular with respect to decision-​making and institutional set up, would need to be inclusive, transparent, consistent with relevant international instruments, including the United Nations Charter and unclos, and enhance cooperation and coordination, while not undermining existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. The point was made that any new process under the instrument and the existing regional and sectoral processes should be mutually supportive, through a collaborative effort designed to contribute to the overall goals of the instrument. Different approaches were proposed regarding the overall process to be set out in the instrument. While they could be clustered broadly into global, hybrid and regional approaches, it may be more useful to consider the proposals as ranging along a spectrum of such options. One approach, which favoured a robust set of functions to be mandated to the process and bodies established under the instrument, emphasized the need to establish a coherent process for the establishment, implementation and enforcement of abmt s, including mpa s, which would be applicable to all States, address the fragmentation, inconsistencies and gaps in the mandates of the existing regional and sectoral bodies, while envisaging their participation in the overall process. Another approach favoured a process which would rely more extensively on existing processes and the responsibilities of existing regional and sectoral frameworks in relation to abmt s, including mpa s, while envisaging that some decision-​making responsibilities and functions would be carried out at a global level. This type of process aimed at promoting cooperation and coordination and avoiding overlapping mandates. A proposal was made to promote a case-​by-​case approach to the identification of the required abmt and which body/​bodies (whether global, regional or a group of States) would be in the best position to take relevant decisions. A third approach favoured a regional approach, viewing the instrument as a mechanism to strengthen existing regional bodies with the relevant expertise and competence to establish abmt s, while promoting enhanced cooperation and coordination between these and other relevant bodies. To this end, model cooperation agreements could be annexed to the instrument. A fourth approach envisaged that the instrument would provide general principles and approaches on the establishment of abmt s, while recognizing the full authority of regional and sectoral organizations in decision-​making,

492 Roach monitoring and review, without oversight from a global mechanism. Where those organizations do not exist, States could decide to establish them. Notwithstanding these different approaches, there seemed to be a growing convergence on the need for a global decision-​making body; a mechanism to provide scientific advice to that decision-​making body, such as a subsidiary scientific or technical committee, a pool of experts, or reliance on existing regional scientific bodies; and a secretariat, to discharge administrative functions and possibly also consultation and coordination functions. The possibility of establishing additional subsidiary bodies was also put forward. Different approaches regarding the roles and responsibilities of the global decision-​making body were proposed. One approach envisaged a global body that would take binding decisions, including on the designation of multi-​ purpose mpa s and related conservation and management measures, and review, monitoring and compliance. Decisions on the establishment of abmt s, including mpa s, would be taken following a process of consultation with a wide range of stakeholders, including existing regional and sectoral bodies, and based on the assessment and recommendations of a scientific or expert body. As part of its review, the scientific body would also consult with relevant bodies and organizations that may be affected by any proposed measures, including to ensure that regional characteristics are fully reflected. It would also review and make recommendations to the decision-​making body on the standards and criteria to be used for identification of areas and review the effectiveness of the established mpa s and the progress in achieving its objectives. Another approach envisaged a global decision-​making body tasked, for example, with setting overall guidelines, standards and objectives; making high level decisions, such as on the identification of priority areas for establishment of abmt s, including mpa s; establishing processes for cooperation and coordination among existing regional and sectoral bodies and States; administering a global information database; and undertaking regular review of implementation of the instrument. Site selection was also identified as a potential role of that body, based on the advice of a scientific and technical body, as well as the recommendation of management measures, for consideration by relevant regional and sectoral bodies. The latter bodies would adopt relevant conservation and management measures; monitor and enforce such measures; cooperate and coordinate with global, regional and sectoral bodies and States; share information and data; and report on implementation. Identification of Areas With regard to the process for identification of areas within which protection may be required, there seemed to be convergence that standards and

