Stress Testing the Law of the Sea : Dispute Resolution, Disasters and Emerging Challenges [1 ed.] 9789004352926, 9789004352919

Citation preview

Stress Testing the Law of the Sea

Stress Testing the Law of the Sea Dispute Resolution, Disasters & Emerging Challenges

Edited by

Stephen Minas H. Jordan Diamond A Law of the Sea Institute Publication

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Stress Testing the Law of the Sea: Dispute Resolution, Disasters and New Challenges (Conference) (2016 : Dickson Poon School of Law) | Minas, Stephen, editor. | Diamond, H. Jordan, editor. | Transnational Law Institute. | Law of the Sea Institute, sponsoring body. Title: Stress testing the law of the sea : dispute resolution, disasters & emerging challenges / by H.Jordan Diamond, Stephen Minas. Description: Leiden ; Boston : Brill Nijhoff, 2018. | “This book has its genesis in a conference held in London on 30 September and 1 October 2016, on the theme of “Stress Testing the Law of the Sea: Dispute Resolution, Disasters and New Challenges”. The conference was hosted by the Transnational Law Institute (TLI) of King's College London in collaboration with the Law of the Sea Institute at the University of California, Berkeley, School of Law (LOSII).” --ECIP introduction. | Includes bibliographical references and index. Identifiers: LCCN 2018027238 (print) | LCCN 2018027597 (ebook) | ISBN 9789004352926 (E-book) | ISBN 9789004352919 (hardback : alk. paper) Subjects: LCSH: Law of the sea--Congresses. | Arbitration (International law)--Congresses. Classification: LCC KZA1141 (ebook) | LCC KZA1141 .S77 2018 (print) | DDC 341.4/5--dc23 LC record available at https://lccn.loc.gov/2018027238

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-35291-9 (hardcover) isbn 978-90-04-35292-6 (e-book) Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and 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.

“For David Caron, an inspirational mentor, leader, and friend”

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Table of Contents Dedication  v Foreword: Reflections on Forty Years of the Law of the Sea  IX Gudmundur Eiriksson In Memoriam: David D. Caron  Xiv Harry N. Scheiber Acknowledgments  XXVII List of Figures  XXVIII Notes on Contributors  XXIX

Introduction: The Law of the Sea and the Challenges of Transnational Governance  1 Stephen Minas and H. Jordan Diamond

Part 1 Stress Testing unclos Dispute Resolution 1

The Role of the International Tribunal for the Law of the Sea in Global Ocean Governance  11 Vladimir Golitsyn

2

Contested Sovereignty over Land Territory and Maritime Zones  31 Pierre-Emmanuel Dupont

3

Arbitrating Maritime Disputes: Evolving Approaches to Maritime Features and Third Party Interests in unclos Arbitration  55 Robert G. Volterra

4

Navigating Uncharted Procedural Waters in a Rising Sea of Cases at the Permanent Court of Arbitration  95 Judith Levine and Garth L. Schofield

5

itlos at 20: Provisional Measures and the Precautionary Approach  150 Mubarak A. Waseem

6

Certain Controversial Issues in the Development of the International Law of the Sea  170 Keyuan Zou

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The South China Sea Arbitration and the China-Philippines Relations Beyond the Award  190 Vasco Becker-Weinberg

Part 2 The Interface of unclos and Emerging Environmental, Disaster & Energy Challenges 8

Interpreting the Dispute Settlement Limitation on Fisheries after the Chagos Marine Protected Area Arbitration  225 Alexandros X.M. Ntovas

9

Protection Standards for the Marine Environment: Updating Part xii of the Law of the Sea Convention?  254 Maria Gavouneli

10

Weathering the 21st Century: How unclos Contributes to Responses to Climate-Related Disaster Events  267 Anastasia Telesetsky

11

The Sendai Opportunity: Maritime Access and Cooperation for Disaster Relief  287 Stephen Minas

12

Rights and Obligations of States in Undelimited Maritime Areas: The Case of the Eastern Mediterranean Sea  311 Nicholas A. Ioannides Index  339

Foreword: Reflections on Forty Years of the Law of the Sea I have been asked to share some thoughts about the four decades during which I have been involved in the Law of the Sea. I am honoured to be speaking in the presence of Judge Golitsyn, President of the International Tribunal for the Law of the Sea (the “Tribunal”), under whose steady hand I have been working in the Tribunal as a Judge ad hoc in its most recent case, the M/V “Norstar” Case. It is also a great pleasure to be a guest of my good friend and colleague Professor David Caron, with whom I have shared many Law of the Sea experiences, including when he was Co-­Director of the Law of the Sea Institute, another of our hosts and co-sponsors of the Conference, represented here by his successors, Professor Holly Doremus and Jordan Diamond. The Law of the Sea Institute predates by some ten years the forty-year period which I will be reflecting on tonight. The Conference is co-­sponsored by an important Institute at King’s, my Alma Mater, which honoured me this year by bestowing on me the Fellowship of the College, with reference to my work during these forty years. We are thus closing many circles this evening. Quite uniquely, Judge Golitsyn and I share the experience of having served in three branches of the Law of the Sea cosmos: • first, in the executive, in the United Nations Secretariat, • second, in the legislative, representing our governments in negotiations on the Law of the Sea, and • third, in the judiciary, as Judges on the Tribunal. I would add a fourth branch, that of academia, where we have each been sharing our experiences with upcoming generations. We are both as proud of this role as of the other three. I can broadly describe the four decades of my experience with the Law of the Sea as follows: The first decade, of course, saw the elaboration of the United Nations Convention on the Law of the Sea (the “Convention”) at the Third United Nations Conference on the Law of the Sea, which I became involved with straight out of Columbia Law School at the second session of the ­Conference in Caracas in  1974. My involvement continued until the adoption of the Convention in 1982. In the second decade, we addressed the after effects and shortcomings of the Convention as originally adopted, culminating in its entry into force in 1994 and the elaboration of several multilateral and regional fisheries agreements and other instruments implementing the Convention.

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The third decade saw the institutionalization of the bodies established under the Convention, including the International Seabed Authority and the ­Tribunal. Tomorrow (1 October 2016) is the twentieth anniversary of the Law of the Sea Tribunal, which we will be celebrating next week with a symposium at its Seat in Hamburg. The fourth decade was a rather less active period but I will point out in my conclusions a few highlights which set the stage for what I see as a very productive fifth decade. But tonight, I wish to put this history in a more personal, intergenerational framework. What do I mean by this? Four years ago, we commemorated, at United Nations Headquarters in New York, the thirtieth anniversary of the adoption of the Convention. At the session, there was a discussion around what were identified as three generations of those involved in the Law of the Sea. The first generation included those great scholars, lawyers and diplomats who led the negotiations at the Law of the Sea Conference, including as officers of the Conference and as heads of their national delegations. Just today, Professor Ronán Long and I were recalling one of them, our late friend and colleague, Ambassador Mahon Hayes, who led the Irish Delegation. The second generation consisted of those, like Judge Golitsyn and myself, who served in the second row, as it were, behind and under the mentorship of these First Generation giants, and in many cases succeeded them in the roles set up under the Convention. At the thirtieth anniversary celebration, finally, there was reference to a third generation, now active in the Law of the Sea at the United Nations and in other fora. On reflection, however, I wonder if there wasn’t perhaps a m ­ issing generation, between the second and the third, corresponding in time to the less active decade I referred to earlier. In any event, I am placing many of you here tonight in these later generations and I will come back to refer to this group when I conclude in speaking of the future. But what great fortune for me and others like me to begin our professional careers amongst these stalwarts of international law. And what good fortune for the world community that so many able and well-meaning colleagues should gather together around this Law of the Sea project at a critical time— at a time when it was necessary to address the challenges which were quite literally threatening international peace and security, but at the same time opening up opportunities for enhanced welfare and sustainable use of marine resources for the benefit of all mankind. I have often thought about the factors at play which led to what we came to call the spirit of the Law of the Sea. Certainly, there was a history of many

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of our First Generation colleagues having worked together closely in various fora, including in the International Law Commission. This was to continue, by the way, after the Conference itself, in the further Law of the Sea negotiations as well as in the International Law Commission, International Court of Justice, International Seabed Authority and Tribunal. Emblematic of this conviviality was the work of the so-called Informal Group of Juridical Experts, ­commonly referred to as the Evensen Group, conceived and led by Ambassador Jens Evensen, the head of the Norwegian Delegation and later a Judge at the International Court of Justice. The Group included all the colleagues I have referred to as comprising the First Generation. In the group, participants were not addressed as representatives of their countries but by their names. Thus, to mention three examples, it was Ambassador Andersen, Ambassador Calero Rodriguez and Ambassador Castañeda, not the representatives of ­Iceland, ­Brazil and Mexico. But comradery was not a factor sufficient unto itself. There was also a shared fervent desire to make a success of the efforts, to accommodate even the most diverse interests in one consensus instrument. What was it that led to this shared vision, cutting across interest groups, political alliances and regions? One element, in my view, was very personal. Many had in their youth lived through the Second World War and others had suffered under colonial domination. I spoke to many of them about their experiences. Ambassador Evensen, for example, had cut his legal teeth in the prosecution of the collaborators during the Nazi Occupation of Norway. As the colleagues in the First Generation came of age and attained positions of influence, they saw, in the Law of the Sea, an opportunity to revive the spirit of the United Nations which had suffered under the Cold War. This was certainly true of the motivation behind the settlement of disputes regime set out in the Convention. It is not out of order to refer in this connection to Professor Louis Sohn, a member of the United States Delegation and Professor at Harvard Law School. Professor Sohn was an indefatigable champion of the vision of having a comprehensive and compulsory system of dispute resolution, which ran against the prevailing sentiments at the time in the ­international arena. Professor Sohn, indeed, had participated in the San Francisco Conference which established the United Nations. One of the most significant ramifications of these relationships was the decision of the Conference to depart from the then traditional negotiating ­procedures and rather delegate to individual colleagues the responsibility of preparing the texts to guide their work, beginning with the so-called informal single negotiating texts. Even in retrospect, these many years later, it is hard to appreciate fully how bold a measure this was at the time. This was only

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­ ossible because of the bonds of mutual respect and trust which had been p formed between delegates in the negotiating process. Parenthetically, these working methods resulted in very important articles in the Convention having virtually no documented negotiating history in the form we call travaux préparatoires, including articles 74(1), 83(1) and 121(3). Most of the colleagues in this First Generation are no more. Yet, I venture to say that they still inspire us, both substantively and procedurally, to work in a spirit of collegiality. I think of them often and refer to them regularly in my teaching. In fact, in one way, I have institutionalized this. I have been honoured several times with the responsibility of chairing negotiations, on Law of the Sea and other matters. Whenever I ran into problems, I thought to myself, “what would Ambassador Aguilar do now”, referring to Ambassador Andrés Aguilar, the head of the Venezuelan Delegation, who was the masterful Chairman of the Second Committee of the Conference, and with whom I worked so closely during the Conference. He was later to be a Judge at the International Court of Justice. (This would most often result in my sitting back and doing nothing; Ambassador Aguilar’s tactic was to allow things to sort themselves out rather than getting involved in the interstices of individual arguments.) If proof be needed of the higher calling exhibited by the giants whom I have been mentioning, I can add that his Delegation was one of only four to vote against the Convention, because of a provision prepared under his gavel. Of course, all later generations have profited from this Law of the Sea spirit, specifically, in the form of the provisions of the Convention itself. But what about the life outside the Law of the Sea? To a large extent, the negotiations culminating in the establishment of the International Criminal Court were also a product of this spirit, both in terms of the delegates involved and the procedures they adopted. Many of the leading negotiators were among the Second Law of the Sea Generation. But here is some food for thought: what if the same spirit had been applied to yet other fields? A couple of years ago, I was discussing this with another member of this Second Generation, who is, incidentally, a candidate for the post of United Nations Secretary-General. We asked ourselves why the Law of the Sea successes could not be replicated in the climate change negotiations. I am now reaching the end of this walk down Memory Lane. In concluding, coming back to the fourth decade I mentioned at the outset, I wish to refer to four recent developments which, I submit, set the stage for the future work of the Third Generation. • First, the groundwork being completed in the International Seabed Authority in preparation for actual mining activities (and I include

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here the 2011 Advisory Opinion of the Seabed Disputes Chamber of the Tribunal). • Second, the Tribunal’s 2015 Advisory Opinion regarding illegal, unreported and unregulated fishing activities, the first under its competence to give advisory opinions on non-seabed questions (article 138 of its Rules). • Third, the Tribunal’s 2012 Judgment in the Bay of Bengal Case, which I think presages a new and more active phase in its work. • And fourth, the first Compulsory Conciliation under the Convention, initiated in April of this year by Timor-Leste against Australia; to be followed, I hope, with more use of this mechanism where it could be even more useful, in matters relating to fisheries. I have waxed lyrical about the past, but what about the future? Here I can refer to some discussions which arose in the present case before the Tribunal. Even if President Golitsyn were not present tonight, I would be careful not to reveal details of our deliberations, but I can say that the case involves fundamental principles of the Law of the Sea Convention. And it was obvious in that context to compare the issues raised there to perhaps the most fundamental of the fundamental principles, namely the Common Heritage of Mankind. In this respect, the Law of the Sea Convention fell short, even in the form in which it entered into force in 1994. I recall, immediately after the vote adopting the Convention in 1982, going to the Delegates Lounge at the United Nations. There I came across one of the giants I have been referring to, literally in tears, because, after all those years of effort, his Delegation had voted against the Convention because of the deep seabed provisions. So, in closing, if I were to make one appeal to the present and future Law of the Sea generations, it would be to redouble the efforts to make the Common Heritage of Mankind a reality, thus complementing the legacies of the generations which have gone before. Address at the Speakers’ Dinner, The Athenaeum, 30 September 2016 By Gudmundur Eiriksson

In Memoriam: DAVID D. CARON (1952–2018), Scholar and Teacher of Ocean Law Extraordinaire Harry N. Scheiber With the sudden death of Professor David Caron in February 2018, the field of ocean law and policy studies lost one of its most gifted and celebrated leaders. His many contributions to scholarship on oceans issues were only one segment of a large corpus of writings in which he contributed to varied aspects of international and environmental law. In addition to being a prolific and influential writer, David was a prominent actor in the policy arena, achieved eminence as a lawyer and arbitrator (and most recently, as a judge), and was notable for his accomplishments as an academic institution builder and administrator. One may guess, however, that he would most wish that we should recall that he was a gifted and incredibly dedicated university teacher. His academic positions included service as a member of the faculty in the School of Law, University of California, Berkeley, from 1987 to 2013; midway through this period, he was named Maxeiner Distinguished Professor of Law. In our School, he shared with Professor Richard Buxbaum a role as leading light and indispensable mentor to the international law faculty. When he resigned his Berkeley chair to accept the position of Dean of the Dickson Poon School of Law in King’s College, London, he stated in a candid press interview that, given a recent donation of unprecedented magnitude to the Poon School, he regarded the deanship as a unique opportunity to expand the faculty and to build an ambitious program of legal education and research that could place the school in a position of special prominence globally. Happily, David combined a gentle personal manner and a record of respectful relationships with members of the academic community that softened any suggestion of arrogance or overreach in the scope and intensity of this ambition. To his colleagues at Berkeley, D ­ avid’s announced ­approach to his deanship at King’s came as no great surprise: he had taken on every ­responsibility, from his first day on our faculty, with this same sense of high purpose and intense institutional dedication. We benefited in myriad respects from the ways in which he deployed his rare gifts both in the classroom and in the creative organization and productive administration of academic activities. To the great advantage of scholars, jurists, and policy officials in the realm of ocean law and policy, one of the causes to which David gave his efforts

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­ nstintingly was the Law of the Sea Institute (losi), which he and I co-­ u directed from 2002 until 2013, when he took leave for King’s and took emeritus status at Berkeley. In the five years since then, he continued to be loyally involved in losi conferences and publications, including his role in conception and organization of the conference from which the present book has drawn its papers. One of the last entries, sadly, in the lengthy bibliography of David’s distinguished writings will be an important paper on the law of marine protected areas that he coauthored for presentation at losi’s Fiftieth Anniversary conference, held at Berkeley, and that was published in 2018 in the losi volume Ocean Law Debates.1 Within days after his untimely death, tributes to David began to appear on the web and in print publications; and so his remarkable accomplishments in the larger field of international law are being memorialized as the brilliance of his career requires.2 It is, however, especially appropriate that in the present paper we should focus on the scope and importance of his contributions to ocean law and policy discourses, including his role in losi at Berkeley in the last sixteen years.

…

David’s connection to the ocean was formed during his undergraduate years as a cadet in the U.S. Coast Guard Academy, to which he won appointment ­after a childhood and secondary education in New England. Evidence of his bent for leadership and the recognition of his character and intellectual brilliance surfaced quickly in his Academy years: he was named brigade commander of the corps of cadets, and he graduated in 1974 with special honors in physics and political science. In the following four years in the Coast Guard service, reaching rank of Lieutenant, he drew challenging assignments of significant ­responsibility, including a position as navigator on the icebreakerstyle research vessel uscg Polar Star during its storied transit of the Northwest ­Passage. Both in the Arctic area and in a later assignment as the Coast Guard’s assistant chief for marine protection and port security in California, David was also a salvage diver, one of the last cohort of dive officers who wore the old metal-helmeted diving suits supported by an air line from the tending surface 1 David D. Caron and Stephen Minas, “Conservation or Claim? The Motivation for Recent ­Marine Protected Areas,” in Ocean Law Debates: The Fifty Year Legacy and Emerging Issues for the Years Ahead (ed. Harry N. Scheiber, Nilufer Oral, and Moon-Sang Kwon, 2018), 527–549. 2 See the website https://scholarship.law.berkeley.edu/sw_gallery.html for biographical data and a detailed listing of David Caron’s writings.

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vessel—a link to naval history and the heritage of undersea exploration that fascinated our students and that David cherished recalling when pressed by his seminar students to recount this or other “war stories.” Similarly, albeit this time in a major international arena, at the Fridtjof ­Nansen Institute international conference on globalization and the world ocean, held in Oslo in August 2008, David and itlos judge Vladimir Golitsyn were together on the platform to present brief talks at the closing session. David spoke on varied historic “images of the Arctic,” a subject on which he presented in numerous other fora as well; and in his talk he mentioned the pioneering Polar Star transit—prompting Judge Golitsyn to interject that in addition to irritating the Canadians, the ship also was guilty of incursions, en route, into Russian waters. David replied that he happened to have been the ship’s navigator on those occasions, and that he wanted to assure everyone that such incursions were “purely inadvertent.” This brought forth a roar of laughter from the large audience—and Judge Golitsyn, too, enjoyed the exchange, as I recall. The importance of David’s Coast Guard experiences and their meaning for him as a teacher and lawyer were evident in the directions his specialized research would later take. This was manifested especially in several of his important journal articles on marine environmental law, on the prospective impacts of climate change on baselines and the threats to the very survival of small island states, and on legal issues respecting navigation (including transit of straits, and also with regard to research ships and military vessels’ activities in offshore waters of coastal states). David’s student days at the Academy were also memorialized for him in an oversize photograph of the Coast Guard’s three-masted training ship Eagle, on which every cadet served on cruises as crew member or bridge officer. This ship’s portrait, a celebratory gift presented to David by faculty friends on the occasion of his promotion to a tenured professorship, was hung prominently in his office at Berkeley Law; and after moving to London he sent word back to his old faculty colleagues that it had been given a similarly central place on display in his new quarters there. Whatever the satisfactions that he earned in his illustrious career in law, uniquely memorable times for David, I think, were the days during which he could steal time for a private scuba diving expedition, or to enjoy the surf off an island beach, or (on a recent vacation adventure) to delight in even inland waters, as at the helm of a lumbering chartered vessel on European canals in company of the family to which he was so devoted—his wife, Susan, and grown children, Marina and Peter.

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After leaving the Coast Guard, David was awarded a Fulbright study grant that permitted him to broaden his preparation for writing and teaching in these fields; with that scholarship, he completed a M.Sc. degree in 1979 at the University of Wales Center for Marine Law and Policy. Having decided to pursue legal studies more broadly, he was admitted as a J.D. student to our School of Law in the University of California, Berkeley. Here again, his record was one of great distinction: He would graduate in 1983 with Order of the Coif honors, and in his final student year he was editor-in-chief of the Ecology Law Quarterly, one of the first law journals in any country to specialize in the emerging fields of environmental law and policy. Most significantly, however, he earned as a law student at Berkeley the ­attention of Professor Stefan A. Riesenfeld, who engaged him as his research assistant and who would become a mentor to him in the years to follow. ­Inspired and guided by Professors Riesenfeld and Buxbaum, and by several senior scholars outside Berkeley (most notably the distinguished lawyer and diplomat Bernard Oxman, who was a visiting professor during David’s final student year), he published articles on the problems of the prospective seabed mining regime under unclos and on transnational marine pollution from offshore oil activities.3 On re-reading today those papers from his student years, one is astonished by the extent to which David was even then exhibiting a leading characteristic of his later writings, viz., a remarkable prescience regarding the potential range of legal implications that could arise from newly applied technologies and from emerging environmental challenges. An historic event in international discourse on the status and future of ­u nclos was a major international conference of the Law of the Sea Institute, held in San Francisco in October 1984. More than seventy presenters, including many of the most eminent scholars in international law and several of the most prominent participants in the lengthy negotiations of unclos, discussed virtually the entire range of substantive legal issues—including the seabed regime as defined in the 1982 unclos (which became the focus of the Reagan Administration’s refusal to sign the Convention), fisheries management and conservation principles, criteria and processes for marine environmental protection, navigation of military and civilian vessels, and, withal, the overarching question of how unclos would affect the traditional process of the f­ ormation 3 “Municipal Legislation for Exploitation of the Deep Seabed,” Ocean Development and International Law (1980); “Deep Seabed Mining: A Comparative Study of Municipal Legislation by the United States of America and the Federal Republic of Germany,” Marine Policy (1981); “Liability for Transnational Pollution Arising from Offshore Oil Development,” Ecology Law Quarterly (1982).