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criteria should be developed on the basis of the best available science, including existing international criteria and standards. In addition to the indicative list of criteria contained in the elements in section iii of the report of the Preparatory Committee, criteria proposed during the discussions included the adverse impacts of climate change and ocean acidification, and traditional knowledge. The need to retain the flexibility to review and update standards and criteria as scientific knowledge develops was generally recognized. Designation Process In terms of the designation process, it was broadly agreed that proposals to establish abmt s, including mpa s, could be submitted by States parties to the instrument, either individually or collectively, including through competent organizations. Reference was made to the possibility that proposals could be submitted by other stakeholders, such as States entitled to become parties to the instrument, the scientific and technical body, civil society, or natural or juridical persons sponsored by a State party. With respect to the content of proposals, some elements additional to those specified in section iii of the report of the Preparatory Committee were referenced, including traditional knowledge. Different approaches were proposed regarding the duration of measures. One approach favoured specifying the duration, which would be linked to the objectives of the proposed measures. Another approach was that measures should not contain a sunset clause, but should be regularly reviewed to allow for updating, amendment or revocation as necessary. Regarding consultation on and assessment of proposals, there seemed to be a general recognition that proposals should be made publicly available and that consultations should be time-​bound, inclusive, transparent and open to all relevant stakeholders. To this end, it was proposed that an indicative list of stakeholders might be developed, which could include all States, including adjacent States, and relevant global, regional and sectoral bodies as well as industry, civil society, scientists, academia, and indigenous peoples and local communities with relevant traditional knowledge. The issue was raised as to whether the modalities of the consultation process should be articulated in the instrument itself, and if so, which details should be included. The importance of consultation and cooperation with existing regional and sectoral bodies and fully incorporating their perspectives was particularly emphasized. It was also noted that the special circumstances of sids needed to be taken into account.

494 Roach A proposal was made that following these consultations, the proponent(s) of a measure should be given an opportunity to respond to the views expressed by stakeholders and amend their proposal. There was general recognition of the need to establish a process for scientific review or assessment of proposals. The importance of regional characteristics and ensuring that any process of scientific review incorporated sufficient regional expertise, including traditional knowledge, was raised in that regard. Different approaches were put forward regarding decision-​making on matters related to abmt s, including mpa s, in light of the various proposals on institutional arrangements. While the importance of consensus as the basis of decision-​making by a global body was generally recognized, it was also proposed that, where consensus could not be achieved, voting might be resorted to. Different views on the involvement of adjacent coastal States in decision-​ making were put forward. It was noted that the establishment of abmt s, including mpa s, would necessarily take time, therefore interim measures may need to be applied. Implementation There was convergence on the responsibility of States parties to implement measures, including management plans, adopted in the context of abmt s, including mpa s, by regulating activities and processes under their jurisdiction or control, including their flagged vessels. It was proposed that States non-​parties also be encouraged to implement such measures. In this regard, it was noted that nothing in the instrument should prejudice the right of States parties to adopt stricter measures with respect their flagged vessels, nationals, or such activities and processes. Different approaches, yet to be fully explored, were put forward regarding enforcement. Monitoring and Review The need for monitoring and regular review of abmt s, including mpa s, established under the instrument, including in support of an adaptive management approach, was generally recognized. There was some convergence that reporting requirements should be set out in the instrument. There was also some convergence that monitoring, and review functions could be allocated to a subsidiary body established under the instrument. A compliance mechanism was also proposed. In this context, the need for standardized reporting procedures was emphasized.

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Issues from the Cross-​Cutting Elements Regarding the cross-​cutting elements, it was proposed that some of them would benefit from additional discussion once the text and concepts related to abmt s, including mpa s, have been further elaborated. Use of terms  –​There was convergence that abmt s and mpa s could be defined in the instrument and a number of international instruments were cited as possible sources of such definitions. Some specific definitions were proposed. Relationship to unclos and other instruments and frameworks and relevant global, regional and sectoral bodies and institutional arrangements –​The views on the relationship to unclos and other instruments and frameworks and relevant global, regional and sectoral bodies, as well as the views on institutional arrangements were presented earlier in relation to sections 4.2 and 4.3 of the President’s Aid to Discussion. General principles and approaches –​A number of general principles and approaches relating to abmt s, including mpa s, were cited. The view was expressed that these general principles and approaches could be operationalized through the measures and processes established by the instrument. International cooperation  –​The issue of cooperation was discussed in-​ depth under sections 4.2 and 4.3 of the President’s Aid to Discussion. Clearing-​house mechanism  –​There was convergence on the need for a clearing-​house mechanism to share information relating to abmt s, including mpa s, which would serve as a repository for baseline data, provide information on relevant activities, facilitate the sharing of best practices amongst State parties, practitioners and stakeholders, and support capacity-​building. One proposal was for such a mechanism to serve as a hub for a network of regional and/​or sub-​regional clearing-​houses. 7.2.3 Environmental Impact Assessments Mr. René Lefeber (The Netherlands) summarized the work on eia s as follows:43 Obligation to Conduct Environmental Impact Assessments There was convergence that articles 204 to 206 of the United Nations Convention for the Law of the Sea (unclos) could form the basis of the

43

Adapted from A/​CONF.232/​2018/​7 Annex pp. 16–​20 and .

496 Roach obligation to conduct environmental impact assessments (eia s) in the international legally binding instrument (the instrument). Reference was also made to the general obligation to protect and preserve the marine environment in article 192, relevant case law and customary international law as additional sources of existing obligations. There was also convergence around the view that the obligation to conduct eia s related to planned activities under the jurisdiction or control of States that may cause substantial pollution of or significant and harmful changes to the marine environment, and a number of options were presented as to how to determine State jurisdiction and /​or control.

Relationship to Environmental Impact Assessment Processes under Relevant Instruments, Frameworks and Bodies Bearing in mind General Assembly resolutions 69/​292 and 72/​249 on the need to ensure that this process and its results do not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies, there was convergence on the importance of avoiding duplication with existing eia obligations. The need to establish procedures for consultation, coordination and cooperation with existing instruments, frameworks and bodies was generally recognized. Specific options to foster a mutually supportive and coherent eia framework in areas beyond national jurisdiction were identified during the discussions, including: a) The eia threshold in the instrument would constitute the minimum standard. This could be accompanied by a consultation mechanism with relevant regional and sectoral frameworks to facilitate a harmonized approach; b) No eia would be required under the instrument for any activity conducted in accordance with rules and guidelines appropriately established by existing relevant regional and sectoral bodies, irrespective of whether or not an eia was required under those rules or guidelines; c) The instrument would not require eia s where relevant sectoral or regional bodies with mandates for such assessments in areas beyond national jurisdiction already existed; d) A functionally equivalent eia undertaken under another framework would meet the requirements of the instrument. It was suggested that the threshold contained in the instrument should not serve to undermine existing eia requirements with a lower threshold.

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Activities for Which an Environmental Impact Assessment Is Required Various proposals were put forward regarding the threshold for determining the activities for which an eia would be required. Some proposals called for the adoption of the threshold found in article 206 of unclos, while other proposals highlighted the threshold set out in the Madrid Protocol. In that context, there was some recognition of the benefits of a tiered threshold approach requiring a comprehensive eia only for activities that meet the threshold in unclos article 206. There was convergence on the benefit of developing guidance to further elaborate on and operationalize the obligation to conduct an eia and its relevant threshold(s). Specific modalities for developing this guidance were identified during the discussion, including that criteria could be developed by a scientific or technical body established under the instrument, that guidance be drawn from existing standards, guidelines and practices, and/​or that it be based on best available scientific evidence. A number of examples of specific criteria that could be considered were also referred to. There seemed to be some convergence on an indicative, non-​exhaustive list of activities that would require an eia, provided it could be regularly and easily amended either by its inclusion in an annex to the instrument or as guidance to be developed later. However, it was noted that the impact of an activity depended on its scope and the area where it was undertaken, making such lists inadequate. It was also noted that lists could be difficult to negotiate and also to amend. There was convergence on the view that cumulative impacts should be considered in eia s. However, different options emerged on how this would be implemented, in particular whether processes, which originate from land-​based activities, such as climate change, would be considered. There was convergence on the need to protect areas identified as ecologically or biologically significant or vulnerable, and various proposals were made on how to achieve this. Some proposals called for a specific provision providing stricter protection for those areas, including by requiring eia s for all activities proposed in them. Other proposals noted that the significance of these areas should be considered within the eia process, which would lead to the similar result of granting such areas additional protection. Environmental Impact Assessment Process There was convergence on most of the procedural steps that should be included in the eia process as listed in the elements contained in section iii of the report of the Preparatory Committee. Alternative proposals were made on the

498 Roach inclusion of the publication of decision-​making documents, and the modalities for public notification and consultation, as well as monitoring and review. Some additional steps were proposed such as to address compliance and enforcement. There were different proposals made regarding the level of detail to be included in the instrument as to the requirements in the eia process. Various proposals were made as to whether the process should be “internationalized”; some called for States to be responsible for the entire process, to promote efficiency and timeliness, while others called for the establishment of institutional arrangements to manage at least part of the process, such as decision-​making and monitoring and review, in order to promote global coherence and ensure that the standards in the instrument were met. It was also suggested that the internationalization of the process would assist developing States, in particular small island developing States (sids). The need to identify a standard for approving the activity following an eia was raised. While some possible standards were suggested in this context, additional consideration of this question may be needed. Content of Environmental Impact Assessment Reports There seemed to be convergence on most of the elements that should be included in eia reports as reflected in the elements in section iii of the report of the Preparatory Committee. In addition, it was proposed that eia reports should indicate the sources of information contained in the report, the environmental record of the proponent, and an environmental management plan. It was further proposed that, consistent with article 205 of the Convention, reports should be published and made available to all States. There appeared to be growing convergence that the instrument should not include too much detail on the content of eia reports, and that such detail could be elaborated on later by an institutional arrangement or be annexed to the instrument. Proposals were made as to how the instrument would address transboundary impacts. Under the proposed activity-​based approach the instrument would only cover those activities taking place in areas beyond national jurisdiction, while under the proposed impact-​based approach all activities with impacts on areas beyond national jurisdiction would be covered. Monitoring, Reporting and Review There seemed to be a general recognition that a monitoring, reporting and review mechanism could be set out under the instrument. However, various approaches were proposed as to the manner in which the instrument would set out the obligation to ensure that the impacts of authorized activities in