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of international law.4 Professor Riesenfeld was co-organizer of the conference, in the run-up to which David Caron was his research assistant and in that capacity deeply involved in the identification of topics and speakers. David’s involvement in the subsequent global discourse, down to our own day, as to the rights and obligations of States as set down in unclos and implementing instruments, thus began “at the creation,” as it were. He continued over the years to offer learned commentaries on the Convention, expressing his frustration regarding the negative U.S. posture toward ratification, as Congress, paralyzed by the decision making process in committees, continually declined to act favorably despite a continuous rise in support for ratification by the 1990s from industry, the military, and scholars. With Professor Oxman, whose visiting professorship at Berkeley coincided with the San Francisco conference preparations, and the international lawyer Charles Buderi, David coedited a small book of essays evaluating the unclos issues, the first of his publications in book form, again a product of his student years.5 After receiving his law degree at Berkeley, David served the Iran-US Claims Tribunal in The Hague from 1983 to 1986 as legal assistant to the American judges Charles Brower and Richard Mosk. His immersion, during his Tribunal clerkship, in the processes of international dispute settlement was of great influence on his subsequent career both as scholar and as lawyer. During these years in The Hague, he also advanced his formal credentialing as a scholar in international law, receiving the Diploma of The Hague Academy and initiating a research project that would culminate in his earning the Doctorate of Law from the University of Leiden in 1990. He laid the academic groundwork in this period for the recognition he would in time achieve as a leading expert on procedure in international arbitration—and, of course, it would serve him for his later-career role in a range of major international arbitrations on boundary disputes, environmental issues, commercial treaty obligations, and human rights challenges. After completing his service with the Tribunal judges in 1986, David returned to California, taking up a position as law associate in the prestigious San ­Francisco law firm Pillsbury Madison & Sutro, with offices across the Bay from our law school in Berkeley. After a year in the firm, the wheel of his ­career 4 The Developing Order of the Oceans: Proceedings, Law of the Sea Institute, Eighteenth Annual Conference, … October 24–27, 1984, San Francisco (ed. Robert B. Kreuger and Stefan A. ­Riesenfeld, 1985). On Riesenfeld’s role in organizing the conference, see John Briscoe, “A Remembrance of Stefan A. Riesenfeld,” in Science, Technology, and New Challenges to Ocean Law (ed. Harry N. Scheiber, James Kraska, and Moon-Sang Kwon, 2015), 464–465. 5 Bernard H. Oxman, David D. Caron and Charles Buderi, Law of the Sea: U.S. Policy Dilemma (1983).

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took a major turn: his alma mater brought him home, it may be said, as a tenure-track assistant professor in 1987. Settling in at the School, and provided with an elegant office looking out on a section of the busy campus but also the quiet of the magnificent Berkeley hills, David now was established in a coveted institutional base for what became a truly great career in academia. In a relatively short time, he won tenure and then was named to a chair as Maxeiner Distinguished Professor. While on the Berkeley law faculty, he ­enjoyed the ­colleagueship and continued mentoring of his former teachers; and he won the enduring respect and admiration of his own cohort of younger c­ olleagues— not only those in the Law School but professors in many other disciplines on the ­Berkeley campus faculty, in relationships impelled by David’s exceptional literacy in the physical sciences and his deep interest in political science, history, and the new interdisciplinary “law and society” field.6 I was privileged to have an office next door to David’s, and from his earliest days on the faculty we spoke to one another almost daily, our more substantive exchanges being reflected in the acknowledgements in nearly all our ­respective ocean-law related publications. He always had interesting insights, humorous angles, or compellingly lucid comments on matters of law and policy, classroom teaching, and campus issues. Family news was always in the mix—notably in the form of boastful (though of course wholly accurate) reports on the accomplishments of our children! Only a few months after his appointment to the Berkeley faculty, I was engaged in organizing an international symposium on the subject of ocean resources, and in that context David mentioned that he was deeply concerned about the implications for international law of the U.S. policy of imposing sanctions on distant-water fishing nations that were engaged in damaging environmental practices. I urged him to present a paper on the subject to the symposium, which was scheduled to be held in only about six weeks’ time. David would later confess that he was shocked by the idea of doing a paper on such a short deadline, but whatever the depth of his reservations at the time, David agreed to the assignment. In the weeks that followed, I was astounded by the way in which he was exploiting the already rich “on-line” research resources of the worldwide web, a medium regarding use of which most of our older generation colleagues and I myself were then almost completely ignorant. The brilliant paper that 6 Law and Society studies had been institutionalized at the Law School by the establishment in 1978 of its doctoral program in Jurisprudence and Social Policy, which was first of its kind in any American law school, and in which David would play a role as adviser or as dissertation supervisor for several doctoral students with international law interests.

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­David produced in such short order was presented to great acclaim at the conference, and it was then published in 1989, along with the other conference ­papers, in a symposium issue of the Ecology Law Quarterly.7 At that time, the UN Convention on the Law of the Sea, signed in 1982, had not yet gone into force, as the United States and the other most advanced industrial nations were withholding ratification because of the notorious controversy over the seabed mining regime. However, the Convention’s vitally important provision authorizing the creation by coastal nations of Exclusive Economic Zones had already produced an historic change in the old regime of freedom of the seas, with more than a hundred nations having already acted to proclaim 200nmEEZ jurisdiction. Yet there was no settled view as to whether the Convention’s language warranted a coastal nation’s entire denial of access by foreign states’ flagged fishing vessels. The United States Congress had passed legislation under which the Executive would be potentially required to ban fishing in its eez by the fleets of nations that violated the restrictions on commercial whaling imposed by the International Whaling Commission—a declaration, in effect, of authority in eez waters that ostensibly went beyond the specific terms of unclos regarding coastal state authority. David’s article provided a close textual analysis of the relevant international instruments and the existing literature, analyzed the U.S. legislation and executive process, and commented on a decision in 1986 of the U.S. Supreme Court. In addition, he presented empirical data that illustrated the limits of potential practical impact of the fishing sanctions policy. Beyond that, he also broadened his inquiry to examine what he termed “the growing instrumental importance of sanctions,” especially in regard to the conditions under which such actions, whether with regard to fishing access, trade terms, or other relations among states, might be justified as a legitimate exercise of state power. Reflecting on the specific U.S. policy in effect, he concluded that it was not prohibited by the explicit language of ­u nclos—yet, he asserted, this exercise of the power posed a high “strategic risk” to the achievement of overarching American policy objectives in international law and diplomacy. Whatever the short-term payoff for the policy, he wrote, it was a p ­ recedent that other nations could rely upon in the same or other ways that would confuse and disrupt the process by which a consensus could be achieved as to the terms of authority in the eez under unclos. In what would become a hallmark of David’s later writings, he thus moved the issue of institutional stability in international relations to front and center in his analysis. In conclusion, he deplored the fishing sanctions because they 7 “International Sanctions, Ocean Management, and the Law of the Sea: A Study of Denial of Access to Fisheries,” Ecology Law Quarterly, 16 (1989), 311–354.

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“increase[d] the complexity of the legal order,” in particular as to the terms of authority in the eez—but more broadly, he contended, they were undesirable as lending legitimacy to a “possessory view” of ocean resources and spaces that could undermine the underlying “cooperation and friendly relations” among states, essential to achievement of consensus on eez powers. The importance of such consensus, he averred, transcended any short-term advantage. One ­discerns, then, in this first major research effort by David, the laying of a foundation stone for the intellectual framework that would provide the basic thematic thrust of argument—a prioritizing of institutional stability and efficacy—in so much of his work in the years to follow.

…

His article on sanctions established David immediately as a prominent voice in ongoing debates over the U.S. sanctions policy, and it had a durable influence in the extended debates and diplomacy regarding the interpretations of the more comprehensive unclos regime that persisted well into the 1990s. Only a year after his sanctions article appeared, David published in the elq a pathbreaking study: “When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level.”8 This piece was one of the very first scholarly analyses to appear in the literature of international law to address the rising-sea level question—an issue now recognized, of course, as one of the most urgent challenges posed for islands and coastal areas by climate change. It is today recognized as a classic, and its analysis is as relevant now as it was when it first appeared.9 Together with his later contributions to the discourse on rising challenges from climate change, his 1990 study reminds us of David’s impressive capacity for anticipating new challenges to established ocean regimes and their implications for inherited legal norms. Equally, it illustrated his insightfulness in suggesting the innovations in ocean law required to meet those challenges.10 8 9

10

Ecology Law Quarterly, 17 (1990), 621–653. See, e.g., Clive Schofield, “Shifting Limits? Sea Level Rise and Options to Secure Maritime Jurisdictional Claims,” Carbon and Climate Law Review, 4 (2009), 405–416. David Caron returned to this theme, with new insights, in a paper originally presented at a memorial conference honoring the career of our close mutual friend, Jon Van Dyke: “Time and the Public Trust Doctrine: Law’s Knowledge of Climate Change,” University of Hawai`i Law Review, 35 (2013), 441–458. Not long after the publication of the sea-level paper, David was appointed to a position of leadership on the Berkeley campus in an effort to plan how the university might best organize and promote in an interdisciplinary mode new research and teaching on climate

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The passage of time, and a personal research agenda that seemed everbroadening in scope—with arbitration, in both the commercial law and public law areas, becoming increasingly central to his work as scholar and as practitioner—did not push the climate change issue out and away from the core of David’s engagement with major research issues. In fact, in two papers published in losi books, he extended and modified his conception of how the law should adapt to sea level rise, advancing the proposal that the boundaries of offshore zones should be fixed, so that the allocations of rights and responsibilities for each zone (as defined in the 1982 UN Law of the Sea Convention) would remain in force even when future change in geological realities impacted the physical boundaries of islands and other coastal areas. With the subtitle, “A Proposal to Avoid Conflict,” the first of these papers appeared in a 2009 losi book on maritime boundaries disputes and settlements.11 Four years later, David wrapped the same proposal into an insightful analysis of how the legal order would need to cope with intersecting effects of climate change and the potential problems that must be anticipated from varied human efforts at mitigation.12 The present volume, with its excellent papers addressing climate change impacts in their manifold dimensions, bespeaks the durability of David’s commitment to the subject. This book is also a testament more particularly to the active role that he played in designing the conceptual structure of the conference in London at which the papers were originally presented. It is evidence, too, of the continuing connection that David maintained after 2013 with the Law of the Sea Institute, in terms of not only inspiring the direction and content of the larger losi discourse but also in arranging for the kind of material support that sustains the Institute’s vitality as a forum for new research. This continuity of David’s personal commitment has been an invaluable asset to the present losi co-directors, Holly Doremus and H. Jordan Diamond, in the same way as it was to myself as co-director with David during 2002–13 and in ensuing years, when I continued as solo director until my retirement a year ago.

11 12

change—one of the first such academic initiatives in any leading research university. (Our good colleague David Freestone has challenged my recollection, saying it was at best only the second one!) “Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict,” in Maritime Boundaries Disputes: Settlement Processes, and the Law of the Sea (ed. Seoung-Yong Hong and Jon M. Van Dyke, 2009), 1–18. “Climate Change and the Oceans,” in Regions, Institutions, and Law of the Sea: Studies in Ocean Governance (ed. Harry N. Scheiber and Jin-Hyun Paik, 2013), 515–538.

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Other major academic and professional legal activities, meaning commitment to a busy schedule that often required much international travel, ­occupied David from almost the beginning of his time on the Berkeley faculty. More specifically, when the losi headquarters was moved to Berkeley, reorganized (as will be mentioned below) as a School of Law unit, David had already achieved for himself a prominent place in the international legal arena: He served during 1994–1996 as counsel in proceedings before the Marshall Islands Nuclear Claims Tribunal, and then from 1996 to 2003 on the Precedent Panel of the UN Compensation Commission in Geneva, charged with addressing the myriad claims arising from damages incurred during the 1990 Gulf War. He had also begun in 1993 a long period of important service to the government as a member of the U.S. Secretary of State’s Advisory Committee on Public International Law—an appointment of special personal significance to David since his revered mentor Professor Riesenfeld had served on that committee with great distinction for many years. Similarly, an award of great sentimental importance to David, apart from the professional recognition it conveyed, was his winning of the Stefan A. Riesenfeld Award of the University of California “for outstanding achievement and contributions to the field of international law.” David’s involvements meanwhile multiplied, while also increasing steadily in their visibility, in the professional organizations of both American and international arbitrators, in the American Society of International Law (of which he would be elected as president for 2010–2012), in the American Law Institute, and in the programs of The Hague Academy of International Law. A culminating event of his career, an especially meaningful “bookend” chapter, as it were, would come in 2015 when the United States Government appointed him as a judge on the Iran-US Claims Tribunal, the institution in which his professional career as lawyer had begun three decades earlier. He also was assigned then to the eminent position of ad hoc judge of the International Court of Justice. Despite the pressures of these proliferating commitments, David was maintaining his full program of teaching and administrative obligations at ­Berkeley at the time he and I took up direction of the Law of the Sea Institute.13 We began our work in 2002, in consultation with the eminent scholars and itlos members Judges Tullio Treves and Choon-ho Park, and with Professors ­Richard ­Buxbaum of Berkeley, William T. Burke of the University of Washington, and Bernard Oxman of the University of Miami—and especially with the late Jon Van Dyke of the University of Hawaii with regard to the specifics of losi 13

The reorganization and losi and its establishment of a new base at Berkeley Law in 2002, are discussed in Harry N. Scheiber, “The Law of the Sea Institute: A New Forum for Debate of Ocean Law,” in Ocean Law Debates, 89–93.

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program designs and conference organization. With Judge Park as intermediary and sponsor, aided in liaison by Seokwoo Lee, then a young professor at Inha University, several of our early conference and publication efforts were ­enriched significantly by the coordinated support of Inha University and since then by collaboration with the Korea Institute for Ocean Science and Technology (kiost). Judges Treves, Park, and Jin-Hyun Paik were indispensable for their wise counsel and their presentations at our meetings. At the School, we benefitted from the office facility and operating support provided by our Berkeley Law dean’s office, and also from other sources in the University of California, especially the California Sea Grant Program. Collaborations were negotiated during 2003–2010 with other institutions, among them the University of Washington; the Harte Institute of Texas A&M University (a research unit headed by one of our Berkeley J.S.D. graduates, Richard McLaughlin); and the Environmental Law Institute (whose ocean and coastal program was then headed by another of our graduates, Dr. Kathryn Mengerink, and in which H. Jordan Diamond began her legal career); the Coast Guard Academy (where one of our ll.m. graduates, Capt. Glenn Sulmasy, a prolific scholar, was a department head); and the Nansen Institute in Norway (where Willy Østreng and, later, Davor Vidas maintained close ties with our Institute). The 2010 losi conference was held at the facility in Hamburg of the International Tribunal for the Law of the Sea, with the proceedings open to subscribers from the public. The efforts involved in forging these and other organizational relationships, the familiar never-slackening pace of fund-raising that the realities of academic life impose, and the burdens that academic editing require, were responsibilities that David and I shared. Our agreed design for the Institute, departing from the previous policy when losi was headquartered at the University of Hawaii, was to sponsor mainly small conferences on an invitational basis, and to publish the papers in book form after full vetting and editing. We were fortunate that the Brill/Nijhoff house committed to us for publication of vetted and edited volumes as they became ready. The present book is the latest of some dozen losi publications with Brill/Nijhoff, an invaluable partner in the losi enterprise. Several of the books in the series were coedited by colleagues in other institutions, including Judge Paik of itlos and Professors Moon-San Kwon of kiost, Nilüfer Oral of Bilgi Istanbul University, Clive Schofield of Wollongong University (Australia), James Kraska of the U.S. Naval War College, Seokwoo Lee of Inha University, and Jon Van Dyke and Sherry Broder of the University of Hawaii.

…

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The foregoing discussion of the content and organizational history of losi at Berkeley provides, I hope, a general picture of the milieu and the c­ hallenges in which the work went forward during the period when David was co-­ director. One special element in David’s part of that record justifies, however, being considered his most outstanding personal accomplishment while codirector—again, an evidence of his exceptional gift of insightful prescience: It was his recognition that the course of human events was altered fundamentally with the advent of the nuclear age in 1945, but that its implications for the oceans, as of seventy years later, had been studied only in highly fragmented ways, with many gaps. David believed it was a matter of signal urgency that the ramifications of the nuclear age should be analyzed as an interrelated set of technological and environmental phenomena that were already having—and in future would have—far-reaching impacts on the oceans and their role in global climate. And so, in 2004 we convened in Berkeley a small losi invitational workshop of ocean-law experts from several countries, to advise on David’s preliminary agenda. Incorporating their critiques, and after further consultation with a few scientists and engineers, the agenda was refined to include the respective impacts of nuclear testing, the dumping of wastes into the ocean and burial of waste in the seabed floor, the transport of nuclear materials at sea, the deployment of military vessels as mobile bases for nuclear weapons, and seaborne carriage or uses of nuclear weapons at sea by terrorists or by rogue nations. Special conditions in the polar regions and in the Marshall Islands were also to be addressed by expert commentators. This agenda became the program of our major international losi invitational conference held at Berkeley in February 2006. Not least important of the conference panels was one devoted to the topic of environmental dangers associated with nuclear power stations and waste facilities located in coastal zone areas, the tragic relevance of which would become evident five years later, when the Fukushima disaster struck in 2011. Publication of the conference papers, after editing and commissioning of two additional papers, was achieved with the appearance of the book Oceans in the Nuclear Age: Legacies and Risks (published by Brill/Nijhoff in 2010), coedited by David and myself. Brill brought out an expanded edition in paperback format in 2014, and the book remains one of the brightest ornaments of the losi program’s record.

…

After having reviewed here the record of David’s spectacular career, there remains the need to take notice, however briefly, of the graciousness with which

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he left his mark on institutions and in relationships with colleagues in so many profoundly personal ways. In the words of former Berkeley Law Dean Christopher Edley, who relied on David’s sage counsel in the administrative realm, David was not only a “superstar” in the profession but also a man always “forthright, insightful, and painstakingly fair.” Kathryn Mengerink of the Waitt Institute has written of David as a great “oceans rock star, … but more importantly, as one of the most beautiful souls out there.” The encomium posted on the U ­ S-Iran Claims Tribunal website at the time of David’s death stated that he will be remembered for “his exceptional professional skills and impressive experience as a scholar …, but above all [for] his persuasive human qualities giving evidence of his deeply-rooted moral qualities.” These appraisals encapsulate the expressions of admiration and sorrowful remembrance that have come forth from many of David’s hundreds of former students and from his colleagues in the large constellation of institutions that he served. A close friendship with David, along with our joint projects and shared responsibilities on the Law School faculty and in losi, formed a treasured part of my own career as a research scholar and teacher in ocean law and policy. On one occasion, in the course of delivering an elegant banquet address, David ­referred generously to our having “mentored one another,” despite the difference in seniority and despite our having come to the history and the law of ocean ordering from different but eventually intersecting paths. For me, this mentoring exchange produced enduring intellectual benefit, but it also brings to mind today the memory of David’s capacity for loyalty and of his love of lively, though always respectful, intellectual engagement. For many others, in the many legal, juridical, and academic organizations in which he served—and in which he so often took a leadership role—one can be certain that there are similar memories of how he enriched the lives of individuals and exemplified the worthiest values of those institutions. One can also say with a certainty that David would have taken great pleasure in the publication of the present volume, representing, at it does, a merger of his deep interests in science, environmental values, rule of law ideals, and, more comprehensively, the human condition as affected by legal ordering of the oceans. He will be sorely missed by the many colleagues with whom he was associated in the several worlds of public service and of law, both academic and practical, in which he made his indelible mark. But missed by none, outside his beautiful family, more so than by the community of scholars, jurists, and policy officials who shared his devotion to the study and advancement of ocean law and policy—always, as David advocated, in the context of the quest for a global regime of rule of law.

Acknowledgments This book has its genesis in a conference held in London on 30 September and 1 October 2016, on the theme of “Stress Testing the Law of the Sea: Dispute Resolution, Disasters and New Challenges”. The conference was hosted by the Transnational Law Institute (tli) of King’s College London in collaboration with the Law of the Sea Institute at the University of California, Berkeley, School of Law (losi). We gratefully acknowledge additional sponsorship from The Honorable G. William and Ariadna Miller Institute for Global Challenges and the Law, Berkeley Law. We acknowledge with gratitude and sorrow Professor David D. Caronan inspirational scholar, leader and mentor who has left the most extraordinary legacy. As Dean and as Professor of International Law at the Dickson Poon School of Law of King’s College London, David was instrumental in bringing together this collaboration of King’s and Berkeley and focusing it on essential issues in the law of the sea. Professor Peer Zumbansen, Director of the tli at King’s, also offered wonderful support in hosting the conference at the tli and also contributed the framing concept of “stress testing”. Professor Holly Doremus, Professor of Law and Co-Director of the losi, was key to helping envision both the event and this resulting volume. Helen Bhandari, as Coordinator of the tli, played a vital role in the smooth organization of the conference. Bo Peterson from Berkeley Law took excellent notes during the conference which were very helpful in developing the subsequent book proposal. We thank all conference participants for their thought-provoking contributions to the discussion: Dr. Danae Azaria, Dr. Emily Barritt, Professor Vasco Becker-Weinberg, Charles Buderi, the late Professor David D. Caron, Pierre-­Emmanuel Dupont, Professor Erik Franckx, Professor Maria Gavouneli, ­Professor Kristina Gjerde, Judge Vladimir Golitsyn, Bill Hayton, Dr. Nicholas Ioannides, Frederick Kenney, Judith Levine, Professor Ronán Long, Belinda McRae, Penelope Nevill, Dr. Alexandros Ntovas, Professor Nilüfer Oral, Dr. Kate Parlett, Niccolo Ridi, Mariamalia Rodríguez Chaves, Andrew Shearer, Dr. Nima Tabari, Professor Anastasia Telesetsky, Professor Guglielmo Verdirame, Professor Robert Volterra, Dr. Paul von Muhlendahl, Mubarak Waseem, Dr. Philippa Webb, Professor Sam Wordsworth QC and Dr. Keyuan Zou. We also gratefully acknowledge John Bennett, Johanna Lee and Marie Sheldon of Brill for all their assistance in guiding the book to completion. Finally, we are above all grateful to the authors who have contributed to this book their insights into the complexities of practicing and theorizing the law of the sea today and the possibilities for further realizing the promise of unclos in the times ahead.

Figures 3.1 3.2 3.3 3.4

3.5

3.6 3.7 3.8 3.9 12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9

Territorial sovereignty and scope of the dispute (Eritrea and Yemen), pca Case Number 1996–04, Chart 1. 60 Territorial sovereignty and scope of the dispute (Eritrea and Yemen), pca Case Number 1996–04, Chart 4. 69 Territorial sovereignty and scope of the dispute (Eritrea and Yemen), pca Case Number 1996–04, Chart 3. 72 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, riaa Volume xxvii pp. 147–251, Award, 11 April 2006, Map vii. 73 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, riaa Volume xxvii pp. 147–251, Award, 11 April 2006, Map vi. 74 The South China sea arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 9. 79 The South China sea arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 77. 81 The South China sea arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 161. 85 The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 171. 86 Maritime boundary delimitation agreements and Cyprus’s maritime claims in the Eastern Mediterranean Sea 333 Turkey’s alleged continental shelf maritime boundary with Egypt 333 The disputed maritime area between Israel and Lebanon 334 The disputed maritime area between Israel and Lebanon 334 Israeli concessions stop short of the disputed area 335 Blocks abutting the disputed area 336 Illustration of the proposal submitted by the US special coordinator for regional affairs in 2012 336 Delimitation lines proposed by the parties during negotiations 337 Lebanon offshore blocks 337

Notes on Contributors Professor Vasco Becker-Weinberg Dr. Jur. (Hamburg), LL.M. (Lisbon), lectures at the Faculty of Law of the ­Universidade nova de Lisboa on the law of the sea and ocean governance subjects, and is a qualified lawyer at the P ­ ortuguese Bar Association. He is the co-­ coordinator of the LL.M. program at nova on “The Law of the Sea and the Sea-Economy” and a researcher at Centro de Investigação e Desenvolvimento sobre Direito e Sociedade (cedis), where he is currently coordinating multidisciplinary research projects. He was previously legal advisor to the Portuguese Secretary of State of the Sea and a full-time scholar at the International Max Planck Research School for Maritime Affairs at the University of Hamburg. He has also been on several delegations to international fora and often advises on law of the sea matters. He has also been involved in the drafting of policies and legislation on many ocean governance subjects. H. Jordan Diamond is the Co-Director of the Law of the Sea Institute (losi) and Executive Director of the Center for Law, Energy & the Environment (clee) at the University of California, Berkeley School of Law. losi is an internationally recognized forum that facilitates in-depth, expert research and commentary on critical marine issues. clee develops pragmatic policy solutions to environmental and energy challenges in California and beyond. In both capacities, Jordan’s work focuses on ensuring laws and policies are based on the best information available, developed through inclusive and transparent processes, and implemented through adaptive and accountable systems. Previously, Jordan co-directed the Ocean Program at the Environmental Law Institute. Jordan holds a J.D. from UC Berkeley and a B.A. in earth and environmental sciences from Wesleyan University. In 2013, Jordan received the American Bar Association Section of Environment, Energy, and Resources’ Distinguished Environmental Advocates: The Next Generation award. Pierre-Emmanuel Dupont is Director of the Public International Law Advisory Group. He is a lawyer and a consultant in public international law, international investment law and dispute resolution. He has advised Asian, European, Middle Eastern, African and Latin American governments, as well as public and private entities and corporations, on public international law matters. He is a Visiting Fellow at the International Maritime Law Institute (Malta).

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Professor Gudmundur Eiriksson is Professor and Executive Director, Centre for International Legal Studies, Jindal Global Law School and Advisor, International Office and Global Initiatives, O.P. Jindal Global University. He previously served with the Ministry for Foreign Affairs of Iceland and served as Assistant Legal Adviser, Legal Adviser and Ambassador of Iceland in Ottawa (2003–05), Pretoria (2008–09) and New Delhi (2009–14). He was a member of the United Nations International Law  Commission (1987–96) and a Judge at the International Tribunal for the Law of the Sea (1996–2002). He was a member of Icelandic delegations in numerous international forums, including the Council of the North Atlantic Salmon Conservation Organization where he served as President from 1984 to 1988. Professor Eiriksson served with the United Nations in New York from 1974 to 1977. He holds an A.B. and a B.S. (Civil Engineering) from Rutgers, an LL.B. (Hon.) from King’s College, London and an LL.M. from Columbia Law School. He is a Fellow of King’s College, London. Professor Maria Gavouneli LL.B. (Honours) (Athens); LL.M. (Cantab); Ph.D. (Cantab) (Paul Guggenheim Prize); Assistant Professor of International Law, Faculty of Law, University of Athens; Associate Research Fellow, Institute of Advanced Legal Studies, University of London; visiting professor and lecturer in several universities and research institutions. Member of several academic organisations, including the British Institute of International & Comparative Law (visiting researcher in 2000); the American Society of International Law (co-chair of the Law of the Sea Interest Group—losig, 2012–2015); the European Society of International Law (co-convenor of the Interest Group on the Law of the Sea—­l awsea, 2014–2016); the Hellenic Society of International Law & International Relations (Secretary-General); the Hellenic Arbitration Association; the ila Committee  on international law and sea-level rise (2013-); having served in the ­Committee on the legal principles relating to climate change, member and coauthor of the 2014 Washington Declaration on the legal principles relating to climate change (2010–2014). Judge Vladimir Golitsyn was President of the International Tribunal for the Law of the Sea from 2014 to 2017. Prior to that, he was for three preceding years President of the Seabed Disputes Chamber of the Tribunal. He has been active in the field of International Law for almost four decades. At the Government level, he has served as the Head of the Division of Public International Law in the Russian Ministry for Foreign Affairs of the former ussr and as head or member of delegations

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at various negotiations on fishery, navigation and maritime boundary matters. At the United Nations, he worked for 25 years in the Office of the Legal Counsel and as Director of the Division for Ocean Affairs. Judge Golitsyn is currently Vice-President of the Russian Association of Maritime Law and Professor of international law at Moscow State University, and teaches at the Rhodes Summer Academy of Oceans Law and Policy and the Summer Academy of the International Foundation for the Law of the Sea. Nicholas A. Ioannides is a Nippon Fellow at the International Tribunal for the Law of the Sea. He completed his PhD in Public International Law at the University of Bristol in May 2017. His thesis entitled “The Eastern Mediterranean States’ Approach to the Law of the Sea: Tensions and Trends’ focused on the application of the law of the sea rules in the Eastern Mediterranean Sea in the light of hydrocarbon discoveries in the region. He received his LL.B. from Aristotle University of Thessaloniki (Greece) in 2010 and earned an LL.M. in Public International Law from the University of Bristol in 2012, while he was called to the bar in Cyprus in 2011. He is a member of the European Society of International Law; the Hellenic Society of International Law and International Relations; the ­International Law Association (Greek and Cypriot Branches); the Cyprus Bar Association and the Famagusta Bar Association. Judith Levine is Senior Legal Counsel at the Permanent Court of Arbitration (PCA). She was Registrar in the South China Sea arbitration, the Atlanto-Scandian herring arbitration and the Abyei arbitration and has assisted tribunals in some of the world’s largest investor-state and commercial cases, including Yukos v. Russia. Judith is also a visiting lecturer at King’s College London in the global climate law program and in 2018 will be a visiting fellow at Sydney University C ­ entre for International Law. Prior to joining the pca, Judith practiced arbitration in New York for five years at White & Case llp. In 2002–2003, Judith clerked for three judges at the International Court of Justice. In Australia she was an adviser to the Attorney-General, an associate at the High Court of Australia, and lecturer in contract law at the University of New South Wales. Judith has a B.A./LL.B. (unsw, University Medal) and an LL.M. (nyu, Fulbright/Hauser Global Scholar). Stephen Minas B.A.(Hons), LL.B.(Hons) (Melb), M.Sc. (lse), gdlp is Assistant Professor of Law at the School of Transnational Law, Peking University. He is a Senior

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­Research Fellow of the Transnational Law Institute and Adjunct Fellow in Climate Law and Governance, both at King’s College London, and a member of the unfccc Technology Executive Committee’s task forces on climate technology financing and mitigation, the iucn World Commission on Environmental Law and the Young Academics Network of the Foundation for ­European Progressive Studies. He has consulted to or collaborated with a variety of international organizations and think-tanks. Previously, Stephen worked as a v­ isiting lecturer at King’s College London (teaching in areas including finance law, ­climate change law and transnational law) and an Adviser to the Premier of the ­Australian State of Victoria. Dr. Alexandros X.M. Ntovas joined Queen Mary’s Centre for Commercial Law Studies (ccls) in January 2016 as a Lecturer in Shipping Law. Prior to that, he held a law l­ectureship in international law at the University of Southampton Law School, where he was also a Governing Board Member of the Institute of Maritime Law. He has studied under a number of prestigious scholarships for law and political sciences in Greece, England, Belgium, France and the Netherlands. He has p ­ racticed public and administrative law, and acted on numerous occasions as a policy advisor to governments, including the European Union, the public sector and the shipping industry. His expertise within ccls lies in admiralty. He also leads the LL.M. in International Shipping Law (Piraeus, Greece), and is an active member of the qmul’s Insurance Law Institute, regarding shipping matters, and Energy and Natural Resources Law Institute, in relation to oceanic policy and law of the sea affairs. Harry N. Scheiber Harry N. Scheiber is Chancellor’s Professor and Stefan Riesenfeld Professor of Law and History, Emeritus, at the School of Law, University of California, Berkeley. He brought the Law of the Sea Institute to UC Berkeley and codirected it with David Caron from 2002–2013 and then directed it from ­2013–2016. He is a Fellow of the American Academy of Arts and Sciences, honorary life fellow and former president of the American Society for Legal History, and twice a Guggenheim Fellow. He has published over 100 articles and is author or editor of twenty-eight books in the fields of ocean law, marine fisheries management, history of American constitutional law, and law and economic policy. Garth Schofield is Senior Legal Counsel at the Permanent Court of Arbitration (pca). At the pca, Mr. Schofield works closely with arbitral tribunals constituted to resolve investment disputes under bilateral investment treaties, contract claims

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i­ nvolving State entities and international organizations, and sovereign disputes under the UN Convention on the Law of the Sea and other international treaties. In addition to his work with tribunals in pca-administered arbitrations, Mr. Schofield assists the pca Secretary-General in the designation of appointing authorities and the appointment of arbitrators under the uncitral Arbitration Rules. Mr. Schofield is a graduate of Yale Law School and The Fletcher School of Law and Diplomacy. Prior to joining the pca, Mr. Schofield’s work included litigation on international law matters in U.S. courts and rule of law initiatives for the United Nations Mission in Sudan. He is admitted to practice in the state of New York. Professor Anastasia Telesetsky is a Professor at the University of Idaho where she teaches in the natural resource and environmental law program. In 2016, she was an Ian Axford Public Policy Fellow sponsored by the Ministry for Primary Industries in New Zealand to write an independent research report on fisheries discards. Her scholarship on marine issues focuses on Asia-Pacific Ocean issues and she is a participant in the Asia-Pacific Ocean Law Institutions Alliance and an editorial board member of the Asia Pacific Journal of Ocean Law and Policy. She is a co-editor of International Law of Disaster Relief (2016) and a co-author of Ecological Restoration and Law (2017). Professor Robert Volterra has been recognised for many years in the global legal directories as one of the world’s top public international law practitioners. He is qualified as a barrister in Canada and as a solicitor-advocate in England and Wales. He is a principal of Volterra Fietta, a Visiting Professor of International Law at University College (ucl), University of London, and a Visiting Senior Lecturer at King’s College London. Robert advises and represents governments, international organisations and private clients on a wide range of contentious and non-contentious public international law and international dispute resolution issues, including international boundaries, sovereign immunities, the Law of the Sea, transboundary resources and bilateral investment treaties. He regularly acts as co-agent, counsel and advocate before the International Court of Justice and ad hoc international arbitration tribunals, and also regularly sits as an arbitrator. Mubarak A. Waseem graduated with an LL.B., akc and LL.M. from King’s College London. During his LL.M., he specialized in International Dispute Resolution and was awarded the Dickson Poon Prize for best student on the LL.M. in International Dispute

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Resolution. Mubarak has researched at the British Institute of International and Comparative Law and King’s College London, and was an intern at the International Tribunal for the Law of the Sea. In 2017, Mubarak was a visiting lecturer in Public International Law at the University of Bedfordshire. In ­October 2017, Mubarak was called to the Bar of England and Wales at Lincoln’s Inn, and he will commence pupillage at Essex Court Chambers in September 2018. Professor Keyuan Zou is the Harris Professor of International Law at the Lancashire Law School of the University of Central Lancashire (UCLan), United Kingdom. He ­specializes in international law, in particular law of the sea and international environmental law. Before joining UCLan, he worked at Dalhousie University (Canada), ­Peking University (China), University of Hannover (Germany) and National University of Singapore. He has published over 60 refereed English papers in over 30 international journals. His single-authored books include Law of the Sea in East Asia: Issues and Prospects (2005), China’s Marine Legal System and the Law of the Sea (2005), China’s Legal Reform: Towards the Rule of Law (2006), and China-asean Relations and International Law (2009). His recent co-edited volumes include Securing the Safety of Navigation in East Asia ­(Oxford: ­Chandos, 2013), Non-traditional Security Issues and the South China Sea ­(Ashgate, 2014), and Arbitration concerning the South China Sea: Philippines v. China (Ashgate, 2016).

Introduction: The Law of the Sea and the Challenges of Transnational Governance Stephen Minas and H. Jordan Diamond The United Nations Convention on the Law of the Sea (“unclos”) is widely acknowledged as a standout success in UN treaty-making. Since it opened for signature in 1982 and entered into force in 1994, it has provided a constitutional framework for global ocean governance. Like many domestic constitutional orders, however, the diffusion of power and agency to a complex array of state, non-state, transnational and domestic actors creates implementation challenges. Simultaneously, rapid globalization processes have increased stress on a spectrum of key regimes of public international law. The confluence of these powerful factors is altering the fundamental nature of the law of the sea regime. We are witnessing paradigmatic transitions from purely public law to hybrids of public and private governance in the marine domain, echoing shifts on domestic and territorial fronts.1 Pressure is increasing on traditional international lawmaking processes, caused by new conditions and developments such as intensifying extreme weather and sea level rise, due to climate change,2 and the rise of non-state armed groups including pirates, traffickers, and private security groups.3 The proliferation of private governance mechanisms and their 1 See generally, Paul Schiff Berman, “Global Legal Pluralism”, Southern California Law Review, Vol. 80, No. 6 (2007), pp. 1155–1238; Terence Halliday & Gregory Shaffer, eds., Transnational Legal Orders (Cambridge University Press, 2014); Horatia Muir Watt, “Private International Law Beyond the Schism”, Transnational Legal Theory, 2/3 (2011), p. 347; Michael P. Vandenbergh, “The New Wal-Mart Effect: The Role of Private Contracting in Global Governance”, ucla Law Review, Vol. 54, No. 4 (2007), pp. 913–970; Peer Zumbansen, “Law and Legal Pluralism: Hybridity in Transnational Governance”, in Poul Kjaer, Paulius Jurcys & Ren Yatsunami, eds., Regulatory Hybridization in the Transnational Sphere (Martinus Nijhoff Publishers, 2013), pp. 49–70. 2 David D. Caron, “Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict”, in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes, and The Law of the Sea (Martinus Nijhof, 2009); David Freestone, Davor Vidas & Alejandra Torres Camprubi, “Sea Level Rise and Impacts on Maritime Zones and Limits: The Work of the ila Committee on International Law and Sea Level Rise”, Korean Journal of International and Comparative Law 5(1) (2017), p. 5. 3 Ian Urbina, “The Outlaw Ocean”, New York Times, July 25, 2015, https://www.nytimes.com/ interactive/2015/07/24/world/the-outlaw-ocean.html?mcubz=0.

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interweaving with existing but sometimes weak public law regimes provokes critical questions of efficacy and accountability for the next era of marine protection and use. These changes spur the need for reflection on the current state of the law of the sea framework for dispute resolution, environmental protection, and disaster response, as well as the overarching maintenance of an open, rules-based order for the oceans. Taking up this challenge, the Transnational Law Institute of King’s College London and the Law of the Sea Institute of the University of California, Berkeley co-hosted a symposium in London on the theme of “Stress Testing the Law of the Sea: Dispute Resolution, Disasters and New Challenges”.4 The conference, held in September-October 2016 with additional support from UC Berkeley’s Honorable G. William and Ariadna Miller Institute for Global Challenges and the Law, focused on two broad stressors: geopolitical change and environmental crisis. Over the course of two days, expert panels examined developments in public international law, maritime dispute arbitration, the geopolitics of the law of the sea, disputes over the South China Sea, formal and informal dispute resolution, climate change and ocean law, extreme weather events and disaster risk reduction, and maritime energy exploration, along with cross-­cutting issues. Sessions were characterized by innovative thinking on the application of the current legal frameworks to pressing ocean governance challenges, in light of the stressors present, as well as realist examination of some of the collisions already witnessed and likely to increase between legal doctrine and practice. This book captures and builds upon the proceedings of the symposium. It explores the emerging plurality of public, private, and hybrid forms of governance and norm creation in the marine domain. In doing so, it examines key developments that are stress-testing the current law of the sea framework. Setting the tone is the foreword by Professor Gudmundur Eiriksson, “Reflections on Forty Years of the Law of the Sea”. Tracing key developments in the law of the sea since the negotiation and adoption of unclos, Eiriksson recalls the “Law of the Sea spirit” of close and constructive cooperation which infused those negotiations. Turning to the present, Eiriksson calls for the same spirit of collegiality to animate work to address the pending challenges facing ocean law, most notably to “redouble the efforts to make the Common Heritage of Mankind a reality”.

4 King’s College London, “Stress Testing the Law of the Sea”, https://www.kcl.ac.uk/law/tli/ events/law-of-the-sea.aspx.

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3

unclos’ Dispute Resolution Framework in a Time of Geopolitical Change

Part 1 of the book, “Stress Testing unclos Dispute Resolution”, explores the changing practices of marine dispute resolution – long the foundation of the law of the sea framework – in an era when the lines between private and public governance are continually shifting. Several chapters in this section examine how courts and tribunals are innovating in the context of these new challenges. Judge Vladimir Golitsyn’s introductory chapter highlights the role of the International Tribunal for the Law of the Sea (itlos) in the broad and shifting domain of global ocean governance. Golitsyn finds that one of the primary contributions of itlos to ocean governance has been the Tribunal’s advisory opinions. For example, the Seabed Disputes Chamber’s Advisory Opinion on responsibilities and obligations of States with respect to activities in the Area “produced almost immediate effects from the point of global ocean governance” by enabling developing States to sponsor plans of work submitted to the International Seabed Authority. Golitsyn concludes that itlos could further contribute to ocean governance by “clarifying the understanding of key legal concepts and by developing the legal regime of the oceans established by the Convention”. This is a key role the Tribunal can play in legal adaptation to new challenges. Mubarak Waseem addresses another tool within the Tribunal’s arsenal, that of issuing provisional measures both in matters brought before it as well as in matters pending before dispute resolution fora. Waseem explores how the Tribunal has applied provisional measures in the past and how the Tribunal’s authority varies from traditional international law norms. He also explores the role of the precautionary approach in the Tribunal’s jurisprudence, as compared to the precautionary principle in international law more broadly, and its potential interrelationship with the role of provisional measures. Noting the ability of the Tribunal to issue provisional measures to implement protection of the marine environment, regardless of whether such measures relate to the interests of the parties to the dispute, Waseem finds that “the provisional measures jurisdiction of the Tribunal is a chisel by which it can carve for itself a policy-oriented, trusteeship function”. Judith Levine and Garth L. Schofield consider how the Permanent Court of Arbitration (pca) is “navigating uncharted procedural waters in a rising sea of cases”, such as by dealing with procedural challenges including non-­ participation by a party, intervention or participation by non-parties and consideration of technical evidence and fact-finding. These challenges come in

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the context of a rising frequency of environmental matters featuring in international disputes, although Levine and Schofield note that the adjudicative practices discussed also have salience for private and mixed arbitrations. Chapters in this section also consider the treatment of the substance of the law of the sea in recent cases. Professor Keyuan Zou identifies four key controversial issues in unclos implementation: straight baselines, the regime of islands, military activities in Exclusive Economic Zones, and maritime historic rights. He describes why these areas are controversial, and how varying state practice, diverging interpretation by international institutions, and the influence of unclos’ associated agreements have led to implementation challenges in practice. Zou suggests recourse to unclos’ review conference mechanism as a tool to help clarify these issues and further develop the law of the sea. One of the most significant unclos disputes of recent years has been the South China Sea arbitration concerning the Philippines and the People’s Republic of China, administered by the pca. Chapters in this Part address both procedural developments and the exposition of substantive law. Professor Vasco Becker-Weinberg analyzes the Tribunal’s significant contributions to the interpretation of the regime of islands and States’ obligations to protect and preserve the marine environment, while also considering the prospects of Sino-Philippine cooperation in the aftermath of the substantive award. Subsequently, Professor Robert Volterra critically examines the evolving treatment of maritime features and third parties in the international adjudication of maritime boundary disputes, finding significant changes in the approaches taken in tribunals on both topics. The Tribunal in the recent South China Sea arbitration undertook detailed analysis of both the evidence as to features and the meaning of Article 121(3), and displayed a “robust” approach to the claims of third parties, “exercis[ing] jurisdiction in spite of the numerous interconnected claims by multiple littoral States”. These approaches are distinguished from the approaches taken by tribunals in prior matters. (It is worth noting that the contributions from Zou as well as Levine and Schofield also contain analyses relevant to the South China Sea dispute, including discussion of the regime of islands and arbitration procedures.) Although primarily concerned with resolving disputes between States, unclos’ dispute settlement mechanisms may also have a bearing on the claims of certain non-State actors. Pierre-Emmanuel Dupont explores the legal issues which arise when non-State actors, in the form of unrecognized/de facto States (or quasi-States) occupying coastal areas, claim maritime zones. Dupont finds that resolution of territorial sovereignty is generally bound to remain a condition precedent for maritime delimitation, but also identifies an “an emerging

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line of jurisprudence” in which courts or tribunals pronounce on the ability of features to generate maritime entitlements, without ruling on sovereignty issues. 2

The Interface of unclos and Emerging Environmental, Disaster & Energy Challenges

Part 2 of the book explores emerging issues whose inherent levels of uncertainty challenge the structure of the current law of the sea framework, including climate change, disasters, and offshore energy development. In the context of the Chagos Marine Protected Area (mpa) arbitration concerning Mauritius and the United Kingdom, Dr. Alexandros Ntovas analyzes the interplay between unclos and the Agreement for the Implementation of the Provisions of unclos relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the Agreement). While noting the widespread problem of fish stock collapses within national jurisdiction, Ntovas argues that an expansive reading of the unclos Article 297(3)(a) limitation on compulsory dispute settlement concerning fisheries in the Exclusive Economic Zone is contrary to the Agreement’s purpose to avoid “creeping jurisdiction”. In her chapter, Professor Maria Gavouneli assesses the evolution of unclos Part xii obligations to protect and preserve the marine environment, including through the Chagos mpa and South China Sea arbitrations, and the specific obligation to conduct an environmental impact assessment. She concludes that the accrual of “normative layers” in the environmental field shows unclos to be a “living instrument”. Disaster risk reduction is a significant component of the UN Sustainable Development Agenda, which holds particular urgency for many coastal regions and islands. Professor Anastasia Telesetsky highlights the potential of unclos to help States respond to extreme weather events, including through enforcement of the obligations to promote marine scientific research and to promote national and regional marine research and technology transfer centers. On a related topic, Stephen Minas considers opportunities for existing provisions of the law of the sea to contribute to the development and operationalization of the emerging law of international disaster relief, including under the Sendai Framework for disaster risk reduction and the Draft Articles on the Protection of Persons in the Event of Disasters. Relevant here is not just the freedoms of navigation contained in unclos, but also law and regulation for which the

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I­ nternational Maritime Organization is responsible, primarily the Convention on Facilitation of International Marine Traffic. As both the articles by Telesetsky and Minas instance, disaster risk reduction and the broader challenge of sustainable development require the coordination of diverse UN organizations and international legal instruments in new and previously unexplored ways. Finally, Dr. Nicholas Ioannides examines the consequences when offshore hydrocarbon discoveries are overlaid with territorial disputes and tensions between littoral states, focusing particularly in the Eastern Mediterranean. He emphasizes that hydrocarbons frequently drive heightened interest in marine territories, but political disagreements can prevent resolution of competing claims or joint development agreements. Ioannides warns that it is likely that oil and gas development will soon occur in two specific parts of the Eastern Mediterranean – including the area between the Greek islands of the southeastern Aegean and Cyprus, and a contested (by Lebanon) boundary between Israel and Cyprus – and may put at stake the “fragile stability in the region”. 3

Forging a Path Forward

Overall, we suggest that the law of the sea emerges from the “stress test” of challenges catalogued in this volume as a robust instrument for bringing order to the evermore crowded and competitive human activities in our oceans – but an instrument that must keep evolving. In response to inter-state disputes, adjudication under unclos is innovating procedural practices. Recent developments such as the issuance of ­advisory opinions by itlos are contributing to the elaboration of oceans governance through the authoritative explanation of law. In response to environmental and humanitarian challenges, unclos and its implementing agreements are significant resources. However, faced with increasing, interrelated effects of climate change and ocean acidification, the projected intensification in natural disasters and greater threats to biodiversity and fish stocks, it is clear that the law of the sea cannot stand still. The UN’s 2030 Agenda for Sustainable Development has seen important normative and programmatic advances, notably through the adoption of the Global Goals, the Paris Agreement on Climate Change and the Sendai Framework on Disaster Risk Reduction. As a foundational matter, continuing discussions focused explicitly on the changing context surrounding the current law of the sea framework would help its ability to meet not only existing challenges but also those which are newly

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emerging or increasingly urgent, such as the protection of marine biodiversity in areas beyond national jurisdiction. unclos was, and in many ways still is, a visionary constitution for the oceans. But as technology progresses, geopolitics shift, and the environment changes, we need to continue proactively exploring how we can augment the Convention’s robust foundation.