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areas beyond national jurisdiction are monitored, reported and reviewed, in particular, on whether to internationalize this step in the process. Some proposals called for institutional arrangements such as a decision-​making body, scientific body or compliance committee, to oversee this step in the process to some extent, while other proposals called for this step in the process to be solely managed by the State under whose jurisdiction or control an activity was taking place. There was convergence on the view that adjacent coastal States should be notified about proposed activities. However, there were different approaches as to the extent to which adjacent coastal States would be consulted and whether they would be involved in decision-​making. Strategic Environmental Assessments With regard to the inclusion of provisions relating to strategic environmental assessments (sea s) in the instrument, different approaches were put forward. Those who supported the inclusion proposed different options for the possible scope of such assessments, the level at which sea s would be undertaken and who would undertake them. Reference was made to possible models for the conduct of sea s as well as to relevant guidance material. It was suggested that sea s could be considered a form of eia to be conducted at an early stage of planning. It was also noted that sea s could inform the development of area-​ based management tools under the instrument. Another proposed approach was to exclude sea s from the instrument because of their complexity, cost, and the length of time required for their completion. It was also considered unclear who could undertake such assessments in areas beyond national jurisdiction. Issues from the Cross-​Cutting Elements Use of terms –​There was some convergence on the need to include definitions of some key terms relevant to eia s. A number of such key terms were highlighted in this regard. It was noted that the terms in need of definition would depend on the content of the instrument and could be determined at a later stage and should be consistent with those existing in other instruments. Specific definitions were proposed for eia, strategic environmental assessment, environment, and cumulative effects. Relationship to the Convention and other instruments and frameworks and relevant global, regional and sectoral bodies –​There was convergence on the need to promote cooperation with other instruments, frameworks and global, regional and sectoral bodies. It was suggested that the instrument provide for formal cooperation between existing organizations according to their

500 Roach competences and relevant institutions, procedures or mechanisms established by the instrument. It was also proposed that the instrument should ensure that effective eia s were conducted for all activities in areas beyond national jurisdiction. Further consideration will need to be given to relationships with specific instruments, relevant global, regional and sectoral bodies as work on the instrument progresses. General principles and approaches –​There was convergence on the need to include guiding principles and approaches in relation to eia s, in addition to principles and approaches with relevance to the entire instrument. A number of possible principles and approaches were proposed. International cooperation –​It was generally recognized that international cooperation would be essential to the conduct of eia s in areas beyond national jurisdiction, in accordance with the obligation to cooperate in unclos. It was suggested that such cooperation should take into account the special needs of developing countries and address for example the need for technical and financial assistance as well as development of institutional capacity and the transfer of marine technology. It was further proposed to recognize the special case of sids. A number of examples of possible relevant modalities for cooperation were highlighted, including consultation with adjacent States and other States, and consultation, cooperation and sharing of information with relevant sectoral and regional bodies. Institutional arrangements –​Among the proposals that were made regarding internationalization of the eia process, those who favored internationalization of elements of the eia process put forward options which envisioned roles for a decision-​making body, a scientific body and a secretariat. Proposals were also put forward for a bbnj Fund and a compliance body. Clearing-​house mechanism  –​There was convergence on the importance of a clearing-​house mechanism to share information relevant to eia s, such as by serving as a repository for baseline data, providing information on planned activities as well as access to the results of completed assessments subject to confidentiality requirements, sharing of best practices and facilitating capacity-​building. One proposal was for such a mechanism to serve as a hub for a network of regional and/​or subregional clearing-​houses. Another proposal was for the mechanism to include an international body responsible for ensuring fairness and transparency in the eia process through uniform guidelines, as well as monitoring and review methods. Attention was also drawn to existing instruments, mechanisms and frameworks which could be taken into account in establishing a clearing-​house mechanism.

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7.2.4 Capacity-​Building and Transfer of Marine Technology (cb-​t mt) Ambassador Uludong (Palau) summarized the work on cb-​t mt as follows:44

Objectives of Capacity-​Building and the Transfer of Marine Technology There was strong support on the importance of giving a concrete expression to capacity-​building and the transfer of marine technology as a crucial means of implementing the overarching objective of the international legally binding instrument (the instrument), namely, the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Different approaches were put forward regarding the manner in which the objectives of capacity-​building and the transfer of marine technology could be included in the instrument to give effect to the duty to cooperate in the United Nations Convention on the Law of the Sea (unclos). In this regard, options that emerged included incorporating multiple objectives focusing on capacity-​ building and the transfer of marine technology in the elements of the package, preceded by general obligations on promoting cooperation to develop capacity and the transfer of marine technology; or including a single objective in the instrument linked to the overarching objective of the instrument, namely to conserve and sustainably use marine biological diversity of areas beyond national jurisdiction. It was generally recognized that capacity-​building and the transfer of marine technology should be responsive to the needs of developing countries, in particular those of small island developing States and least developed countries. Reference was also made to landlocked developing countries, geographically disadvantaged States as well as coastal African States, middle income countries, and environmentally challenged and vulnerable countries. A number of existing instruments and their provisions were mentioned as possible references for how to reflect the need to address the special requirements of developing countries in the instrument. Further consideration should be given to the nature of the capacity-​building and the transfer of marine technology commitments to be included in the instrument: whether they should mandatory and/​or voluntary.

44

Adapted from A/​ CONF.232/​ 2018/​ 7 Annex pp. 5–​ 9 and .

502 Roach

Types of and Modalities for Capacity-​Building and Transfer of Marine Technology There was support for the idea of including in the instrument an indicative, non-​exhaustive and flexible list of broad categories of types of capacity-​ building and the transfer of marine technology that could be updated. Some also suggested that the list could be developed by States subsequently. Several examples of types of capacity-​building and transfer of marine technology activities to be included in the instrument were provided during the discussions. A number of existing instruments were referred to as a useful basis and starting point for the identification of types of capacity-​building and the transfer of marine technology, including unclos, the Criteria and Guidelines for the Transfer of Marine Technology of the Intergovernmental Oceanographic Commission (ioc) of unesco, the Convention on Biological Diversity (cbd), the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the cbd, the United Nations Conference on Trade and Development (unctad) draft International Code of Conduct on the Transfer of Technology, and the United Nations Framework Convention on Climate Change (unfccc). Specific modalities for the provision of capacity-​building and transfer of marine technology were also identified, including that the modalities of capacity-​building and the transfer of marine technology should be simple, transparent and sustainable. It was also generally recognized that capacity-​ building and the transfer of marine technology should be meaningful. It was suggested that the needs and priorities of developing countries could be ascertained through needs assessments including possibly on a case-​by-​case basis, and/​or coordinated at the regional level to address regional characteristics to be considered by a decision-​making body under the instrument. There was also support for the view that developing countries, in particular small island developing States, could be provided assistance upon request in preparing a needs assessment. There was some support for the view that capacity-​building initiatives should be able to benefit not just governments, but also other stakeholders, such as groups of indigenous peoples, holders of traditional knowledge and local communities. It was generally recognized that forms of cooperation for capacity-​building and the transfer of marine technology could include North-​South, South-​South and triangular cooperation as well as partnerships with relevant stakeholders with specific expertise, including public/​private partnerships. The importance of engaging the private sector in the provision of capacity-​building was also underscored.

BBNJ: Developments since Yogyakarta

503

The forms of cooperation and assistance in relation to each of the elements of the package, in order to identify what kind of capacity-​building and transfer of marine technology would be required with regard to marine genetic resources, including the sharing of benefits, area-​based management tools, including marine protected areas, and environmental impact assessments, could benefit from further elaboration. It was generally recognized that unclos Part xiv, as well as the ioc Criteria and Guidelines for the Transfer of Marine Technology, could constitute useful starting points for the development of modalities or terms for the transfer of marine technology. It was noted that existing obligations in unclos should not be merely repeated but enhanced. Different options were put forward with respect to the terms and conditions for the transfer of such technology. Different views were also expressed on whether or not to address intellectual property rights in the context of transfer of marine technology. There was support for the view that the instrument could enhance transparency, coordination and cooperation, including through a clearing-​house mechanism, to assist States, particularly developing countries, to implement the instrument. There was support around having a clearing-​house mechanism and the development of a capacity-​building network, particularly through web-​based tools providing an open access platform. There was also support for the idea that such a clearing-​house could serve as a platform to access, evaluate, publish and disseminate information, as well as to approve requests for capacity-​ building and transfer of marine technology on a case-​by-​case basis. It could provide greater visibility in allowing States to articulate needs and be aware of existing opportunities and projects. The work of other organizations was mentioned as a source of inspiration with respect to the identification of other functions that the clearing-​house mechanism could carry out. It was also suggested that a list of functions could be identified at a later stage. It was generally recognized that the clearing-​house mechanism could be a “one-​stop-​shop” and that it could link to existing clearing-​house mechanisms and enable stakeholders to access those networks. I  will come back to the issue of a clearing-​house mechanism later when reporting on cross-​cutting elements. Funding It was generally recognized that funding would be required for capacity-​ building and the role of a funding mechanism in this regard. The need for adequate, sustainable and predictable funding was emphasized as well. Different approaches were advanced regarding the provision of funding and resources.