Part 1 Stress Testing unclos Dispute Resolution

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Chapter 1

The Role of the International Tribunal for the Law of the Sea in Global Ocean Governance Vladimir Golitsyn* There is no universally accepted definition of global ocean governance. The notion of global governance is defined by the Commission on Global Governance as a continuing process through which conflicting or diverse interests may be accommodated and cooperative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements … There is no single model or form of global governance, nor is there is single structure or set of structures. It is a broad, dynamic, and complex, process of interactive decision-making.1 In this context ocean governance is sometimes understood as “the conduct of the policy, actions and affairs regarding the world’s oceans. Within governance, it incorporates the influence of non-state actors, i.e. stakeholders, ngos and so forth, therefore the state is not the only acting power in policy making”.2 Numerous international institutions contribute to ocean governance on the global level as well as in regional contexts covering a broad range of highly important matters. This article does not intend to provide a list of all the institutions that are pertinent in this respect. In the Joint Communication on international ocean governance of the European Union international ocean governance is defined as a process for managing and using the world’s oceans and their resources in ways that keep the oceans healthy, productive, safe, secure and resilient.3

* H.E. Judge, President of the International Tribunal for the Law of the Sea. 1 Commission on Global Governance, Our Global Neighborhood (Oxford, 1995) pp. 2–4; Patricia Birnie, Alan Boyle, Catherine Redgwell, International Law and the Environment, Third Edition (Oxford University Press, 2009) p. 43. 2 “Ocean Governance”, https://en.wikipedia.org/wiki/Ocean_governance. 3 Commission of the European Union, International ocean governance: an agenda for the future of our oceans Joint Communication to the European Parliament, the Council, the European

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The United Nations Convention on the Law of the Sea (hereinafter “the Convention”) provides the paramount and most comprehensive legal regime for the oceans in history. Its adoption in 1982 constitutes one of the most significant developments in global ocean governance. The Convention, which is frequently quite rightly called the “constitution for the oceans”, according to its preamble establishes “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment”. To achieve its goals, the 1982 Convention, inter alia, establishes three main institutions, namely: the International Seabed Authority, through which States Parties to the Convention organize and control all activities of exploration for, and exploitation of, mineral resources of the seabed and ocean floor and subsoil thereof, beyond limits of national jurisdiction (articles 1, paragraphs 1, 2 and 3, 157, paragraph 1); the Commission on the Limits of the Continental Shelf, whose main task is to make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf (article 76, paragraph 8); and the International Tribunal for the Law of the Sea (hereinafter “the Tribunal” or “itlos”), whose jurisdiction comprises all disputes and all applications concerning interpretation or application of the Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (article 288, paragraphs 1 and 2; Annex vi, article 21). While judicial institutions do not play a forefront role in global governance, they constitute an integral element of this process by providing authoritative guidance on what the law is and by fostering the progressive development of international law. This is particularly true in the case of the International Tribunal for the Law of the Sea because of special responsibilities assigned to it under the Convention. In performance of these responsibilities the Tribunal has accumulated a body of jurisprudence which constitutes its contribution to the progressive development of international law of the sea and thus global ocean governance. In exercising its jurisdiction the Tribunal on several occasions has had an opportunity to provide such contribution to global ocean governance. It is not possible in this article to give a comprehensive analysis of such contribution. Therefore, the article highlights only the most important examples. Economic and Social committee and the Committee of the Regions, 2016, available at: https:// ec.europa.eu/maritimeaffairs/sites/maritimeaffairs/files/join-2016-49_en.pdf.

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Contentious Cases

In contentious cases dealt with by the Tribunal it has made significant pronouncements on a number of issues pertaining to ocean governance, including such diverse topics as the continental shelf beyond 200 nautical miles, the use of force in law enforcement on the seas and the extent of coastal States’ rights in their exclusive economic zones. Among the most significant are the Tribunal’s findings in the case of delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal.4 In that case, the Tribunal provided important clarifications regarding the notion of “natural prolongation” under article 76 of the Convention. The Tribunal stated that: ... one of the principal objects and purposes of article 76 of the Convention is to define the precise outer limits of the continental shelf, beyond which lies the Area. The Tribunal therefore finds it difficult to accept that natural prolongation referred to in article 76, paragraph 1, constitutes a separate and independent criterion a coastal State must satisfy in order to be entitled to a continental shelf beyond 200 nm.5 The Tribunal added that, for these reasons, it is of the view that the reference to natural prolongation in article 76, paragraph 1, of the Convention, should be understood in light of the subsequent provisions of the article defining the continental shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin, to be ascertained in accordance with article 76, paragraph 4. To interpret otherwise is warranted neither by the text of article 76 nor by its object and purpose.6 In the Bangladesh/Myanmar case the Tribunal also initiated an innovative approach to dealing with the so-called grey zone in delimitation cases. A grey zone area results “when a delimitation line which is not an equidistance line reaches the outer limit of one State’s exclusive economic zone and continues 4 Delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, itlos Reports 2012, p. 4. 5 Ibid, p. 113, para. 435. 6 Ibid, p. 114, para. 437.

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beyond it in the same direction, until it reaches the outer limit of the other State’s exclusive economic zone”.7 The Tribunal observed “in this respect that the legal regime of the continental shelf has always coexisted with another legal regime in the same area. Initially that other regime was that of the high seas and the other States concerned were those exercising high seas freedoms. Under the Convention, as a result of maritime delimitation, there may also be concurrent exclusive economic zone rights of another coastal State. In such a situation, pursuant to the principle reflected in the provisions of articles 56, 58, 78 and 79 and in other provisions of the Convention, each coastal State must exercise its rights and perform its duties with due regard to the rights and duties of the other”.8 In the view of the Tribunal “[t]here are many ways in which the Parties may ensure the discharge of their obligations in this respect, including the conclusion of specific agreements or the establishment of appropriate cooperative arrangements. It is for the Parties to determine the measures that they consider appropriate for this purpose”.9 Since a significant number of cases considered by the Tribunal have related to the arrest and detention of vessels and their crews, which frequently involved use of force, the Tribunal has found it necessary in those cases to highlight the importance of humanitarian considerations and respect for human rights. In the M/V “Louisa” case the Tribunal reiterated its view, expressed in various forms in several of its previous judgments,10 “that States are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances”.11 In the M/V “saiga” case the Tribunal provided clarification regarding the use of force in the arrest of ships by stating that although the Convention does not contain express provisions in this regard, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible 7 Ibid, p. 191, para. 464. 8 Ibid, p. 121, para. 475. 9 Ibid, p. 121, para. 476. 10 See “Juno Trader” (Saint Vincent and the Grenadines v. Guinea-Bissau), Prompt Release, Judgment, itlos Reports 2004, p. 17, pp. 38 to 39, para. 77; “Tomimaru” ( Japan v. Russian Federation), Prompt Release, Judgment, itlos Reports 2005–2007, p. 74, p. 96, para. 76. 11 M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment, itlos R ­ eports 2013, p. 4, p. 46, para. 155.

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and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.12 In the M/V “Virginia G” case, the Tribunal was called upon to answer the question as to whether bunkering of foreign vessels in the exclusive economic zone is an activity that can be regulated by the coastal State or whether it falls under the freedom of navigation enjoyed by vessels under foreign flags.13 The practice of bunkering is not directly addressed in the Convention. The Tribunal found, however, that where fuel is provided to vessels fishing in the exclusive economic zone of another State, that coastal State other than the flag State has competence to regulate the bunkering operation. The Tribunal pointed out that in this situation bunkering has a direct connection with fishing14 and that the regulation of this kind of bunkering by the coastal State therefore “derives from [its] sovereign rights … to explore, exploit, conserve and manage natural resources”.15 At the same time, the Tribunal made it clear that the coastal State “does not have such competence with regard to other bunkering activities, unless otherwise determined in accordance with the Convention”.16 2

Provisional Measures

The Tribunal has dealt with a number of requests for provisional measures and, in deciding on them, has also provided a number of important clarifications regarding the obligations of States under the Convention.17 12 13 14 15 16 17

M/V “saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, itlos Reports 1999, p.10, pp. 61 to 62, para. 155. M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, itlos Reports 2014, p. 4, p. 66, paras. 207 and 208 and p. 70, para. 220. Ibid., para. 215. Ibid., para. 222. Ibid., para. 223. On provisional measures, see Akl, Joseph, Proceedings on provisional measures before the International Tribunal for the Law of the Sea, in R.A. Kolodkin and S.M. Punzhin (eds.), Mezhdunarodnoe morskoe pravo: Stat′i pami͡ati A.L. Kolodkina = Inter­ national Law of the Sea: Essays in memory of Anatoly L. Kolodkin, Statut, Moskva, 2014, pp. 164–181; Mensah, Thomas A, Provisional measures in the International Tribunal for the Law of the Sea, 62 (1/2) Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, 2002, pp. 43–54; Wolfrum, Rüdiger, Provisional measures of the International Tribunal for the Law of the Sea, in P. Chandrasekhara Rao & Rahmatullah Khan (eds.) The

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In the mox Plant and Land Reclamation cases the Tribunal stressed that “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 and that rights arise therefrom which the Tribunal may consider appropriate to preserve under article 290 of the Convention”.18 Starting with the Southern Bluefin Tuna cases, the Tribunal has consistently held the view that parties should “act with prudence and caution” to prevent serious harm to the marine environment, in effect demanding, though not in these precise terms, application of the precautionary approach.19 3

Prompt Release Cases

In considering prompt release cases the Tribunal has provided guidance on an issue that is very highly pertinent in international shipping, namely the requirements for the release of a fishing vessel arrested under the allegation of having violated coastal State’s laws. The Convention provides that, under specific conditions, fishing vessels need to be released upon the posting of a reasonable bond or financial security and the prompt release proceedings under article 292 of the Convention offer an opportunity for the flag State to obtain an Order of the Tribunal for such release if the conditions are met.20

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International Tribunal for the Law of the Sea: Law and Practice, The Hague, Kluwer Law International, 2001, pp. 173–186; Tanaka, Yoshifumi; Provisional measures prescribed by itlos and marine environmental protection, 108 ASIL PROCEEDINGS, 2014, pp. 365–367. 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. Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, itlos Reports 1999, p. 280, p. 296, para. 77; mox Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, itlos Reports 2001, p. 95, p. 110, para. 84; 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. 26, para. 99; M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain),Provisional Measures, ­Order of 23 December 2010, itlos Reports 2008–2010, p. 58, p. 70, para. 77. Treves, Tullio, The proceedings concerning prompt release of vessels and crews before the International Tribunal for the Law of the Sea, 11 (2) International Journal of Marine and Coastal Law (1996, Special Issue), pp. 179–200; Gautier, Philippe, Les affaires de « prompte mainlevée » devant le Tribunal international du droit de la mer, 3 The Global Community Yearbook of International Law and Jurisprudence (2003b), pp. 79–106; Tanaka, Yoshifumi, Prompt release in the United Nations Convention on the Law of the Sea: some reflections on the itlos jurisprudence, 51 (2) Netherlands International Law Review, 2004, pp. ­237–271; Serdy, Andrew & Bliss, Michael, Prompt release of fishing vessels: state practice in the light of the cases before the International Tribunal for the Law of the Sea,

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In its respective jurisprudence, the Tribunal clarified a number of points regarding the application of article 292 of the Convention including, the determination of the reasonableness of a bond or other financial security, the financial nature of the bond or other financial security, the effects of the confiscation of the vessel, and the relationship of the provisions of article 292 to domestic procedures. In this article I would like to highlight only one of these points, namely the determination of the reasonableness of a bond or other financial security. The Tribunal has pointed out that a number of factors are relevant in an assessment of the reasonableness of bonds or other financial security. They include the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form.21 At the same time the Tribunal stated that “[t]his is by no means a complete list of factors. Nor does the Tribunal intend to lay down rigid rules as to the exact weight to be attached to each of them”.22 In this respect, the Tribunal has added that “the amount of a bond should be proportionate to the gravity of the alleged offences”.23 4

Advisory Opinions

It would not be an exaggeration to state that the main inputs by the Tribunal to global ocean governance have been made through two advisory opinions, the first given by its Seabed Disputes Chamber and the second by the Tribunal as

21 22 23

in Alex G. Oude Elferink and Donald R. Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses, Leiden, Boston, Martinus Nijhoff Publishers, 2004, pp. 273–294; Mensah, Thomas A., The Tribunal and the prompt release of vessels, 22 (3) The International Journal of Marine and Coastal Law, 2007, pp. 425–449; Trevisanut, Seline, The exercise of administrative functions by itlos: a comment on prompt release cases, in International Courts and the Development of International Law: Essays in Honour of Tullio Treves, Nerina Boschiero, Tullio Scovazzi et al., eds., The Hague, t.m.c. Asser Press, 2013, pp. 311–323. “Camouco” (Panama v. France), Prompt Release, Judgment, itlos Reports 2000, p. 10, p. 31, para. 67. “Monte Confurco” (Seychelles v. France), Prompt Release, Judgment, itlos Reports 2000, p. 86, p. 109, para. 76. “Hoshinmaru” ( Japan v. Russian Federation), Prompt Release, Judgment, itlos Reports 2005–2007, p. 18, p. 47, para. 88.

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a whole. Consequently, this article places substantial emphasis on these two advisory opinions. Prior to examining the contribution made by these two advisory opinions to global ocean governance, it is worth mentioning that the situation in respect of the Tribunal’s advisory jurisdiction is rather complex.24 The only express provisions on advisory opinions found in the Convention relate to the Seabed Disputes Chamber, which is an integral part of the Tribunal and is established under Section 4 of Annex vi to the Convention containing the Statute of the Tribunal. The jurisdiction, powers and functions of the Seabed Disputes Chamber are defined in Part xi, Section 5, of the Convention. This section provides in article 191 that “the Seabed Disputes Chamber shall [emphasis added] give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities” and 24

On the advisory function of the Tribunal, see Boisson de Chazournes, Laurence, The International Tribunal for the Law of the Sea, in Giorgetti, Chiara (ed.), The Rules, Practice, and Jurisprudence of International Courts and Tribunals, Martinus Nijhoff, 2012, pp. 111–131, at p. 116; Takana, Yoshifumi, The International Law of the Sea, Cambridge University Press, 2012, at p. 415; Espósito, Carlos, Advisory opinions and jurisdiction of the International Tribunal for the Law of the Sea, in Harry N. Scheiber and JinHyun Paik (eds.), regions, institutions, and law of the sea: studies in ocean governance, Martinus Nijhoff, 2013, pp. 57–71; Gao, Jianjun, The Legal Basis of the Advisory Function of the International Tribunal for the Law of the Sea as A Full Court: An Unresolved Issue, 4 (1) kmi International Journal of Maritime Affairs and Fisheries, 2012, pp. 83–106; Gautier, Philippe, Advisory Proceedings before the International Tribunal for the Law of the Sea, in Zhiguo Gao, Haiwen Zhang, Haisheng Zhang et al. (eds.), Technical and legal aspects of the regimes of the continental shelf and the area, China Ocean Press, 2011, pp. 129 –143; Ndiaye, Tafsir Malick, The Advisory Function of the International Tribunal for the Law of the Sea, 9 (3) Chinese Journal of International Law, 2010, pp. 565–587; Sohn, Louis B., Advisory Opinions by the International Tribunal for the Law of the Sea or its Seabed Disputes Chamber, in Myron H. Nordquist and John Norton Moore (eds.), oceans policy: new institutions, challenges and opportunities, Martinus Nijhoff, 1999, pp. 61–69; Treves, Tullio, Advisory Opinions under the Law of the Sea Convention, in Myron H. Nordquist and John Norton Moore (eds.), current marine environmental issues and the international tribunal for the law of the sea, Martinus Nijhoff, 2001, pp. 81–94; Tuerk, Helmut, Advisory Opinions and the Law of the Sea, in Miha Pogačnik (ed.), challenges of contemporary international law and international relations: liber ­a micorum in ­h onour of ernest petrič, Nova Gorica, The European Faculty of Law, 2011, pp. 365–384; Wolfrum, Rüdiger, Advisory Opinions: Are They a Suitable Alternative for the Settlement of International Disputes?, in Rüdiger Wolfrum and Ina Gätzschmann (eds.), international dispute settlement: room for innovation?, Springer, 2013, pp. 35–123; You, Ki-Jun, Advisory Opinions of the International Tribunal for the Law of the Sea: Article 138 of the Rules of the Tribunal, Revisited, 39 (4) Ocean Development and International Law (2008), pp. 360–371.

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that “such options shall be given as a matter of urgency”. Thus, the language of article 191 is quite categorical. As to the Tribunal, the Convention makes no express reference to the advisory jurisdiction of the Tribunal. However, article 21 of the Statute of the Tribunal concerning its jurisdiction provides that “[t]he jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal” [emphasis added]. This last phrase in article 21 of the Statute provides a legal basis for the advisory jurisdiction of the Tribunal. The question of its competence to give advisory opinions was clarified by the Tribunal in its advisory opinion rendered in response to a request submitted by the Sub-Regional Fisheries Commission (hereinafter “the srfc”) ­concerning illegal, unreported and unregulated fishing activities conducted within the exclusive economic zones of the srfc Member States (Case No. 21).25 The Tribunal pointed out in the advisory opinion that “the word ‘disputes’ in article 21 of the Statute is an unambiguous reference to the contentious jurisdiction of the Tribunal” and that “the word ‘applications’ refers to applications in contentious cases submitted to the Tribunal in accordance with the Convention”.26 The Tribunal further noted that “the words all ‘matters’ should not be interpreted as covering only ‘disputes’ for, if that were to be the case, article 21 of the Statute would simply have used the word ‘disputes’”.27 “Consequently”, in the view of the Tribunal, “it must mean something more than only ‘disputes’” and “[t]hat something more must include advisory opinions, if specifically provided for in ‘any other agreement which confers jurisdiction on the Tribunal’”.28 The Tribunal observed that “[i]n terms of article 21 of the Statute, it is the ‘other agreement’ which confers such advisory jurisdiction on the Tribunal” and therefore “[a]rticle 21 [of the Statute] and the ‘other agreement’ … constitute the substantive legal basis of the advisory jurisdiction of the Tribunal”.29 This article reviews the two advisory opinions delivered so far: by the Seabed Disputes Chamber in Case No. 17 and the Tribunal in Case No. 21. For both cases the relevant facts and the proceedings are summarized and particular attention is paid to some of the conclusions reached by the Chamber and the 25 26 27 28 29

Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc), Advisory Opinion, 2 April 2015, itlos Reports 2015, p. 4, pp. 18 to 25, para. 37–69. Ibid, p. 21, para. 55. Ibid, p. 21, para. 56. Ibid. Ibid, p. 22, para. 58.

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Tribunal that can be seen as contributing to the progressive development of international law and, as a consequence, to global ocean governance. 5

The Seabed Disputes Chamber’s Advisory Opinion on Responsibilities and Obligations of States with Respect to Activities in the Area (Case No. 17)30

A Facts and Proceedings The events which led to the Request for an advisory opinion arose within the Authority, an international organization established by the Convention through which States Parties organize and control activities in the Area, particularly with a view to administering the resources of the Area.31 On 10 April 2008, two private companies, one sponsored by the Republic of Nauru (“Nauru”) and the other by the Kingdom of Tonga, filed applications with the Authority for approval of a plan of work to explore areas reserved for the conduct of activities by the Authority through the Enterprise, as established under article 170 of the Convention, or in association with developing States pursuant to Annex iii, article 8, of the Convention. The Legal and Technical Commission of the Authority, to which these proposals were submitted for consideration in 2009, decided at its 15th session to defer their consideration. In light of this development, on 1 March 2010, Nauru submitted to the Council of the Authority through its Secretary-General a proposal to seek an advisory opinion from the Seabed Disputes Chamber. In its proposal Nauru indicated that, like many developing States, it did not possess the technical and financial capacity to undertake deep seabed mining and therefore had to engage entities in the global private sector. Recognizing that it could not afford exposure to the legal risks potentially associated with a deep seabed mining project, Nauru sponsored Nauru Ocean Resources Inc.; such sponsorship was premised on the assumption that Nauru could effectively mitigate (with a high degree of certainty) the potential liabilities or costs arising from its sponsorship.32 The Council debated the issue but decided not to adopt the proposal as formulated by Nauru and instead to request an advisory opinion on three more abstract but concise questions. These questions were formulated by the Council in its decision adopted on 6 May 2010 “without a vote” and “without 30 31 32

Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, itlos Reports 2011, p. 10. Article 157, paragraph 1, of the Convention. Responsibilities and obligations of States with respect to activities in the Area, supra, p. 10, pp. 16 and 17, para. 4.