504 Roach There was support for the idea that existing funding mechanisms, such as the Global Environment Facility, could be considered towards contributing to capacity-​building and transfer of marine technology under the instrument. However, there were different views regarding the establishment of a new funding mechanism. Also, various views were presented regarding whether funding for capacity-​ building and the transfer of marine technology should be included as an obligation under the instrument and whether funding should be provided on a mandatory or on a voluntary basis. Monitoring and Review It was generally recognized that capacity-​building and the transfer of marine technology would need to be monitored and reviewed regularly. Proposals were made on how such review could be carried out, including who would carry out the review. There was some support for the view that a subsidiary body established under the instrument could be entrusted with the monitoring and review functions which could report to the decision-​making body to be established under the instrument. Some examples of functions put forward included the periodic review of the modalities for capacity-​building and the transfer of marine technology to ensure that the needs of States are being met, through regular, transparent and comprehensive reports. Issues from the Cross-​Cutting Elements Use of terms –​Different approaches were advanced regarding whether definitions of key terms should be included in the instrument. The need for consistency with the definitions contained in unclos and other relevant instruments was stressed. Relationship to the Convention and other instruments and frameworks and relevant global, regional and sectoral bodies –​There seemed to be a general recognition that a specific provision should be included on the relationship to unclos and other instruments and frameworks and relevant global, regional and sectoral bodies, but the question remains whether a specific provision should be included in each of the sections of the instrument or only one general provision. General principles and approaches  –​Several principles and approaches were put forward for inclusion in the instrument. Further consideration will need to be given as to how the instrument would give best effect to the identified general principles and approaches in the context of capacity-​building and the transfer of marine technology.

BBNJ: Developments since Yogyakarta

505

International cooperation –​The need to operationalize the duty to cooperate in unclos to address capacity-​building and the transfer of marine technology was generally highlighted. It was suggested that the duty to cooperate could be operationalized in the instrument, including through consultation with adjacent coastal States, and through collaborative initiatives among Governments and other stakeholders. Institutional arrangements –​It was generally recognized that a mechanism would be required to oversee the capacity-​building and transfer of marine technology framework under the instrument. Different options for institutional arrangements under the instrument, including with reference to using existing bodies, institutions and mechanisms, were put forward. Clearing-​house mechanism –​There was support for the idea that a clearing-​ house mechanism under the instrument would be central to the entire instrument. It was suggested that guidance with respect to the establishment of such a mechanism could be drawn from existing clearing-​house mechanisms, such as those of the cbd, ioc, International Seabed Authority and unfccc, to also avoid duplication. There was recognition that linking regional networks could assist the effectiveness of such a mechanism. There was also support for the notion that such a clearing-​house mechanism could cover various elements of the instrument beyond capacity-​building and the transfer of marine technology, including marine genetic resources, including the sharing of benefits, area-​based management tools, including marine protected areas, and environmental impact assessments.

8

President’s Summary and Concluding Remarks

The President delivered her concluding remarks, providing her positive views of DipCon-​1, her plans for intersessional work and for DipCon-​2 in March 2019. She also provided an overview of progress made during IGC-​1, including: –​ modalities for a clearinghouse and different options on funding; –​ the “unpacking of the spectrum of options” for the process on abmt s; –​ practical modalities for eia s, and the role of sea s; and –​ approaches to move forward on abs from mgr s. She confirmed that she would prepare a document, well in advance of IGC-​ 2, to facilitate discussions and text-​based negotiations, containing treaty language and reflecting options on the four elements of the package, taking into

506 Roach account all inputs during IGC-​1, as well as the PrepCom’s report. She lauded delegates’ flexibility, commitment, and well-​prepared interventions.45 Her remarks have been issued as a conference document in all six official languages.46 9

Conclusions

The cooperative work at IGC-​1 bodes well for initial consideration at IGC-​2 in March 2019 of the text of some provisions of the draft treaty. Many delegations welcomed the prospect of text to consider inter-​sessionally and then at IGC-​2 turning to developing texts that might ultimately achieve consensus, even though treaty-​format negotiations are not expected to begin until IGC-​3 in August 2019. One might expect that the President’s inter-​sessional proposals will focus on the four elements of the package and those cross-​cutting issues discussed in the informal working groups. As the proposals will likely appear before this chapter is published, they can be discussed in 2019 perhaps after IGC-​2. 45 46

The four-​page analysis of igc-​1 in Earth Negotiations Bulletin, vol. 25, No. 179, 20 Sept. 2018, is considerably less positive. A. CONF.232/​2018/​7, 20 September 2018.