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objection”.33 The request for an advisory opinion was transmitted to the Registry of the Tribunal on 14 May 2010 and was entered in the List of cases as Case No. 17.34 B Role of the Chamber in Advisory Proceedings The Chamber noted in its Advisory Opinion that in order to exercise its functions properly, the Authority may require the assistance of an independent and impartial judicial body and that this is the underlying reason for the advisory jurisdiction of the Chamber. In the exercise of that jurisdiction, the Chamber is part of the system in which the Authority’s organs operate, but its task within that system is to act as an independent and impartial body.35 Conclusions Reached by the Chamber in Response to the Questions Addressed to It The Seabed Disputes Chamber considered the three questions submitted to it by the Council as outlined below. (1) The first question reads as follows: C

What are the legal responsibilities and obligations of the States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part xi, and the 1994 Agreement relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982 (“the 1994 Agreement”)? In response to this question the Chamber provided a number of important clarifications, including in respect of the meaning of “sponsorship” and of the term “activities in the Area”. With reference to the notion of “sponsorship” the Chamber observed that [t]he purpose of requiring the sponsorship of applicants for contracts for the exploration and exploitation of the resources of the Area is to achieve the result that the obligations that are set out in the Convention, a treaty under international law which binds only States Parties thereto, are complied with by entities that are subjects of domestic legal systems.36 33 34 35 36

Ibid. Ibid, pp. 14 and 15, paras. 1 and 2. Ibid, p. 23, para. 26. Ibid, p. 32, para. 75.

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In explaining the meaning of the expression “activities in the Area” used in the question, the Chamber clarified that, in the context of both exploration and exploitation, this expression includes the recovery of minerals from the seabed and their lifting to the water surface, as well as activities such as evacuation of water from minerals and the preliminary separation of materials of no commercial interest, including their disposal at sea.37 The Chamber further clarified that “processing”, namely the process through which metals are extracted from the minerals and which is normally conducted at a plant situated on land, is excluded from the expression “activities in the Area”.38 In responding to this question, the Chamber provided an important clarification in respect of the notion “responsibility to ensure”. The Chamber pointed out that “[t]he expression ‘to ensure’ is often used in international legal instruments to refer to obligations in respect of which, while it is not considered reasonable to make a State liable for each and every violation committed by persons under its jurisdiction, it is equally not considered satisfactory to rely on the mere application of the principle that the conduct of private persons or entities is not attributable to the State under international law”.39 As stated by the Chamber, the “obligation to ensure” is an obligation “of conduct” and “not result”. It is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result. Consequently, the sponsoring State’s obligation “to ensure” is not an obligation to achieve in each and every case the result that the sponsored contractor complies with its obligations. In other words, according to the Chamber, this is an obligation of “due diligence”.40 In this connection the Chamber also elaborated on the content of the “due diligence” obligation, observing that this concept “may not easily be described in precise terms”, because “due diligence” is a variable concept, which may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in the light, for instance, of new scientific or technological knowledge.41 It may also change in relation to the risks involved in the activity.42 According to the Chamber, in addition to the “due diligence” obligation, sponsoring States have “direct obligations”, which exist separately from the 37 38 39 40 41 42

Ibid, p. 37, paras. 94 and 95. Ibid, p. 37, para. 95. Ibid, p. 41, para. 112. Ibid, p. 41, para. 110. Ibid, p. 43, para. 117. Ibid.

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“due diligence” obligation but can also be seen as a relevant factor in determining whether a sponsoring State meets its “due diligence” obligation. According to the Chamber, among the most important of these direct obligations are: (i) the obligation to assist the Authority in the exercise of control over activities in the Area; (ii) the obligation to apply a precautionary approach; (iii) the obligation to apply best environmental practices; (iv) the obligation to take measures to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment; (v) the obligation to ensure the availability of recourse for compensation in respect of damage caused by pollution; and (vi) the obligation to conduct environmental impact assessments.43 In this regard, it may be highlighted that the Chamber pronounced on the status of the precautionary approach, observing that this concept “has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration”.44 This observation led the Chamber to the view that “this has initiated a trend towards making this approach part of customary international law”.45 With reference to the obligation to conduct an environmental impact ­assessment, the Chamber came to the conclusion that, while this is a direct obligation under the Convention, it should also be regarded as “a general obligation under customary international law”.46 An important issue before the Chamber concerned the possible application of the notion “common but differentiated responsibilities” with respect to ­activities in the Area.47 In this regard, the Chamber explained that no preferential treatment was accorded under the provisions of the Convention to developing States acting as sponsors. Therefore “the general provisions concerning the responsibilities and liability of the sponsoring State apply equally to all sponsoring States, whether developing or developed”.48 (2) The second question reads as follows: What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part xi, and the 1994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2 (b), of the Convention? 43 44 45 46 47 48

Ibid, p. 75, para. 242. Ibid, p. 47, para. 135. Ibid. Ibid, p. 50, para. 145. Ibid, pp. 52 to 55, paras. 151 to163. Ibid, pp. 53/54, para. 158.

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In answering the second question, the Chamber clarified that liability arises for a sponsoring State when it fails to carry out its own responsibilities and that, so long as the sponsoring State complies with its responsibilities, it is not liable for the failure of the sponsored contractor to meet its obligations.49 Thus, as stated by the Chamber, the sponsoring State’s liability arises not from a failure by a sponsored contractor, but rather from its own failure to carry out its own responsibilities.50 The Chamber further made clear that the Convention establishes two conditions for liability of the sponsoring State to arise: (i) the failure of the sponsoring State to carry out its responsibilities; and (ii) the occurrence of damage.51 The above considerations led the Chamber to the conclusion that the liability of a sponsoring State arises from its failure to carry out its own responsibilities and must be triggered by the damage caused by the sponsored contractor, that there must therefore be a causal link between the sponsoring State’s failure and the damage, and that such a link cannot be presumed.52 With reference to the issue of the relationship between the liability of the sponsoring State and that of the sponsored contractor, the Chamber underlined that these two forms of liability exist in parallel and that the liability regime established under the Convention and related instruments leaves no room for residual liability. While the liability of the sponsoring State, as explained by the Chamber, arises from its failure to comply with its responsibilities, the liability of the sponsored contractor arises from its failure to comply with its obligations under its contract and its undertakings thereunder.53 (3) The third question reads as follows: What are the necessary and appropriate measures that a sponsoring State must take in order to fulfill its responsibility under the Convention, in particular Article 139 and Annex iii, and the 1994 Agreement? In response to the third question, the Seabed Disputes Chamber explained that sponsoring States are required to establish laws and regulations and take administrative measures within their legal systems to ensure that sponsored contractors comply with their obligations. Such laws, regulations and administrative measures may include the establishment of enforcement mechanisms 49 50 51 52 53

Ibid, p. 57, para. 172. Ibid, p. 41, para. 110. Ibid, p. 58, para. 176. Ibid, p. 60, para. 184. Ibid, pp. 63 to 64, paras. 201 and 204.

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for active supervision of the activities of the sponsored contractor.54 The provisions in domestic law that are necessary for implementing the obligations of the sponsoring State under the Convention may also concern “financial viability and technical capacity of sponsored contractors, conditions for issuing a certificate of sponsorship and penalties for non-compliance by such contractors”.55 These laws, regulations and administrative measures “should be in force at all times that a contract with the Authority is in force”.56 In addition, domestic law of the sponsoring State must be at least as protective of the marine environment as the rules adopted by the Authority.57 The existence of such laws, regulations and administrative matters is not a prerequisite for contracting with the Authority. However, it is a necessary requirement for carrying out the obligation of due diligence of the sponsoring State and for seeking exemption from liability.58 It follows from the above that in the view of the Chamber it is not sufficient merely to impose contractual obligations on the contractor requiring it to comply with the Convention.59 The Chamber concluded that the scope and extent of the laws and administrative measures required depend upon the legal system of the sponsoring State. However, the Convention requires in Annex iii, article 4, paragraph 4, that the sponsoring State put in place laws, regulations and administrative measures that are “reasonably appropriate” if it is to be absolved from liability for damage caused by any failure of a contractor sponsored by it to comply with its obligations.60 D General Observation The Advisory Opinion of the Seabed Disputes Chamber included important clarifications regarding the application of the international regime governing exploration for, and exploitation of, mineral resources of the seabed and ocean floor and subsoil thereof, in areas beyond limits of national jurisdiction, and produced almost immediate effects from the point of global ocean governance. It opened the door for developing States to sponsor plans of work submitted to the International Seabed Authority for the exploration for such resources and thus to become active and equal players in deep seabed mining activities. 54 55 56 57 58 59 60

Ibid, p. 68, para. 218. Ibid, p. 72, para. 234. Ibid, p. 77, para. 242. Ibid, p. 78, para. 242. Ibid, p. 77, para. 242. Ibid. Ibid, p. 68, para. 218 and p. 70, para. 228.

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A number of small island States, namely Nauru, Tonga, Kiribati and the Cook Islands, have immediately taken advantage of this development and had their plans of work approved by the International Seabed Authority. 6

Request for an Advisory Opinion Submitted to the Tribunal by the Sub-Regional Fisheries Commission (Case No. 21)

A Facts and Proceedings The Sub-Regional Fisheries Commission (srfc) is a regional fisheries organization comprising seven States in West Africa: Cabo Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone. The Conference of Ministers of the srfc at its 14th session, held on 27 and 28 March 2013, adopted a resolution authorizing the Permanent Secretary of the srfc to submit a request for an advisory opinion to the Tribunal on four questions set out in the decision of the Conference.61 This decision was taken pursuant to article 33 of the 2012 Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Members of the srfc (hereinafter “the mca Convention”), authorizing the Conference to seek an advisory opinion of the Tribunal “on specific legal matters”. The request was subsequently filed with the Registry by the Permanent Secretary of the srfc on 28 March 2013 and was entered in the List of cases as Case No. 21.62 Conclusions Reached by the Tribunal in Response to the Questions Addressed to It The Tribunal considered the four questions submitted to it by the srfc Member States as outlined below. (1) The first question reads as follows: B

What are the obligations of the flag State in cases where illegal, unreported and unregulated (iuu) fishing activities are conducted within the Exclusive Economic Zone of third party States? In response to this question, the Tribunal observed that under the Convention primary responsibility for the conservation and management of living 61 62

Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc), supra. Ibid, p. 10, para. 5.

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resources in the exclusive economic zone rests with the coastal State. That responsibility extends to adopting such measures as may be necessary to ensure compliance with the laws and regulations promulgated by the coastal State in this regard and to prevent, deter and eliminate illegal, unreported and unregulated fishing (hereinafter “iuu fishing”).63 However, flag States also have the responsibility to ensure that vessels flying their flag do not conduct iuu fishing activities within the exclusive economic zones of the srfc Member States.64 In this regard the Tribunal drew attention to the findings of the Seabed Disputes Chamber in its Advisory Opinion referred to earlier in respect of the meaning of the expression “responsibility to ensure” and the interrelationship between the notions of obligations “of due diligence” and obligations “of conduct”, concluding that those clarifications were fully applicable in the case before it.65 The Tribunal pointed out that it follows from these clarifications that the flag State has “responsibility to ensure”, pursuant to articles 58, paragraph 3, and 62, paragraph 4, of the Convention, compliance by vessels flying its flag with the laws and regulations concerning conservation measures adopted by the coastal State; the flag State must meet this responsibility by taking the ­necessary measures, including those of enforcement, and by effectively exercising its jurisdiction and control in “administrative, technical and social matters” over ships flying its flag in accordance with article 94, paragraph 1, of the Convention.66 The Tribunal clarified that the obligation of a flag State “to ensure” is an obligation “of conduct”, not an obligation “of result”, and that this is a “due diligence obligation”. The latter means that the flag State has an obligation “to deploy adequate means, to exercise best possible efforts, to do the utmost” to achieve compliance by fishing vessels flying its flag with the requirement not to engage in iuu fishing in the exclusive economic zones of the srfc Member States.67 The Tribunal observed that, while the nature of the laws, regulations and measures to be adopted by each flag State is to be determined by it in accordance with its legal system, the flag State nevertheless is obliged to include in them enforcement mechanisms to monitor and secure compliance with these laws and regulations, and that sanctions applicable to involvement in iuu 63 64 65 66 67

Ibid, p. 33, para. 104. Ibid, pp. 36 and 37, para. 119. Ibid, p. 38, para. 125. Ibid, p. 39, para. 127. Ibid, p. 40, para. 129.

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f­ ishing activities must be sufficient to deter violations and to deprive offenders of the benefits accruing from their iuu fishing.68 (2) The second question reads as follows: To what extent shall the flag State be held liable for iuu fishing activities conducted by vessels sailing under its flag? Following the approach taken by the Seabed Disputes Chamber in Case No. 17, the Tribunal concluded that the liability of a flag State does not arise from the failure by vessels flying its flag to comply with the laws and regulations of the srfc Member States concerning iuu fishing activities, as such violation by its vessels is not per se attributable to the flag State, but from the failure by the flag State to meet its “due diligence” obligations concerning iuu fishing activities conducted by vessels flying its flag in the exclusive economic zones of the srfc Member States.69 The flag State, consequently, is not liable if it has taken all necessary and appropriate measures to comply with its “due diligence” obligations.70 On the question of whether a breach of “due diligence” obligations of the flag State can result from isolated iuu fishing activities or only from a repeated pattern of such activities, the Tribunal stressed that the frequency of iuu fishing activities is not relevant to the issue of whether there is a breach of “due diligence” obligations by a flag State.71 (3) The third question reads as follows: Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? In answering, the Tribunal first noted that the third question was not to be understood as relating to international organizations in general, but rather to the international organizations referred to in articles 305, paragraph 1 (f), and 306, and Annex ix to the Convention, to which their member States which are parties to the Convention have transferred competence over matters governed by

68 69 70 71

Ibid, p. 42, para. 138. Ibid, p. 44, para. 146. Ibid, p. 45, para. 148. Ibid, p. 45, para. 150.

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the Convention, in the present instance fisheries.72 The Tribunal further noted that the only such organization party to the Convention was the European Union, which, on 1st December 2009, succeeded and replaced the European Community.73 In light of such transfer of competence the Tribunal concluded that in cases where an international organization, such as the European Union, concludes a fisheries access agreement that provides for access by vessels flying the flag of its member States to fish in the exclusive economic zones of the srfc Member States, “the obligations of the flag State become the obligations of the international organization”. Consequently, the organization is obliged to ensure that vessels flying the flags of its member States comply with the fisheries laws and regulations of the srfc Member States and not engage in iuu fishing activities in the exclusive economic zones of those States.74 Failure by the international organization, such as the European Union, to comply with its “due diligence” obligations in this respect will give rise to its liability and the srfc Member States may consequently hold it liable for the violation of their fisheries laws and regulations.75 (4) The fourth question reads as follows: What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna? In answering the fourth question, the Tribunal first defined several of the terms used in it, such as “shared stocks”, “stocks of common interest” and “sustainable management”.76 The Tribunal noted that the term “shared stocks” had been defined by the srfc Member States and therefore applied to both situations described in paragraph 1 of article 63 of the Convention.77 It also observed that the ultimate goal to be achieved through sustainable management of fish stocks was “to conserve and develop them as a viable and sustainable resource”,78 construing this expression as meaning “conservation and development”, as referred to in the same section of the Convention.79 72 73 74 75 76 77 78 79

Ibid, p. 46, para. 157. Ibid, p. 47, para. 159. Ibid, p. 51, para. 172. Ibid, p. 51, para. 173. Ibid, see pp. 53 to 55, paras. 183 to 191. Ibid, p. 53, para. 186. Ibid, p. 55, para. 190. Ibid, p. 55, para. 191.

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The Tribunal then identified a number of obligations of the coastal State in ensuring the sustainable management of shared stocks. It underlined that, among others, coastal States have obligations: to cooperate with competent ­international organizations to ensure through proper conservation and management measures that the maintenance of the shared stocks in the exclusive economic zone is not endangered by over-exploitation; to “seek ... to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks”; and, in relation to tuna species, to cooperate directly or through the srfc with a view to ensuring conservation and promoting the objective of optimum utilization of such species in their exclusive economic zones.80 7 Conclusion The considerations above have demonstrated the extent to which the International Tribunal for the Law of the Sea, by exercising its jurisdiction over contentious cases, provisional measures requests, applications for prompt release of vessels and crew and, in particular, by giving advisory opinions, has advanced international law of the sea and thereby contributed to global ocean governance. As an international judicial body, the Tribunal’s impact on such a complex process as global governance is limited, of course. Nevertheless, the ­Tribunal could make important contributions to a number of pertinent issues by clarifying the understanding of key legal concepts and by developing the ­legal regime of the oceans established by the Convention. In this regard, the Tribunal is an integral element of the continuing process of adjusting this ­regime to new challenges in order to make it ever more responsive to the evolving needs of States Parties to the Convention and of the international society as a whole. 80

Ibid, pp. 58 and 59, para. 207.

Chapter 2

Contested Sovereignty over Land Territory and Maritime Zones Pierre-Emmanuel Dupont I

Introduction

It is undisputed that maritime rights derive from the coastal State’s sovereignty over the land, a principle commonly formulated as ‘the land dominates the sea’, that the icj has repeatedly affirmed since the North Sea Continental Shelf cases,1 where the Court made clear that [t]he land is the legal source of the power which a State may exercise over territorial extensions to seaward.2 The principle has aptly been paraphrased as ‘the domination of the territorial status and regime of the coast over the legal status and regime of the adjacent sea, including, where appropriate, the subjacent sea-bed and subsoil’.3 By virtue of this general principle of international law, it is clear that ‘[p]ossession of land territory and a coastline are prerequisites for claims to maritime jurisdiction’.4 But what if possession of land territory and the coastline is in 1 i.c.j. Reports 1969, p. 51, para. 96; see also Aegean Sea Continental SheIf, i.c.j. Reports 1978, p. 36, para. 86, and ), Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, icj Reports 2001, 40, para. 185 ; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, i.c.j. Reports 2012, p. 51, para. 140, where the icj again emphasized that “[t]he title of a State to the continental shelf and to the exclusive economic zone is based on the principle that the land dominates the sea”, and that “the land is the legal source of the power which a State may exercise over territorial extensions to seaward”. See generally Bing Bing Jia, ‘The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges’ (2014) 57 German Yearbook of International Law 63–93. 2 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, icj Reports 1969, 3, para. 96. 3 Bing Bing Jia, ‘The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges’ (2014) 57 German Yearbook of International Law 63–93, at 66. 4 C.H. Schofield, ‘Parting the waves: claims to maritime jurisdiction and the division of ocean space’ (2012) 1 (1) Penn State Journal of Law and International Affairs 40–58, at 45, fn. 29.

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d­ ispute? This chapter seeks to explore legal issues implicated by situations where the issue of maritime entitlements arises with respect to coastal territory (or islands) over which sovereignty is uncertain or disputed. Such cases are often referred to as ‘mixed disputes’ – i.e. disputes regarding both sovereignty over land territory (continental or insular) and maritime entitlements. It is commonplace to assume that any court or tribunal asked to adjudicate a maritime boundary dispute, which is also faced with a sovereignty dispute regarding the relevant coastal (or island) territory, is expected to resolve first the sovereignty issue.5 This is what the icj did, to quote but a few examples, in the cases of Eritrea/Yemen (1999), Qatar/Bahrain (2001), Cameroon/Nigeria (2002), and Nicaragua/Colombia (2012). The court or tribunal faced with a mixed dispute is expected to do so provided that (or assuming that) it has also jurisdiction over territorial sovereignty issues. Which is precisely not the case as far as the United Nations Convention on the Law of the Sea (unclos) alone is concerned. Actually unclos is not concerned with sovereignty over land territory, including islands, and assumes for the purposes of delimitation that the issue of sovereignty is resolved.6 Therefore unclos has no provisions governing the rights and obligations of competing claimants in disputed territory and the maritime zones to which the territory in question would create an entitlement, except perhaps the general provision in Article 301 of unclos concerning the abuse of rights.7 Moreover, unclos, just like the two 1958 5 See S. Fietta and R. Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation ­(Oxford: Oxford University Press, 2016), at 28, stressing ‘the need to resolve land boundary, island, or other sovereignty disputes related to land territory as a necessary precursor to any maritime delimitation exercise’. 6 See South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility, 29 October 2015, para. 8: ‘Conscious that the Convention is not concerned with territorial disputes, the Philippines has stated at all stages of this arbitration that it is not asking this Tribunal to rule on the territorial sovereignty aspect of its disputes with China’. In its official comments on that case, China consistently made the point that ‘[t]he essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention’. Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, 7 December 2014, para. 9. The Philippines was basically in agreement with this position, and stressed that it ‘does not seek in this arbitration a determination of which Party enjoys sovereignty over the islands claimed by both of them’. Notification and Statement of Claim of the Republic of the Philippines, 22 January 2013, para. 7. 7 R. Beckman, ‘Disputed Areas in the South China Sea’, in Tran Truong Thuy and Le Thuy Trang (eds), Power, Law, and Maritime Order in the South China Sea (Lanham: Lexington Books, 2015) 103–117, at 108.

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Conventions,8 regulates the rights of ‘coastal States’ (as well as other States).9 unclos addresses the rights of States in respect of maritime spaces,10 and does not seem to anticipate the rights of non-State entities.11 Therefore maritime rights under unclos vest in coastal States, and do not appear at first sight to apply to unrecognized/de facto States (or quasi-States) occupying coastal areas. However, as a matter of fact there are a number of current situations where the authorities of unrecognized/de facto States (or quasi-State entities) such as the self-declared Turkish Republic of Northern Cyprus (trnc or Northern Cyprus), Somaliland, Western Sahara, etc.,12 have claimed maritime zones, including sometimes an extended continental shelf. There are also various ­instances where disputed land territory is – at least purportedly, unilaterally – taken into consideration in the delimitation of maritime zones (and the ­drawing of baselines). In these contexts, what is the impact on maritime entitlements of the absence of uncontested sovereignty over the land? This chapter aims at reviewing contemporary State practice through an examination of 8

9

10

11 12

1958 Convention on the Territorial Sea and the Contiguous Zone (the “1958 Territorial Sea Convention”) and the 1958 Convention on the Continental Shelf (the “1958 Continental Shelf Convention”). The 1958 Territorial Sea Convention confirmed that the “sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea” (Article 1.1) and the 1958 Continental Shelf Convention provided that “[t]he coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources” (­Article 2.1). This is so even if the unclos was open for signature not only by States, but also by “territories which enjoy full internal self-government, recognized as such by the United ­Nations, but have not attained full independence in accordance with General Assembly resolution 1514(xv)” (unclos, Article 56.1(a)). In Article 1 of unclos, “States Parties” is defined as “States which have consented to be bound by this Convention and for which this Convention is in force.” The exclusive competence of States to make claims to maritime zones of jurisdiction is affirmed in Article 2 of unclos (on the territorial sea) providing that “[t]he sovereignty of a coastal State extends …”. Similar language is found as regards the other types of maritime zones covered by the Convention. See C.H. Schofield, ‘Parting the waves: claimes to maritime jurisdiction and the division of ocean space’ (2012) 1 (1) Penn State Journal of Law and International Affairs 40–58, at 45. See C. Claypoole, ‘Sovereign Rights for Non-Sovereigns: A Review of the Rights of NonState Entities to the Continental Shelf’, presentation at 6th ablos Conference, Monaco, October 2010. The use of certain geographic names or denomination of authorities or political bodies in the present chapter does not imply the expression of any opinion whatsoever from the author concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its borders.