Index algal blooms 119, 121, 122 anaerobic waste digestion 123 archipelagic sea lanes 318, 319, 320, 325, 327–​333, 336 archipelagic transit passage 25–​26, 38, 201, 222, 233, 234, 308–​316, 317, 318, 325, 326, 328 archipelagic waters 217, 227, 243, 318, 320, 321, 323–​325, 328–​330, 336, 475–​476 Arctic Ocean 9, 13–​15, 17, 200, 214, 352 Articles on Prevention 139, 144, 146, 152, 156–​158 Asia-​Pacific region 9, 35–​39, 56, 126, 183, 194, 307–​315 Automation 19, 20, 28, 397 Biohazard 396–​397 biological diversity of areas beyond national jurisdiction (bbnj) 443–​468, 469–​506 blue economy 44, 51–​57 Checklist Manifesto 394–​406 climate change 6, 12, 56, 120, 123, 162, 466, 489, 493, 497, 502 compulsory conciliation 99–​109, 115 computer virus 392 conflict resolution 238 cooperation 15, 35–​39, 40–​44, 47–​51, 55–​62, 63–​66, 68, 70, 75, 76–​78, 80–​82, 83–​98, 107, 110, 126, 128, 132, 135, 137, 142, 144, 150, 153, 158, 160, 163, 185, 198, 204, 205, 235, 256, 263, 339–​355, 391, 399, 410, 420, 422, 427, 428, 436, 446–​450, 462, 468, 479, 487, 488, 489–​496, 499–​505 cooperation mechanism 43, 44, 47, 51, 58, 79–​81, 339–​354 crime 30, 47, 96, 348, 433–​440 cyber attack 290 dead zones 119, 121 development, economic 70, 75, 78, 82, 100, 116, 198, 264, 422, 423, 434, 479 disaster response 35, 38, 409

dispute settlement 5, 222, 239, 287, 288, 351, 458, 461 Djuanda Declaration 322 due regard 29, 133, 134, 135, 181, 186, 191–​194, 242, 247, 265, 269, 274, 294, 301 Environmental Impact Assessment (eia) 5, 7, 88, 139–​160, 449, 451, 455, 458, 462, 463, 468, 476, 478 environmental law 126–​128, 136, 140, 142, 148–​150, 445, 446 Espoo Convention 139–​157 European Union (EU) 5, 12, 15, 17, 292, 417, 430–​431, 443–​468 excessive maritime claims 190, 215, 216, 237 Exclusive Economic Zone (eez) 11, 25, 93, 94, 104, 130, 134, 179–​192, 202, 203, 227, 238–​294, 296–​306, 312–​314, 325–​326, 419, 423, 426, 475, 484, 490 Fish Stocks Agreement 11, 130, 131–​137, 421, 426, 433, 480, 484 fisheries crime 433–​440 fisheries law 417–​432 fisheries, high seas 11, 12, 15, 17, 39, 42, 65, 88, 130–​131, 181–​195, 203, 207, 211, 213–​261, 269–​278, 283, 286, 288, 292, 295, 296, 308, 312–​315, 321, 326, 346, 391, 411, 419, 420, 422–​439, 451, 456, 458, 464, 465, 468, 575, 476, 478, 480, 481, 484, 486, 488 Fishing, Unreported and Unregulated iuu fishing 12, 129, 135–​136, 290, 406, 409–​413, 418, 421, 424–​427, 430, 433–​437 Food and Agriculture Organization (fao) 11, 138, 144, 419 Ghana/​Côte d’Ivoire Case 99–​116 Hainan Province 44, 61, 63–​67 historic rights 312 historic waters 211, 227, 316