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c­ ertain of these cases, in order to assess the relevance and the consequences of the ‘principle of domination’, and to discern what may be the basic applicable rules which should govern maritime delimitation and entitlements in such disputed zones. II

Some Unresolved Cases of Maritime Entitlements of Disputed Territory

A The Turkish Republic of Northern Cyprus The Turkish Republic of Northern Cyprus (trnc) and Turkey (the only country that recognizes it) entered into a purported continental shelf delimitation agreement in 2011.13 The agreement, based on a delimitation method which significantly departs from the ‘median line’ in favor of Turkey, was not included in the Law of the Sea Bulletin, despite a request by Turkey to that effect.14 ­After signing the delimitation agreement, the Turkish Cypriot side underlined that the Agreement constituted a ‘preventive measure’ aimed at dissuading the Greek Cypriot side from pursuing what it calls a ‘fait accompli’ – i.e. the fact that the Republic of Cyprus had entered into bilateral delimitations with Egypt (2003), Lebanon (2007) and Israel (2010). The Republic of Cyprus, for its part, has argued that ‘any “agreements” with this illegal entity [the trnc] are also legally invalid ab initio’: 13

14

Türkiye Cumhuriyeti ile Kuzey Kıbrıs Türk Cumhuriyeti Arasında Akdeniz’de Kıta Sahanlığı Sınırlandırılması Hakkında Anlaşma [Agreement between the Republic of Turkey and the Turkish Republic of Northern Cyprus on the Delimitation of the Continental Shelf in the Mediterranean], 21 September 2011. See Letter dated 25 April 2014 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General (UN Doc. A/68/857), and Annex: Geographical coordinates of the Turkish continental shelf between the longitudes of 32-­16-18.000E and 34-48-51.634E in the eastern Mediterranean, as established by the Continental Shelf Delimitation Agreement between Turkey and the Turkish Republic of Northern Cyprus (with map). Letter dated 19 May 2014 from the Permanent Agreement Between the Government of the Republic of Turkey and the Government of the Turkish Republic of Northern Cyprus on the Delimitation of the Continental Shelf at the Mediterranean Sea], 21 September 2011. See Letter dated 25 April 2014 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General (UN Doc. A/68/857), and Annex: Geographical coordinates of the Turkish continental shelf between the longitudes of 32-16-18.000E and 34-48-51.634E in the eastern Mediterranean, as established by the Continental Shelf Delimitation Agreement between Turkey and the Turkish Republic of Northern Cyprus (with map).

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In this particular case, the ‘delimitation agreement’ referred to by Turkey in its letter, as well as in its note verbale of 10 April 2014, is completely null and void and stands in flagrant violation of international law. Moreover, the coordinates listed in those communications as defining the alleged limits of Turkey’s continental shelf in the maritime area between the north coast of the Republic of Cyprus and the south coast of the Republic of Turkey have no validity whatsoever under international law or the Convention.15 This view is shared by some commentators, who argue that in light of the relevant Security Council resolutions (including Security Council Resolution 541 of 1983) which call for collective non-recognition of the trnc, the authorities of the latter lack the capacity to enter into international agreements opposable to third States, and also lack the capacity to assert sovereign rights or jurisdiction at sea.16 Assuming that this is a legally correct view, it remains to be seen how this may be reconciled with the fact that the entitlement to a continental shelf is deemed to exist ipso facto and ab initio. That being mentioned, Turkey has stressed that its agreement with the trnc ‘does not in any way affect the legitimate, equal and inherent rights of the Turkish Cypriot people over the whole continental shelf of the island’.17 One could perhaps argue that the same may conversely be said of the rights of Greek Cypriots over the continental shelf of Cyprus as a whole. In light of this, and of the assertion by Turkey that the continental shelf agreement is a ‘preventive measure’, it may be thought that the continental shelf agreement of 2011 assumes at most, in the view of the parties, a provisional nature. This intricate situation leaves unresolved the fate of the various blocks of hydrocarbons concessions, especially those granted by the trnc to the Turkish Petroleum Company (tpao) in the wake of the signing of the Turkey-trnc delimitation agreement.18 15 16

17 18

Letter dated 19 May 2014 from the Permanent Representative of Cyprus to the United ­ ations addressed to the Secretary-General (UN Doc. A/68/883), 20 May 2014. N See Erik Franckx and Marco Benatar, ‘Turkish Objections to Exclusive Economic Zone Agreements Concluded by Cyprus’, in Photini Pazartzis and Maria Gavouneli (eds), Reconceptualising the Rule of Law in Global Governance, Resources, Investment and Trade (Oxford and Portland: Hart, 2016) 217–242, at 233–234. Annex to the letter dated 30 May 2014 from the Chargé d’affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the Secretary-General (A/68/902), 5 June 2014. See, e.g., Ministry of Foreign Affairs of Turkey, Press Release No. 43 Regarding the Second International Tender for Off-Shore Hydrocarbon Exploration Called by the Greek Cypriot Administration (gca) (15 February 2012).

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B Somaliland Another case of problematic maritime entitlements generated by uncertain coastal sovereignty concerns Somaliland.19 On 30 June 2014, Somalia issued a Proclamation claiming an exclusive economic zone (eez) extending to 200 nautical miles from normal baselines. The same day, Somalia deposited with the UN Division of Ocean Affairs and the Law of the Sea a list of co-ordinates defining the outer limits of its eez. In reaction, the Somaliland Ministry of Foreign Affairs lodged, on 23 July 2014, a formal protest with the UN SecretaryGeneral against Somalia’s declaration, which it sees as a violation of Somaliland’s sovereignty. A Ministry Press Release dated 7 August 2014 stated that Somaliland ‘emphatically rejects, opposes and will not recognise these declarations by the Republic of Somalia to the extent that they purport to include or affect the waters, continental shelf and other maritime entitlements of the Republic of Somaliland’ and that The Republic of Somaliland remains supportive of all efforts to improve regional co-ordination and promote economic development in the Horn of Africa. However, Somaliland’s co-operation and contributions to such efforts have always been on the understanding that Somaliland will continue to exercise sovereignty and sovereign rights with respect to the ­waters and continental shelf adjacent to the Republic of Somaliland’s territory in accordance with international law. Somalia cannot and does not exercise jurisdiction or physical control over the waters and continental shelf off the coast of Somaliland.20 More recently, in February 2017, the Government of the Republic of S­ omaliland sent a letter to the UN Secretary-General, claiming maritime rights including a 200-mile eez. Somaliland stressed that this move would ‘enable Somaliland to better police maritime territory and combat crime, including in relation to customs, immigration, and people and arms trafficking; protect natural resources, such as fisheries and oil and gas deposits belonging to the people of Somaliland; and support international efforts to promote peace and security in

19

20

Somaliland reclaimed its independence from Somalia in May 1991 and has since then functioned de facto as a separate entity. It lacks international recognition, although it has entered into unofficial relations with a number of countries. For an assessment of Somaliland’s claim to statehood, see, e.g., A.K. Eggers, ‘When is a State a State? The Case for Recognition of Somaliland’ (2007) 30 Boston College International & Comparative Law Review 211–222. Somaliland Ministry of Foreign Affairs, Press Release, 7 August 2014.

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the Gulf of Aden’.21 The Foreign Ministry of Somaliland announced that it will submit in due course the geographical coordinates and a chart of its maritime zones. As in the case of the trnc, the dispute has been exacerbated by the purported granting of hydrocarbon licenses in the disputed maritime areas. Tensions have indeed been reported between Somaliland authorities and the Federal Government of Somalia (fgs) after the former announced in 2009 a bid round for both onshore and offshore concession areas.22 C Western Sahara On 5 March 2016, the government of the Saharawi Arab Democratic Republic (sadr), led by the Polisario Front and claiming sovereignty over Western Sahara, deposited with the UN Secretary-General the coordinates and charts of its precise eez claims, taking advantage of a visit of then UN Secretary-General Ban Ki-Moon to Western Sahara: The coordinates and charts showing the eez outer limits will now be communicated to all UN member states trough their Permanent Missions in New York […] In clarifying the outer limits of Western Sahara’s eez, the sadr Government made clear that it is not willing to tolerate the illegal exploitation of its natural resources, including rich offshore fisheries resources, nor ongoing efforts by Morocco and complicit foreign companies to explore the seabed resources in Western Sahara’s waters.23 The eez claim, which extends 200 nautical miles offshore of the Western Saharan coast, was initially deposited on 22 January 2009 without precisely defining maritime borders with Morocco, Spain (Canary Islands), and Mauritania. The sadr had indicated at that time that where its maritime entitlements overlap with those of its neighbours, it will negotiate and conclude agreements delimiting maritime boundaries in accordance with international law. The sadr stated that it considers illegal any activities related to the exploration or exploitation of the marine living and non-living resources of Western ­Sahara conducted without its express authorization.24 The sadr has also purported to grant oil and gas exploration and exploitation licences on blocks of 21 22 23 24

Somaliland Ministry of Foreign Affairs, Press Release, ‘Somaliland asserts sovereign rights, maritime boundaries for better policing’, 12 February 2017. See C. Claypoole, ‘Sovereign Rights for Non-Sovereigns’, supra note 11. Front Polisario, Media Release, ‘Western Sahara declares the Outer Limits of its 200-mile Exclusive Economic Zone (eez)’, 5 March 2016. Letter dated 8 April 2009 from the representative of the Frente Polisario addressed to the President of the Security Council, Annex to the letter dated 9 April 2009 from the

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its ­maritime zones, and has voiced its opposition to the granting by Morocco’s state petroleum agency of licences on blocks seaward of Western Sahara. The authorities of Western Sahara express the view that, in light of the findings of the icj, which in its 1975 advisory opinion rejected Morocco and Mauritania’s claims to territorial sovereignty over Western Sahara,25 the waters off Western Sahara do not fall under the jurisdiction of Morocco. These maritime claims have led the sadr to take legal steps to challenge the application of an EU-Morocco agreement on trade liberalization (encompassing fisheries) of 201026 before EU jurisdictions, on the grounds that it is unlawful for Morocco to allow access by EU vessels to the fisheries resources off the coast of Western Sahara. On 10 December 2015, the General Court of the EU ruled in favor of the Front Polisario: Given the fact, inter alia, that the sovereignty of the Kingdom of M ­ orocco over Western Sahara is not recognised by the European Union or its Member States, or more generally by the UN, and the absence of any international mandate capable of justifying Moroccan presence on that territory, the Council, in the examination of all the relevant facts of the present case, with a view to exercising its wide discretion as to whether or not to conclude an agreement with the Kingdom of Morocco which may also apply to Western Sahara, should have satisfied itself that there was no evidence of an exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights. The Council cannot merely conclude that it is for the Kingdom of Morocco to ensure that no exploitation of that nature takes place.27 A year later, the Grand Chamber of the cjeu overturned the decision of the EU General Court on procedural grounds, but in doing so it confirmed that

25 26

27

­ ermanent Representative of Namibia to the United Nations addressed to the SecretaryP General (A/63/871–S/2009/198), 13 April 2009. Western Sahara, Advisory Opinion, i.c.j. Reports 1975, p. 12 at p. 67, para. 158. Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products (OJ 2012 L 241, p 2, 8 March 2012) (the “2010 Agreement”). The 2010 Agreement builds on a prior free-trade bilateral agreement: the 2000 Association Agreement between the EU and Morocco (OJ 1/70/2, 18 March 2000) (the “2000 Agreement”). General Court of the EU, Case T-512/12, Front populaire pour la libération de la saguiael-hamra et du rio de oro (Front Polisario) v Council of the European Union, Judgment of 10 December 2015, para. 241.

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neither the 2000 Agreement nor the 2010 Agreement apply to the territory of Western Sahara. The Grand Chamber held that the principles of interpretation reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, taken together with the customary principle of self-determination, precluded an interpretation of the ‘territory of the Kingdom of Morocco’ as including Western Sahara.28 It therefore concluded that the General Court had erred in finding that the Agreements applied to the territory of Western Sahara, and as a consequence, the Front Polisario did not have standing to seek annulment of the Council decision approving the 2010 Agreement.29 Thus, formally the claim by the Front Polisario was dismissed, but in substance the Grand Chamber concluded that the EU trade Agreements are not applicable to the territory of Western Sahara. The potential wide-ranging implications of this ruling will be addressed in the tentative conclusions of this chapter. D Claims of Straight Baselines from Disputed Territory There are many instances around the world where States have claimed straight baselines from disputed coastal territory, or disputed islands. It may be useful to quote a few examples. The Hala’ib Triangle is an area of land with a coastal facade on the Red Sea, which lies between Egypt and Sudan. Both countries claim sovereignty over the area. Since the mid-1990s, Egypt has exercised de facto administration of the area, following the deployment of Egyptian military units there in the 1990s. Egypt has claimed straight baselines off the coast of Hala’ib Triangle,30 which is controversial, irrespective of the issue of sovereignty over some maritime features off the coast. This claim may in particular impact the delimitation with the opposite coast of Saudi Arabia. In reaction, the Sudan claimed baselines off the Hala’ib Triangle in March 2017,31 and affirmed its ‘rejection and non-recognition’ of the Egyptian legislation of 1990 ‘insofar as it concerns Sudanese maritime borders north of the 22nd parallel and the maritime coordinates claimed by Egypt in paragraphs 50 to 56 to be within its Red Sea maritime borders’, explaining that: 28 29 30

31

Case C-106/16P, Council of the European Union v Front Polisario, 21 December 2016, paras 88–92. Ibid., paras 126, 131. Decree of the President of the Arab Republic of Egypt No. 27 (1990) concerning the baselines of the maritime areas of the Arab Republic of Egypt, 9 January 1990 ; text, analysis and maps in US Department of State, Bureau of Oceans and International Environment and Scientific Affairs, Straight Baselines Claims: Albania and Egypt [Limits in the Seas, No. 116] (1994) 6. See Republican Decree No. 148 of 2 March 2017 regarding the baselines used for measuring the maritime areas of the Republic of the Sudan.

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The coordinates above are within the maritime borders of the Hala’ib Triangle, which has been under Egyptian military occupation since 1995. Thus they fall within the Red Sea maritime areas of the Republic of the Sudan. […] The Sudan has written to the Security Council regarding this matter every year since 1958, and it did so again on 5 January 2017 in order to reaffirm its rejection of the Egyptian military occupation of the Sudanese Hala’ib Triangle and its maritime borders, and any actions taken by the Egyptian Government on the basis of the current situation that are prejudicial to the sovereignty of the Sudan over the Hala’ib Triangle and its maritime borders.32 In Asia, there is also some State practice to incorporate disputed territory (or islands) into (straight) baselines. China previously refrained from claiming straight baselines from disputed islands, but appears to have changed its practice and has declared straight baselines around the Paracel Islands, which are claimed by China/Taiwan and Vietnam. It has done the same around the Senkaku (Diaoyu) islands, which are disputed between Japan and China/­ Taiwan. Cambodia had previously acted in the same way with respect to certain ­disputed islands in the Gulf of Thailand.33 E Disputed Islands in the Western Indian Ocean The last example in this brief (and non-exhaustive) overview of certain problematic sovereignty situations concerns a number of insular features in the Western Indian Ocean, which are subject to conflicting sovereignty claims. France claims the features known as the ‘Scattered Islands’ (Îles Éparses) of the Indian Ocean (Tromelin, Juan de Nova, Glorioso and Europa islands, the Bassas da India atoll, and the feature known as Banc du Geyser), and rights over maritime zones generated by these features. The case of Tromelin is characteristic: this small feature is claimed by France, which declared its eez in 1976,34 32 33

34

Statement issued by the Ministry of Foreign Affairs of the Republic of the Sudan, 3 March 2017, reproduced in the Communication from the Permanent Representative of Sudan transmitted to the UN Secretary-General, 7 April 2017. See C.H. Schofield, and M. Tan-Mullins (2008) ‘Claims, Conflicts and Cooperation in the Gulf of Thailand’, (2008) 22 Ocean Yearbook 75–116, at 84–85 and 91–92. See also S. Bateman and C.H. Schofield, ‘State Practice regarding Straight Baselines in East Asia. Legal, Technical and Political Issues in a Changing Environment’, Presentation at 5th ablos Conference, Monaco, October 2008. French Decree No. 78–146 of 3 February 1978, establishing, pursuant to the Act of 16 July 1976, an economic zone off the coasts of the islands of Tromelin, Glorieuses, Juan de

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but also by Mauritius since its independence in 1976, and reportedly also by Madagascar and the Seychelles.35 For example, the Constitution of Mauritius provides that Tromelin is part of Mauritian territory; and Mauritius deposited in 2008 with the UN Department for Ocean Affairs and the Law of the Sea, pursuant to Articles 16 and 47 of unclos, charts and lists of geographical coordinates of basepoints and baselines for the maritime zones of Mauritius, which include basepoints around Tromelin.36 III

Recent Cases Submitted to Third-party Dispute Settlement

As previously mentioned, it is widely accepted that the unclos does not deal with questions of sovereignty and other rights over land territory (including islands and maritime features in general). As a consequence, disputes concerning these questions are not subject to the jurisdiction ratione materiae of courts and tribunals functioning under unclos. As stated by Oude Elferink, disputes concurrently involving a dispute concerning sovereignty or other rights over territory appear to be excluded from the reach of the compulsory dispute settlement provisions of the convention.37 Of course, it remains that ‘mixed’ disputes may be submitted to an international court or tribunal by means of a special agreement, where both parties agree to ask the court or tribunal to resolve both the sovereignty dispute and the concurrent maritime delimitation.38 The icj also had the occasion to clarify that a claim to sovereignty over insular features may be considered as ‘implicit

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38

Nova, Europa and Bassas da India, Law of the Sea Bulletin, No. 71 [2010] at 16. See V. Prescott, ‘Indian Ocean Boundaries’, in D.A. Colson and R.W. Smith (eds), International Maritime Boundaries, Vol. v (Leiden/Boston: Martinus Nijhoff, 2005), 3453, at 3462–3463. See Maritime Zone Notification M.Z.N.63.2008.LOS of 27 June 2008. A.G. Oude Elferink, ‘The Islands in the South China Sea: How Does Their Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts?’ (2001) 32 Ocean Development & International Law 169, 172. See also P.C. Irwin, ‘Settlement of Maritime Boundary Disputes: An Analysis of the Law of the Sea Negotiations’ (1980) 8 Ocean Development and International Law 105, 114; A. Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46 iclq 37, at 49–50. I. Buga, ‘Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals’ (2012) 27 International Journal of Marine and Coastal Law 59–95, at 61.

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in and aris[ing] directly out of the [maritime delimitation]’ in the case of the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea. In that case, the issue of sovereignty arose with respect to certain features (banks, reefs, and cays) located off the mainland coasts of Honduras and Nicaragua. Nicaragua in its application to the Court did not mention these features, but it subsequently claimed sovereignty over them during the proceedings.39 The Court found the new claim of sovereignty to be admissible as ‘implicit in’ and ‘aris[ing] directly out’ of the maritime delimitation which was the subject-matter of Nicaragua’s application to the Court.40 The present section will examine recent cases of mixed disputes (where sovereignty over islands or maritime disputes was at issue alongside maritime claims) submitted to unclos dispute settlement. A The Chagos Arbitration In the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Mauritius opposed the establishment by the United Kingdom of a marine protected area (mpa) around the Chagos Islands, which are currently administered by the UK as part of the ‘British Indian Ocean Territory’ but claimed by Mauritius. Mauritius argued that the establishment of the mpa was in violation of unclos ‘and other rules of international law not incompatible with the 1982 Convention’.41 The parties discussed at length in these proceedings the issue whether jurisdiction over issues of land sovereignty was, or was not, contemplated by the drafters of unclos.42 In substance, the United Kingdom objected to the 39

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007, p. 659, paras. 105–107, 127. 40 Ibid., paras. 114–115. 41 Mauritius Notification and Statement of Claim, 20 December 2010, para. 1. 42 See Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, paras. 213 ff. See also Reply of Mauritius, vol. i (18 November 2013), paras. 7.18 ff. (discussing ‘Jurisdiction over issues of sovereignty under Part xv’ of unclos) ; Counter-­Memorial of the United Kingdom (15 July 2013), esp. at paras. 4.42 ff (denying that a court or tribunal has jurisdiction under Part xv ‘to resolve all or any disputes over sovereignty to determine whether State A or State B (or indeed State C) is indeed the “coastal State”’. The UK stressed that, following Mauritius’ line of argument on that point would amount to accepting that ‘unclos has indeed created a broad compulsory jurisdiction, one that is unparalleled in international law, to determine an issue of the most central importance to States, i.e. territorial sovereignty’ (ibid., at para. 4.42). For an account of the discussion during the unclos negotiations on relevant jurisdictional provisions, see S. Rosenne and L.B. Sohn (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. v (Dordrecht: Martinus Nijhoff, 1989), 88, para. 297.1.

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­ ribunal’s jurisdiction on the grounds that questions of sovereignty lied ‘at T the heart of the current claim’43 and that it was ‘self-evident […] that a dispute concerning sovereignty over land territory is not a dispute concerning the interpretation or application of the [unclos]’.44 Mauritius, while elaborating in its submissions on the substance of its claim of sovereignty over the Chagos (based on alleged implied recognition by the UK, the right of self-­ determination and other arguments), denied that it was attempting to ‘force a sovereignty dispute into the confines of the Convention’. Instead, it stressed it was ‘inviting the Tribunal to determine whether or not the UK is a “coastal State” within the meaning of the Convention, so that it is entitled to create the “mpa” it has purported to establish’.45 In its Award of 18 March 2015, the Tribunal held in substance that Mauritius’ claim that the UK did not qualify as a ‘coastal state’ in the meaning of unclos as regards the Chagos Islands concerned in fact the question of sovereignty over the Chagos, which was not a matter concerning the interpretation or application of unclos, and therefore that it did not have jurisdiction over that aspect of the dispute. The Tribunal held that, while ‘the negotiating records of the Convention provide no explicit answer’ regarding jurisdiction over territorial sovereignty under Part xv of unclos, ‘the simple explanation for the lack of attention to this question is that none of the Conference participants expected that a long-standing dispute over territorial sovereignty would ever be considered to be a dispute “concerning the interpretation or application of the Convention.”’46 The Tribunal held that, given the inherent sensitivity of States to questions of territorial sovereignty, and the distrust vis-à-vis compulsory dispute settlement that was reflected in the Convention’s negotiations, had the drafters intended that such [territorial sovereignty] claims could be presented as disputes ‘concerning the interpretation or application of the Convention’, the Convention would have included an opt-out facility for States not wishing their sovereignty claims to be adjudicated, just as one sees in Article 298(1)(a)(i) in relation to maritime delimitation disputes.47 43 44 45 46 47

Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 170. Ibid., para. 170. Ibid., para. 176. Ibid., para. 215. Ibid., para. 217.

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The tribunal conceded that ‘an a contrario reading of Article 298(1)(a)(i) supports the proposition that an issue of land sovereignty might be within the jurisdiction of a Part xv court or tribunal if it were genuinely ancillary to a dispute over a maritime boundary or a claim of historic title’.48 This was not, however, the case of the dispute brought by Mauritius: In the Tribunal’s view, to read Article 298(1)(a)(i) as a warrant to assume jurisdiction over matters of land sovereignty on the pretext that the Convention makes use of the term ‘coastal State’ would do violence to the intent of the drafters of the Convention to craft a balanced text and to respect the manifest sensitivity of States to the compulsory settlement of disputes relating to sovereign rights and maritime territory. Such sensitivities arise to an even greater degree in relation to land territory.49 The Tribunal did not, however, categorically exclude ‘that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention’, finding: [t]hat, however, is not this case, and the Tribunal therefore has no need to rule upon the issue. The Parties’ dispute regarding sovereignty over the Chagos Archipelago does not concern the interpretation or application of the Convention. Accordingly, the Tribunal finds itself without jurisdiction to address Mauritius’ First Submission.50 B The South China Sea Arbitration In its Position Paper on the South China Sea Arbitration, China, which strongly emphasized that issues of territorial sovereignty fall ‘beyond the purview of’ unclos,51 had claimed that the dispute raised by the Philippines was actually one of sovereignty because ‘[t]o decide upon any of the Philippines’ claims, the Arbitral Tribunal would inevitably have to determine, directly or indirectly, the sovereignty over both the maritime features in question and other maritime features in the South China Sea’.52 China also argued ‘that the nature and 48 49 50 51 52

Ibid., para. 218. Ibid., para. 219. Ibid., para. 221. Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, 7 December 2014, para. 13. Ibid., para. 29.

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maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty’.53 It expressed the view that ‘without determining the sovereignty over a maritime feature, it is impossible to decide whether maritime claims based on that feature are consistent with the Convention’.54 China thus made a comprehensive argument about sovereignty over the land as a prerequisite to the assertion of maritime entitlements: The holder of the entitlements to an exclusive economic zone (‘eez’) and a continental shelf under the Convention is the coastal State with sovereignty over relevant land territory. When not subject to State sovereignty, a maritime feature per se possesses no maritime rights or entitlements whatsoever. In other words, only the State having sovereignty over a maritime feature is entitled under the Convention to claim any maritime rights based on that feature. Only after a State’s sovereignty over a maritime feature has been determined and the State has made maritime claims in respect thereof, could there arise a dispute concerning the interpretation or application of the Convention, if another State questions the compatibility of those claims with the Convention or makes overlapping claims. If the sovereignty over a maritime feature is undecided, there cannot be a concrete and real dispute for arbitration as to whether or not the maritime claims of a State based on such a feature are compatible with the Convention.55 China thus contended that the Philippines ‘is putting the cart before the horse by requesting the Arbitral Tribunal to determine, even before the matter of sovereignty is dealt with, the issue of compatibility of China’s maritime claims with the Convention. In relevant cases, no international judicial or arbitral body has ever applied the Convention to determine the maritime rights derived from a maritime feature before sovereignty over that feature is decided’.56 The Philippines opposed that line of argument and cited arbitral awards as support for the conclusion that sovereignty claims over maritime features raise no impediment to the determination of maritime entitlements.57 53 Ibid., para. 15. 54 Ibid., para. 16. 55 Ibid., para. 17. 56 Ibid., para. 18. 57 See South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility, 29 October 2015, para. 141.

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In its award on jurisdiction in the South China Sea Arbitration, the arbitral tribunal disregarded China’s objections based on the need to determine sovereignty issues before pronouncing on maritime entitlements: The Tribunal might consider that the Philippines’ Submissions could be understood to relate to sovereignty if it were convinced that either (a) the resolution of the Philippines’ claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly; or (b) the actual objective of the Philippines’ claims was to advance its position in the Parties’ dispute over sovereignty.58 Neither of these situations, however, is the case. The Philippines has not asked the Tribunal to rule on sovereignty and, indeed, has expressly and repeatedly requested that the Tribunal refrain from so doing. The Tribunal likewise does not see that any of the Philippines’ Submissions require an implicit determination of sovereignty.59 In its final award, the tribunal held that nothing in unclos prevented it ‘from recognising the existence of an exclusive economic zone or continental shelf, or of addressing the legal consequence of such zones, in an area where the entitlements of the State claiming an exclusive economic zone or continental shelf are not overlapped by the entitlements of any other State’. Indeed, in the tribunal’s view: Doing so does not implicate the delimitation of maritime boundaries or the exclusion from jurisdiction in Article 298(1)(a)(i). In the absence of any possible overlap, there is quite literally nothing to delimit.60 Consequently, in its Award on the merits, the arbitral tribunal took for itself to pronounce inter alia on the legal status under unclos of various disputed insular features. It found that some high-tide features in dispute were ‘rocks that cannot sustain human habitation or economic life of their own’ that accordingly ‘shall have no exclusive economic zone or continental shelf’, while other features qualified as low-tide elevations generating no maritime zones of their own.61 Accordingly, two such features (Mischief Reef and Second 58 Ibid., para. 153. 59 Ibid., para. 153. 60 See South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award, 12 July 2016, paras. 629. 61 Ibid., paras. 643 ff.

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Thomas Shoal) were found incapable of generating entitlement by China to any maritime zones drawn from these features. Therefore, since those features were located within 200 nautical miles of the Philippines’ coast, and ‘in an area that is not overlapped by the entitlements generated by any maritime feature claimed by China’, the Tribunal ruled that as between the Philippines and China, Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the Philippines.62 C The Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) Case In the wake of Crimea’s integration into the Russian Federation in 2014, Ukraine instituted in late 2016 arbitration proceedings against the Russian Federation under the unclos ‘to vindicate its rights as the coastal state in maritime zones adjacent to Crimea in the Black Sea, Sea of Azov, and Kerch Strait’. Ukraine’s has invoked inter alia its ‘rights to the natural resources offshore Crimea which belong to the Ukrainian people’.63 At the time of writing, it appears likely that, given the official title now given to the case, framed in terms of ‘coastal states rights’, the arguments will largely involve reflections of the Chagos and the South China Sea cases.64 It remains to be seen whether Ukraine will succeed in overcoming the jurisdictional obstacle related to the fact that disputes ­concerning territorial sovereignty are excluded from the reach of dispute settlement provisions of unclos. Indeed, according to publicly available information at this stage, Ukraine, like Mauritius, is basically arguing that since it has sovereignty over Crimea (i.e., since it is the relevant ‘coastal state’ in the meaning of unclos), Russia has interfered with its rights under unclos. As it has been noted, if the arbitral tribunal ‘follows the approach of the tribunal Mauritius v. United Kingdom or that of the Philippines v. China tribunal, it will likely find that it does not have jurisdiction over the dispute’.65

62 63 64 65

Ibid., para. 647. See Statement of the Ministry of Foreign Affairs of Ukraine on the Initiation of Arbitration against the Russian Federation under the United Nations Convention on the Law of the Sea, 14 September 2016. Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Press Release (‘First Procedural Meeting in Arbitration under Law of the Sea Convention’), 22 May 2017. P. Tzeng, ‘Ukraine v. Russia and Philippines v. China: Jurisdiction and Legitimacy’ (2018) 46 Denver Journal of International Law and Policy (forthcoming).

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What Rules May be Inferred from These Cases?

The cases examined above are but a few illustrative examples of cases of contentious situations of mixed disputes, either submitted to third-party dispute settlement or not (yet). From the analysis of these cases, in light of relevant principles of international law, a few tentative propositions may be formulated: 1. The resolution of territorial disputes is, and is bound to remain generally, a condition precedent to the delimitation of maritime zones potentially generated by such – continental or insular – coastal territories. For example, in the icj case of the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, where Nicaragua at a late stage of the proceedings formulated claims of sovereignty over some insular features,66 and the icj found the new claim of sovereignty to be admissible,67 the Court formulated that its maritime boundary decision on should proceed from a prior determination of sovereignty over those features: To draw a single maritime boundary line in an area of the Caribbean Sea where a number of islands and rocks are located the Court would have to consider what influence these maritime features might have on the course of that line. To plot that line the Court would first have to determine which State has sovereignty over the islands and rocks in the disputed area. The Court is bound to do so whether or not a formal claim has been made in this respect. Thus the claim relating to sovereignty is implicit in and arises directly out of the question which is the subject-matter of Nicaragua’s Application, namely the delimitation of the disputed areas of the territorial sea, continental shelf and exclusive economic zone.68 Given the dual nature of the present case — a maritime delimitation and a determination of sovereignty over islands situated in the maritime area in dispute — and taking into account the principle that the ‘land dominates the sea’ […], the legal nature of the land features in the disputed area must be assessed at the outset.69 2. However, there seems to be an emerging line of jurisprudence according to which, depending on the formulation of the claims by the parties, 66

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007, p. 659, paras. 105–107, 127. 67 See ibid., paras. 114–115. 68 Ibid., para. 114. 69 Ibid., para. 135.

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a court or tribunal functioning under unclos may satisfy itself that it has competence to pronounce on the status of a maritime feature in the meaning of Article 121 of unclos, without ruling on sovereignty issues over that feature, nor to delimit boundaries drawn from that features, but only with a view to determining whether such feature qualifies as an island, a rock or a low-tide elevation, and consequently if it is capable of generating maritime entitlements, and if so what these entitlements are. In other words, the settlement of the sovereignty issue may possibly be disjoined from the issue of maritime entitlements, as the South China Sea Arbitration case when the tribunal pronounced on maritime entitlements of various features of the South China sea without addressing the sovereignty issue over those features. This stresses, again, the importance of the formulation of claims by the parties appearing before an international court or tribunal, and the controversial issue of the extent to which a court or tribunal should defer to such formulation of claims by the parties in its characterization of the dispute – and its resolution. The rules and principles of customary international law on the acquisition and loss of territory, on self-determination and on State recognition (and non-recognition), will of course be relevant to an assessment of the validity or opposability of maritime claims of unrecognized States or quasi-States. In particular, the rule of jus cogens of unlawfulness of change of territorial status by the use of force may be relevant in certain situations.70 Some guidance may also be drawn in particular from the rule according to which transfer of title to territory automatically entails transfer of the maritime territory ‘forming the inseparable appurtenance of this land territory’, as was affirmed by the arbitral tribunal in the Grisbådarna Case (Norway v Sweden): Whereas this opinion conforms with the fundamental principles of the law of nations, both ancient and modern, according to which maritime territory is an essential appurtenance of land territory, from which it follows that at the time when, in 1658, the land territory called the Bohuslän was ceded to Sweden, the radius of ­maritime

See Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, unga Res. 2625 (xxv), 24 October 1970: ‘The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal’.

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territory forming the inseparable appurtenance of this land territory must have automatically formed a part of that cession.71 This principle was also affirmed by the court in the Beagle Channel Arbitration: the Court considers it as amounting to an overriding general principle of law that, in the absence of express provision to the contrary, an attribution of territory must ipso facto carry with it the waters appurtenant to the territory attributed.72 The right to assert jurisdiction over maritime zones pertains as a matter of principle to the ‘coastal State’, conceived primarily as a ‘sovereign’ State. Notably, rights to conduct exploration and exploitation activities on the natural resources found in the continental shelf pertains to coastal (sovereign) States. As the icj put it in the Aegean Sea Continental Shelf case, ‘it is solely by virtue of the coastal State’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law’.73 In other words, ‘the rights pertaining to the continental shelf [are] derivative of the sovereignty of the coastal State over the coast’.74 To mention just another notable consequence (among others) of this rule, it seems that the right to build artificial islands and undertake land reclamation from coastal or insular territory, as regulated by international law, should benefit only to coastal (sovereign) States. The settlement of coastal territory sovereignty disputes will in some cases have an influence on, or even determine, the location of the land boundary terminus between States with adjacent coasts, from which the maritime delimitation line is to be drawn. The settlement of the issue of the location of such land boundary terminus will therefore be a precondition to the maritime delimitation process. Such a nexus between The Grisbådarna Case (Norway v Sweden), Award, 23 October 1909, (1909) xi riaa 155. Dispute between Argentina and Chile concerning the Beagle Channel (Argentina v Chile), 18 February 1977, riaa Vol. xxi, p. 53, para. 107. Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction, Judgment of 19 December 1978, icj Reports 1978, 3, para. 86. Bing Bing Jia, ‘The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges’ (2014) 57 German Yearbook of International Law 63–93, at 75. See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, icj Reports 1969, 3, para. 19: ‘[T]he rights the coastal State has in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso jure and ab initio, by virtue of its sovereignty over the land’ (emphasis added).

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75

76

77 78

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the land and maritime aspects of delimitation seems to be present, for example, in the outstanding maritime delimitation issue between Israel and Lebanon, another intricate issue in all respects.75 In June 2011, Lebanon made an official objection to the agreement signed by the Republic of Cyprus and Israel, in which they delimited their respective eezs. ­Referring to disagreements regarding the course of the land boundary (the so-called ‘Blue Line’ established under the auspices of the UN), Lebanon asserted that since it ‘considers Israel to be an occupying Power, the legal provisions and regulations must be applied, together with the international resolutions that regard as illegal any measure taken by an occupying Power with a view to seizing, administering or annexing part of the territory that it occupies’.76 More specifically, Lebanon affirmed on that occasion, having reviewed the coordinates deposited by Israel, ‘that point 31 flagrantly violates the principles and rules of international law and constitutes an assault on Lebanese sovereignty. That point is north of the internationally recognized land borders of Lebanon that are set forth in the Paulet-Newcombe agreement and the Armistice Agreement signed on 23 March 1949, according to which the southern border of Lebanon is delimited from Ra’s Naqurah at point B1, the coordinates of which are given in the attachment’.77 In the same vein, in a number of actual situations, the resolution of tripoint issues affecting maritime delimitation will be dependent on the settlement of sovereignty issues.78 Collectively unrecognized States (and non-State entities) cannot arguably claim maritime zones, or at the very least such claims would be inopposable to third States. It seems reasonable to consider that the maritime zones potentially generated by the coasts of territories (including islands) under control of the (collectively unrecognized) political For a Lebanese view on this dispute, see, e.g., Nizar Abdel-Kader, ‘Potential Conflict between Lebanon and Israel over Oil and Gas Resources – A Lebanese Perspective’ (2011) 78 National Defence Magazine (Lebanon), at https://www.lebarmy.gov.lb/en/content/ potential-conflict-between-lebanon-and-israel-over-oil-and-gas-resources-%E2%80%93 -lebanese; for an Israeli perspective on the land boundary dispute, see, e.g., D. Eshel, ‘The Israel-Lebanon Border Enigma’ (2001) 8 ibru Boundary & Security Bulletin 72–83. Letter dated 3 September 2011 from the Minister for Foreign Affairs and Emigrants of Lebanon addressed to the Secretary-General of the United Nations concerning the geographical coordinates of the northern limit of the territorial sea and the exclusive economic zone transmitted by Israel. Ibid. See C. Lathrop, ‘Tripoint Issues in Maritime Boundary Delimitation’, in D.A. Colson and R.W. Smith (eds), International Maritime Boundaries, Volume v (Leiden: Martinus Nijhoff, 2005) 3305–3375, at 3312–3313.

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e­ ntities in question, are nevertheless to be protected from claims by third States. These maritime zones may be considered as (pre)existing – or existing potentially – even though these are incapable to be (pro)claimed at present. As far as rights over the continental shelf are concerned, such interpretation seems to accord with the rule under which rights to the continental shelf ‘exist ipso jure and ab initio’, even if only ‘by virtue of [the State’s] sovereignty over the land’.79 By contrast to the situation just referred to, it seems that non-sovereign entities in control of disputed coastal territory, that are not subject to collective non-recognition, could arguably claim maritime zones based on the concepts of self-determination80 and permanent sovereignty over natural resources.81 There is some practice indicating that entities with an (arguably) legitimate claim of self-determination, may claim maritime zones and the benefit of marine resources off their coasts. Although rights to maritime zones, ‘including rights to explore for and exploit natural resources in the continental shelf, vest in coastal States, and there would appear to be no scope for a derogation from this principle where the coastal area is occupied by a people that enjoys an element of autonomy or aspires to self-determination’,82 nevertheless one may argue that non-sovereign coastal entities are entitled to certain maritime rights. It has been convincingly argued, in light of cases such as East Timor, Western Sahara, and Greenland that there is ‘settled State practice that certain types of non-State entities enjoy these rights along with evidence of a belief that this State practice is obligatory. As a consequence, there are strong grounds for arguing that, as a matter of customary international law, non-State entities, or at least those which enjoy a legitimate claim to exercise their right to self-determination, enjoy rights to hydrocarbons located in their continental shelf’.83 The non-sovereign entities concerned arguably are first and foremost those listed as NonSelf-­Governing Territories, recognised as such by the United Nations. But

79 See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, icj Reports 1969, 3, para. 19. 80 See esp. Art. 1(2) of the 1966 International Covenant on Economic, Social and Cultural Rights, and the commentary in B. Saul, D. Kinley, J. Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (Oxford, ­Oxford University Press, 2014), 126, on ‘dealings with illegally exploited resources’. 81 See Th. Cottier, Equitable Principles of Maritime Boundary Delimitation, The Quest for Distributive Justice in International Law (Cambridge: Cambridge University Press, 2015) 100. 82 See C. Claypoole, ‘Sovereign Rights for Non-Sovereigns’, supra note 11. 83 Ibid.

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it is not u ­ nreasonable to assume that such rights could also benefit other entities, which do not qualify as Non-Self-Governing Territories, but where claims of self-­determination or independence are being pursued. Moreover, based on the Western Sahara scenario, there is an argument that such non-sovereign entities, or their populations (most of all their coastal populations) are entitled to certain rights with regards to the natural resources present off the coasts, at least on a provisional basis, pending any maritime delimitation and irrespective of the final resolution of their sovereignty (and/or self-determination) claim. 8. Baselines are to be drawn from undisputed land territory. As previously noted, there is some State practice to incorporate disputed territory (or islands) into (straight) baselines. Since the validity and opposability of such claims is highly questionable, and it is highly likely that any court or tribunal would disregard such baseline claims, such practice appears mostly as an indirect means to bolster territorial claims over the relevant land territory, islands or maritime features. 9. In maritime delimitation jurisprudence the relevant coasts are those of the parties. This point was emphasized in the Cameroon v. Nigeria case before the icj, where the Court was faced with Cameroon’s contention that for the purpose of the maritime delimitation with Nigeria, account should be taken of the coastline of the Gulf of Guinea from Akasso (Nigeria) to Cap Lopez (Gabon). The Court declined to use this method, stressing that the maritime boundary between Cameroon and Nigeria Cain only be determined by reference to points on the coastlines of these two States and not of third States.84 Thus, following that line of reasoning a coast that is not under the sovereignty of a State cannot be designated by the latter as a ‘relevant coast’ for the purpose of delimiting a maritime boundary with a neighbouring State. Therefore it is reasonable to assume also that the relevant baselines for the purposes of delimitation have to be those of the parties. 10. It is unclear what would be the fate of offshore hydrocarbon concessions in case of change in the status of maritime zones. One may consider for example a situation where an offshore hydrocarbon concession has been granted on a zone that was a maritime zone of State A at the time of the concession, that subsequently becomes a maritime zone of State B by virtue of a change in sovereignty over territory, that entails a change in the 84

Land and Maritime Boundury hetween Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, icj Reports 2002, p. 303, para. 291.

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State entitled to claim maritime zones drawn from such territory. Some guidance may be found in the rules of international law applicable to change of sovereignty over (land) territory. Here a general rule, as identified from the practice of States, seems to be that concessions entered into between a sovereign (or a public person) and a concessionnaire are not as a general rule affected by the occurrence of a change in territorial sovereignty, subject to the lawfulness of the chance in territorial sovereignty, and perhaps the need to take into consideration the new economic situation faced by the new sovereign.85 Assertion of de facto rights/juridiction over disputed maritime zones in violation of international law may entail the international responsibility of the State(s) concerned. In relation to this, it may be noted that in its submissions in the case of Nicaragua/Colombia, Nicaragua had reserved reserved the right to claim compensation on that basis: Whilst the principal purpose of this Application is to obtain declarations concerning title and the determination of maritime boundaries, the Government of Nicaragua reserves the right to claim compensation for elements of unjust enrichment consequent upon Colombian possession of the Islands of San Andrés and Providencia as well as the keys and maritime spaces up to the 82 meridian, in the absence of lawful title. The Government of Nicaragua also reserves the right to claim compensation for interference with fishing vessels of Nicaraguan nationality or vessels licensed by Nicaragua.86 See, e.g., G.I. Hernández, ‘Territorial Change, Effects of’, in R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012) 850–856, at 854–855. Territorial and Maritime Dispute (Nicaragua v. Colombia), Application of the Republic of Nicaragua (6 December 2001), para. 9.

Chapter 3

Arbitrating Maritime Disputes: Evolving Approaches to Maritime Features and Third Party Interests in unclos Arbitration Robert G. Volterra* 1 Introduction The treatment of maritime features and third parties in the adjudication of maritime boundary disputes has evolved significantly over the years since the judgment handed down by the International Court of Justice in the 1969 North Sea Continental Shelf cases.1 The United Nations Convention on the Law of the Sea (“unclos”),2 which was signed and came into force after those cases, contains provisions dealing with certain maritime features and also with resolving delimitation disputes. However, these unclos provisions are not necessarily comprehensive or unambiguous. A number of judicial decisions and arbitral awards rendered during the last two decades have contributed to developing the understanding in public international law of these provisions of unclos. This chapter will compare the treatment of maritime features and third parties under unclos by the respective tribunals in the cases of Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen) (“Eritrea v. Yemen”),3 the Arbitration between ­Barbados and

* Robert G. Volterra is a visiting professor at University College London, a Senior Visiting Fellow at King’s College London and a partner at Volterra Fietta, the public international law firm. He is grateful for the assistance of Alessandro Rollo, his colleague at Volterra Fietta, for his assistance in converting the conference presentation into this chapter. 1 North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 1969 icj 3. 2 United Nations Convention on the Law of the Sea, 1833 unts 3, 10 December 1982 (“unclos”). 3 Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), riaa Volume xxii pp.  209–332, Award of the Arbitral Tribunal in the first stage of the proceedings between Eritrea and Yemen (Territorial Sovereignty and Scope of the Dispute), 9 October 1998 (­“Eritrea v. Yemen, First Stage Award”); Territorial Sovereignty and Scope of the Dispute (Eritrea and ­Yemen), riaa Volume xxii pp. 335–410, Award of the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), 17 December 1999 (“Eritrea v. Yemen, Second Stage Award”).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_005

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the Republic of Trinidad and Tobago, relating to the ­delimitation of the exclusive economic zone and the continental shelf between them ­(“Barbados v. Trinidad and Tobago”)4 and The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) (the “South China Sea Arbitration”).5 Comparing these awards suggests that the approach of tribunals to their treatment of maritime features and third parties is evolving considerably. For example, in both Eritrea v. Yemen and Barbados v. Trinidad and Tobago, the tribunals gave only cursory consideration to the status of the disputed features. In contrast, in the South China Sea Arbitration, this issue formed the substance of much of the dispute. In terms of third parties, in Eritrea v. Yemen, the tribunal cautiously adopted a delimitation line that stopped well short of any possible overlapping third party claim. In contrast, the South China Sea Arbitration tribunal recognised the existence of other claims to the South China Sea and yet still found that it had jurisdiction because Malaysia’s and Vietnam’s interests did not form the very specific subject matter of the dispute before it. Both in relation to maritime features and third party interests, the jurisprudence of international courts and tribunals confirm that adjudication of these issues is continuing to become more professionalised, with law firms and professional international law litigators populating the winner’s podium. The rest of this chapter is divided into three parts. Part i provides an overview of the unclos regime governing the status of maritime features and the interaction between the status of a feature and the determination of sovereignty over it. Part ii considers the analysis of maritime features and third parties in the three aforementioned cases. Finally, Part iii presents a number of conclusions on the changes in the approach of arbitral tribunals to the determination of the status of maritime features under unclos and the treatment of third parties.