508 Index hydrocarbons 14, 99–​116 hydrographic survey 183, 185–​187, 243, 261, 277–​283 illegal 12, 48, 129, 135–​136, 191, 215, 218, 230–​236, 256, 276, 290, 325, 348, 369, 406, 409–​412, 417–​422, 423–​431, 435–​437 Indonesia 16, 38, 48, 53, 57, 62, 70–​73, 80, 141, 196, 216, 217, 227, 232, 318–​336, 340, 343, 470, 473 intelligence gathering 183–​185, 188, 243, 261, 271, 277, 281, 283, 285, 290 Intergovernmental Conference 443, 445, 454, 463, 464, 469, 472 international maritime law 21, 22, 26–​30 International Maritime Organization (imo) 15, 18, 19, 138, 292, 318, 319, 327, 340, 358 international relations 179 International Seabed Authority (isa) 3, 4, 83, 84, 87–​93, 158, 218, 457, 477, 489, 505 International Tribunal for the Law of the Sea (itlos) 42, 83, 84, 100, 101, 103, 135, 139, 141, 277 law of the sea (los) 3, 11, 16, 18–​24, 38, 42, 56, 75, 78, 83, 84, 87–​95, 100–​103, 119–​135, 139–​141, 185, 200, 206–​237 Lima Declaration 56 Malware 391, 392, 403–​406 marine biodiversity 14, 73, 332, 440, 441–​468 marine biological diversity 8, 443–​463, 469–​489, 501 marine environment 7, 9, 13, 14, 20, 28, 47, 52, 55, 78, 79, 88, 91, 93, 94, 96, 111, 113, 119–​124, 125–​138, 139–​160, 161–​173, 185, 212, 213, 242, 248, 252, 264–​290, 318, 320, 331–​336, 348, 430, 446–​447, 465, 466, 478–​479, 485, 496 marine genetic resources 16, 449, 451, 455–​456, 458, 460, 462, 463, 489, 475, 476, 477, 485–​488, 503, 505 marine pollution 12, 16, 119–​123, 125–​130, 137, 143, 150, 248, 250, 280, 435 marine technology 451, 455, 456, 458, 460, 462, 463, 466, 479, 488, 500–​505 maritime autonomous surface ships 18–​30

maritime delimitation 97–​112, 340 maritime disasters 340, 356–​366, 386, 389 mass rescue operation 356–​390 military 35–​39, 238–​294 minerals 3–​8, 92, 165, 212 mining, deep seabed 3–​8 Mox Plant case 95, 96, 125, 128–​129, 152, 159 navigation, freedom of 179–​205, 206–​ 237 navigation, international 18–​30, 189, 210, 212–​229, 233, 236, 307–​315, 318–​336 ocean acidification 120, 164–​168, 493 ocean fisheries 11–​13 ocean policy 9, 202 ocean temperature 161 overfishing 9–​13, 162, 419–​421, 430, 437 Paracel Islands 40, 44, 63, 66–​69, 73, 77, 81, 83, 197, 202, 203 Particularly Sensitive Sea Area (pssa) 331, 477 plastic pollution 161, 171, 172 policy 9–​17, 237 politics 19, 179, 197, 201, 207 Port State Measures Agreement 12, 417, 434, 439 Preparatory Committee 2016–​2017 443 prior notice 295, 298 Pulp Mills case 144, 152, 157 regional fisheries management 11, 131, 132, 417, 424, 426, 429, 433, 435, 477 regional fisheries management organizations 11, 420, 424, 426, 429, 433, 435, 477 regulations 3–​39, 83–​90, 132, 143, 158, 181, 189, 192, 242, 247, 261, 268, 295, 299, 301, 339, 348, 353, 356–​368, 411–​460 rescue at sea 205, 380–​390 search and rescue 339–​414 semi-​enclosed seas 93–​98 shipping 18–​31 South China Sea 40–​82, 339–​355, 391–​414 sterile liquid fertilizer 119 Straits of Malacca and Singapore 307, 308, 318, 321–​327 straits, international 307–​317

509

Index sustainable development 9, 12, 16, 17, 52, 55, 56, 75, 90, 420, 445, 447, 452, 453, 466, 490

426, 444, 451, 454, 462, 463, 470, 474, 490, 501 unmanned vessels 18

territorial sea 25, 38, 93, 94, 180, 181, 189, 198, 207, 208, 210, 211, 212–​261, 271, 277, 300–​315, 321–​323 tourism 40–​82, 168, 332 treaty negotiations 469

Vietnam 295–​304

United Nations Convention on the Law of the Sea (unclos) 18, 22, 56, 75, 78, 86, 100, 125, 139, 140, 149, 180, 195, 210, 230, 265–​270, 295, 296, 308, 319, 341, 419,

Warships 46, 179–​189, 208–​234, 259–​273, 282, 288, 299, 303, 328, 330 waste stream recovery 119 waste, hog 119 waste, human 119, 121, 123 Whaling in the Antarctic Case 130, 133 whole-​of-​government 391, 393, 397, 398, 400, 403, 405–​407