4 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, riaa Volume xxvii pp. 147–251, Award, 11 April 2006 (“Barbados v. Trinidad and Tobago, Award”). 5 The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016 (“The South China Sea Arbitration, Award on the Merits”) and The South China Sea Arbitration, Award on the Merits; The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013– 19, Award on Jurisdiction and Admissibility, 29 October 2015 (“The South China Sea Arbitration, Award on Jurisdiction”).

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2 Part i – Overview of the Legal Regime Governing Maritime Features under unclos The legal regime governing maritime features under unclos distinguishes between three key types of features: (a) islands; (b) rocks; and (c) low-tide elevations.6 These three categories can be divided into two further groups: islands and rocks, which remain above the high-water mark at high tide, and low-tide elevations, which are submerged at high tide. This division is based on the idea that, when a feature is not permanently above high water, it is not an island in the legal sense, i.e., it cannot generate maritime zones.7 The legal regime governing low-tide elevations is contained in Article 13 of unclos, which is identical to Article 11 of the Convention on the Territorial Sea and the Contiguous Zone.8 Article 13(1) defines a low-tide elevation as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide”. Where a feature is a low-tide elevation, it is not subject to the same legal regime applicable to islands.9 As the tribunal indicated in the South China Sea Arbitration, “low-tide elevations do not form part of the land territory of a State in the legal sense”.10 According to that tribunal, “they form part of the submerged landmass of the State and fall within the legal regimes for the territorial sea or continental shelf”.11 Article 13(1) of unclos provides that low-tide elevations may be used as baselines for measuring the breadth of the territorial sea, when they fall wholly or partly within the territorial sea of a coastal State. However, Article 13(2) of unclos provides that, if a low-tide elevation is situated wholly outside of a coastal State’s territorial sea, it attracts no maritime zones of its own.12 Further, low-tide elevations cannot be appropriated, although “a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself”.13 6 7 8 9 10 11 12 13

unclos, Articles 13 and 121. Haritini Dipla, Islands, Max Planck Encyclopedia of Public International Law, mpepil 1181, 2008 (“Dipla, Islands, mpepil”), para 10. Dipla, Islands, mpepil, para 11; Convention on the Territorial Sea and the Contiguous Zone, 516 unts 205, 29 April 1958. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, 16 March 2001, icj Reports 2001, p. 40 (“Qatar v. Bahrain”), para 206. The South China Sea Arbitration, Award on the Merits, para 309. The South China Sea Arbitration, Award on the Merits, para 309. Qatar v. Bahrain, para 207; Dipla, Islands, mpepil, para 11. The South China Sea Arbitration, Award on the Merits, para 309 citing the Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012, icj Reports 2012, p. 624, para. 26.

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By contrast, both rocks and islands generate maritime zones under unclos. However, characterising a formation as an island or as a rock has a bearing on the types of maritime zones that such formation can generate. Under Article 121(2) of unclos, when a feature is classified as an island, it is entitled to a territorial sea, a contiguous zone, an eez and a continental shelf. Conversely, according to Article 121(3) of unclos, “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. Such rocks, therefore, give only entitlement to a territorial sea and a contiguous zone. Article 121(1) of unclos provides that, regardless its size or population, a feature is legally an island if two conditions are met: (i) the feature is “a naturally formed area of land, surrounded by water”; and (ii) it is “above water at high tide”.14 unclos does not clarify the meaning of the terms “naturally formed” or “above water at high tide”. However, it is widely accepted that artificial features, such as man-made islands or other features, are not within the scope of Article 121. As the tribunal explained in the South China Sea Arbitration: the inclusion of the term “naturally formed” in the definition of both a low-tide elevation and an island indicates that the status of a feature is to be evaluated on the basis of its natural condition. As a matter of law, human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it.15 The tribunal further stated: Just as a low-tide elevation or area of seabed cannot be legally transformed into an island through human efforts, the Tribunal considers that a rock cannot be transformed into a fully entitled island through land reclamation. The status of a feature must be assessed on the basis of its natural condition.16 This reading is consistent with the object and purpose of Article 121(3), which states that “[r]ocks which cannot sustain human habitation or economic life of 14 15 16

unclos, Article 121(1); James Crawford, Brownlie’s Principles of Public International Law (oup 2012, 8th Edition) (“Brownlie’s Principles of Public International Law”), page 262. The South China Sea Arbitration, Award on the Merits, para 305. The South China Sea Arbitration, Award on the Merits, para 508.

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their own shall have no exclusive economic zone or continental shelf”. If States were allowed to transform any inhabitable rock into an island by resorting to technology, the purpose of Article 121(3) as a provision of limitation would be defeated.17 Unlike the term “island”, Article 121 of unclos does not define the term “rock”. The only provision regulating rocks is the above-mentioned Article 121(3). This provision “reflects the concern that minor features permanently above sea level but otherwise insignificant should not generate extended maritime zones up to or beyond 200 nautical miles” (“nm”).18 It does not, however, provide great clarity as to the distinction between islands and rocks. In any event, that such a distinction is contemplated by Article 121(3) was recognised in the South China Sea Arbitration.19 3 Part ii – Arbitral Jurisprudence on Maritime Features A Eritrea v. Yemen (i) Overview Eritrea and Yemen are opposite coastline States in the Red Sea separated by 125 nm in the north and 20 nm in the south.20 The dispute between these two States arose as to sovereignty over a series of islands located between them, as well as the delimitation of their maritime boundary.21 The disputed formations in the southern Red Sea, located in part along the shipping lanes connecting the Strait of Bab el-Mandeb to the Suez Canal, were situated in a strategic area for international navigation.22 The dispute dated back to the years preceding the fall of the Ottoman Empire, prior to World War i.23 Under the 1947 Treaty of Peace concluded by the Allied Powers and Italy after World War Two, Italy renounced “all right and title to the Italian territorial possessions in Africa”.24 In 1952, “all former I­ talian 17 18 19 20 21 22

23 24

The South China Sea Arbitration, Award on the Merits, para 509. Brownlie’s Principles of Public International Law, page 262. The South China Sea Arbitration, Award on the Merits, para 390. Stephen Fietta and Robin Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation, oup, 2016 (“Fietta & Cleverly”), page 345. Fietta & Cleverly, page 344. Barbara Kwiatkowska, The Eritrea/Yemen Arbitration: Landmark Progress In The Acquisition Of Territorial Sovereignty and Equitable Maritime Boundary Delimitation, ibru Boundary and Security Bulletin, 2000 9” (“Kwiatkowska, The Eritrea/Yemen Arbitration”), page 66. Fietta & Cleverly, page 345. Fietta & Cleverly, page 345; 1947 Treaty of Peace with Italy, 49 unts 747, 10 February 1947, Article 23(1).

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Figure 3.1 Territorial sovereignty and scope of the dispute (Eritrea and Yemen), pca Case Number 1996–04, Chart 1.

t­erritorial possessions in Eritrea” were transferred to Ethiopia, with which ­Eritrea was then federated.25 According to Eritrea, this transfer marked the passing of sovereignty over the islands to Ethiopia.26 Eritrea, which had become independent of Ethiopia in 1991, claimed title to the islands as former acquisitions of Ethiopia.27 By contrast, Yemen claimed historic title to the islands, by arguing that it could be traced to the Bilad el-Yemen, or realm of Yemen, which is said to have existed in the sixth century AD.28 Yemen argued that its incorporation into the Ottoman Empire from 1538 to approximately 1635, and from 1872 to 1918, did not affect its historic title to its territory as it remained a separate territorial and administrative unit.29 25 26 27 28 29

Eritrea v. Yemen, First Stage Award, para 23. Eritrea v. Yemen, First Stage Award, para 23. Eritrea v. Yemen, First Stage Award, para 24. Eritrea v. Yemen, First Stage Award, paras 31–33. Eritrea v. Yemen, First Stage Award, para 32.

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The impetus to resolve the dispute arose from the conclusion of hostilities between the countries in 1995, which resulted in Eritrean forces occupying Greater Hanish Island and a number of surrounding islands, and Yemeni forces occupying Zuqar Island.30 The UN Secretary General recommended to Eritrea and Yemen to invite the French government to “contribute to the seeking of a peaceful settlement of the dispute between them in the Red Sea”.31 On 21 May 1996, Eritrea and Yemen entered into an agreement in which they committed not to use force against each other and to settle their dispute peacefully.32 On 3 October 1996, the Parties agreed to submit the dispute to arbitration. The tribunal was established under the auspices of the Permanent Court of Arbitration and included five notable public international law practitioners. (ii) The Tribunal’s Decision The arbitration agreement required the tribunal to address the dispute in two stages: first sovereignty over the maritime features and then delimitation. Accordingly, the tribunal issued two arbitral awards: the First Stage Award, dated 9 October 1998, addressing the sovereignty dispute over the islands and the Second Stage Award, dated 17 December 1999, addressing the delimitation of the maritime boundary. In the First Stage Award, the tribunal awarded Eritrea sovereignty over the following islands: (i) the islands, islet, rocks, and low-tide elevations of the ­Mohabbakah Islands; (ii) the islands, islet, rocks, and low-tide elevations forming the Haycock Islands; and (iii) the South West Rocks. Yemen was awarded sovereignty over: (i) the islands, islet, rocks, and low-tide elevations of the Zuqar-Hanish group; and (ii) the island of Jabal al-Tayr, and the islands, islets, rocks and low-tide elevations forming the Zubayr group.33 Despite the glossing-over by the tribunal, Yemen won the significant islands that were really in dispute between the parties. In deciding on sovereignty, the tribunal first addressed the parties’ arguments regarding historic title. The tribunal found that neither party had demonstrated that it had sovereignty on the basis of ancient title or title by ­succession.34 According to the tribunal, it is well-established in international law that sovereignty may be established through the test of “the continuous and peaceful display of the functions of state within a given region”35 or the 30 31 32 33 34 35

Fietta & Cleverly, page 345. Eritrea v. Yemen, First Stage Award, para 77. Eritrea v. Yemen, First Stage Award, para 2. Eritrea v. Yemen, First Stage Award, para 527. Eritrea v. Yemen, First Stage Award, para 449. Island of Palmas case (Netherlands v. United States), 2 riaa 829, 840 (1928).

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test of “very little in the way of actual exercise of sovereign rights”.36 Applying these tests, the tribunal found that neither party had demonstrated title.37 This result was, in the words of the tribunal, hardly surprising, “given the waterless and uninhabitable nature of these islands and islets and rocks, and the intermittent and kaleidoscopically changing political situations and interests”.38 In reality, the effect of the tribunal’s decision to settle the question of sovereignty over the islands by ignoring both parties’ the historical claims was to hand the victory in the First Stage to Yemen, as is described more fully below. Having rejected the arguments based on historic title, the tribunal adopted a radical approach, departing from the terms in which both parties had pleaded their cases and resolving to divide the islands by the weight of the evidence and arguments presented by the parties.39 The issue of sovereignty over the various sub-units was primarily decided on the basis of a presumption in favour of a State’s sovereignty over maritime features based on proximity.40 While resorting to such a presumption is not revolutionary, the tribunal’s approach was rather unique as it found that the presumption could only be defeated by a “fully-established case to the contrary”.41 Accordingly, the tribunal awarded sovereignty over the Mohabbakah Islands to Eritrea on the grounds that, with the exception of High Islet, they were located within 12 miles from the Eritrean coast.42 In spite of the fact that High Islet was situated outside of Eritrea’s territorial sea, the tribunal awarded Eritrea sovereignty over it as the Mohabbakah Islands had “always been considered as one group, sharing the same legal destiny” and High Islet was “certainly also appurtenant to the African coast”.43 The tribunal, however, adopted some restrictions on the application of the proximity doctrine. Having recognised the existence of a strong presumption that islands within the twelve-mile coastal belt belong to the coastal State, the tribunal continued: there is no like presumption outside the coastal belt, where the ownership of the islands is plainly at issue. The ownership over adjacent ­islands 36 37 38 39 40 41 42 43

Legal Status of Eastem Greenland (Denmark. v. Norway.), 1933 pcij (ser. A/B) No. 53, 5 April 1933. W Michael Reisman, The Government of the State of Eritrea and the Government of the Republic of Yemen Award of the Arbitral Tribunal in the First Stage of the Proceedings, 93 Am. J. Int’l L. 668 (1999), page 673 (“Reisman”). Eritrea v. Yemen, First Stage Award, para 449. Eritrea v. Yemen, First Stage Award, para 466; Reisman, page 674. Reisman, pages 674 and 679. Eritrea v. Yemen, First Stage Award, para 474; Reisman, page 679. Eritrea v. Yemen, First Stage Award, para 472; Fietta & Cleverly, page 347. Eritrea v. Yemen, First Stage Award, para 475; Fietta & Cleverly, page 347.

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undoubtedly generates a right to a corresponding territorial sea, but merely extending the territorial sea beyond the permitted coastal belt, cannot of itself generate sovereignty over islands so encompassed. And even if there were a presumption of coastal-state sovereignty over islands falling within the twelve-mile territorial sea of a coastal-belt island, it would be no more than a presumption, capable of being rebutted by evidence of a superior title.44 Nonetheless, the tribunal awarded sovereignty over the Haycock Islands, situated outside Eritrea’s territorial sea, to Eritrea.45 In doing so, it referred to the evidence related to petroleum agreements in support of its decision, choosing to ignore the temporary consequences of the Ethiopian civil war on Ethiopian/ Eritrean activities in the Red Sea.46 Ultimately, the tribunal returned to the proximity presumption, stating: geographical arguments of proximity to the Eritrean coast remain persuasive and accord with the general opinion that islands off a coast will belong to the coastal state, unless another, superior title can be established.47 The tribunal awarded the South West Rocks to Eritrea on the grounds that they had been considered at various times to form “the easternmost limit of African-coast jurisdiction” and that Italy had asserted jurisdiction over them.48 The tribunal could not apply the same proximity presumption to the midsea islands of the Zuqar-Hanish group, the Zubayr group and Jabal al-Tayr. These were the islands that were really in dispute (there is no evidence that Yemen actually thought that it would be awarded islands that were located metres off the African mainland). The tribunal awarded sovereignty over these islands by weighing the evidence of exercise of recent governmental authority offered by the Parties. The parties provided evidence in respect of the construction and maintenance of lighthouses,49 naval patrols,50 and petroleum activities.51 Yemen’s historic claim was based on vague assertions from ancient history; its evidence of exercise of recent governmental authority was 44 45 46 47 48 49 50 51

Eritrea v. Yemen, First Stage Award, para 474. Eritrea v. Yemen, First Stage Award, para 482. Eritrea v. Yemen, First Stage Award, para 481. Eritrea v. Yemen, First Stage Award, para 480. Eritrea v. Yemen, First Stage Award, para 483; see also Reisman, page 675. Eritrea v. Yemen, First Stage Award, paras 492, 513–514. Eritrea v. Yemen, First Stage Award, paras 493–496. Eritrea v. Yemen, First Stage Award, paras 497–502.

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based on the decade before the 1995 conflict with Eritrea. Eritrea’s historic claim was based on publicly available records of Italian or Ethiopian activities from the latter part of the 19th century until about a decade before the 1995 conflict; during the decade before the 1995 conflict, the advanced stage of the civil war in Ethiopia had cut off Ethiopia from the sea and Ethiopia disbanded its navy, thus temporarily suspending Ethiopian/Eritrean activities in and around the disputed islands in the middle of the Red Sea until Eritrea reconstituted naval patrols following the end of the civil war and its independence. Thus, when the tribunal decided to exclude what it termed the historic evidence, it excluded more than a hundred years of evidence of Italian and Ethiopian activities (on which Eritrea was entitled to rely) and considered only evidence created during the decade or so before 1995 when the conduct of Ethiopia’s civil war had led to a temporary suspension of Ethiopian/ Eritrean activities in the Red Sea. This meant that Yemen was able to submit evidence of its activities during the period of Ethiopian/Eritrean inactivity and, on the basis of that evidence, the tribunal awarded sovereignty over those islands to Yemen.52 This is an example of the outcome of an inter-State dispute being decided by a tribunal under cover of a seemingly objective procedural decision. In the Second Stage Award, dated 17 December 1999, the tribunal addressed the delimitation of the maritime boundary between Eritrea and Yemen. While Eritrea was not a party to unclos, the tribunal found that many of the relevant elements of customary international law were incorporated into the corresponding provisions of unclos and that Eritrea had, in any event, accepted the application of these provisions by reference to unclos in the arbitration agreement.53 Both parties argued that the boundary should be determined on the basis of a median or equidistance line.54 However, the parties disagreed on the points of departure and, therefore, proposed very different lines.55 As discussed in more detail below,56 in order to determine the baseline of the territorial sea, the tribunal drew a median line by taking into account a number of islands located close to the coasts of the two States and dismissing the relevance of a number of mid-sea islands for delimitation purposes.

52 53 54 55 56

Eritrea v. Yemen, First Stage Award, paras 507 and 524. Eritrea v. Yemen, Second Stage Award, para 130. Eritrea v. Yemen, Second Stage Award, para 131. Eritrea v. Yemen, Second Stage Award, para 131. See Part ii(A)(v).

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(iii)

Elements of Interest: Physical Evidence and the Status of Maritime Features There are a number of interesting aspects of the Eritrea v Yemen decision for the purposes of this chapter. First, while the tribunal was presented with voluminous evidence of effectivités, little evidence was directed to the physical characteristics of the features in question. In particular, the parties did not present extensive geographic evidence outlining, for example, the projection of the features at high-tide. The limited attention given to this issue is reflected in the tribunal’s analysis. The tribunal only addressed the physical nature of the features on several occasions, and primarily in the context of considering the effectivités of the parties. A number of pertinent examples are set out below: The disputed islands and islets range from small to tiny, are uniformly unattractive, waterless, and habitable only with great difficulty.57 [N]one of the Islands is inhabited on other than a seasonal or temporary basis, or even has the natural and physical conditions that would permit sustaining continual human presence.58 And it must be said that, given the waterless and uninhabitable nature of these islands and islets and rocks, and the intermittent and kaleidoscopically changing political situations and interests, [the fact that neither party could persuade the Tribunal that it had historic title] is hardly surprising.59 As these quotes demonstrate, the tribunal merely commented on the “uninhabitable” nature of the islands without undertaking a more in-depth examination of them. There are two possible interpretations of the tribunal’s approach. On the one hand, as the habitability of a feature is a relevant consideration under Article 121(3) of unclos—on rocks which cannot sustain human habitation or economic life—the tribunal may have been purporting to treat the various maritime features as rocks for the purposes of Art 121(3). Alternatively, given that the tribunal did not address this issue, it might appear that the tribunal considered all high-tide features to be islands for the purposes of Article 121(1), and thus entitled to claim full maritime zones. Some support for the latter view may be derived from the Second Stage Award. In addressing the delimitation question, Yemen calculated its median 57 58 59

Eritrea v. Yemen, First Stage Award, para 93. Eritrea v. Yemen, First Stage Award, para 124. Eritrea v. Yemen, First Stage Award, para 449.

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line in such a way as to enclave the Eritrean Haycock Islands and South West Rocks, which it dismissed as nothing more than “navigational hazards”,60 within its territorial sea.61 The tribunal, however, rejected Yemen’s argument. In so doing, it noted: There is no doubt that an island, however small, and even rocks provided they are indeed islands proud of the water at high-tide, are capable of generating a territorial sea of up to 12 miles (article 121.2 of the Convention). It follows that a chain of islands which are less than 24 miles apart can generate a continuous band of territorial sea. This is the situation of the Eritrean islands out to, and including, the South West Rocks.62 The reference to Art 121(2), and not to Art 121(3), could be viewed as an implicit endorsement of the position that all the features were islands entitled to full maritime zones. This view, however, is inconsistent with the delimitation exercise undertaken by the tribunal. That is, the tribunal ultimately did not consider the mid-sea islands in determining the maritime boundary. Nor did the tribunal contemplate that the islands were entitled to anything more than a 12 nm territorial sea. The above passage merely supports the view that all islands, including rocks, are capable of generating a territorial sea of up to 12 miles. There is nothing inconsistent between this position and Article 121(3). Moreover, the tribunal’s repeated reference to the inhospitable nature of the features in question implies that the maritime features were treated as “rocks” for the purposes of unclos. The evident difficulty with the tribunal’s approach is that it did not consider explicitly the issue of whether a feature is an island or a rock; something which stands in stark contrast with subsequent decisions. (iv) Elements of Interest: Sovereignty over Maritime Features The tribunal’s approach is also notable for the determination reached with respect to sovereignty over the disputed features. In the First Stage Award, the tribunal awarded sovereignty over the “islands, islet, rocks, and low-tide elevations” in respect of all island groups and over the South West Rocks.63 There is nothing controversial about awarding sovereignty over islands, islets and rocks. It is well established that such features may be appropriated. Moreover,

60 61 62 63

Eritrea v. Yemen, Second Stage Award, paras 124 and 155. Eritrea v. Yemen, Second Stage Award, paras 16, 17, 122–5; Fietta & Cleverly, page 354. Eritrea v. Yemen, Second Stage Award, para 155. Eritrea v. Yemen, First Stage Award, para 527.

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as noted above,64 sovereignty over low-tide elevations may be awarded, consistently with the lex lata, where these features fall within a State’s 12 nm territorial sea.65 Accordingly, awarding sovereignty over the Mohabbakah Islands’ low-tide elevations to Eritrea is consistent with international law. However, the tribunal did not restrict itself to awarding sovereignty to lowtide elevations of the Mohabbakah Islands and also awarded sovereignty over low-tide elevations situated outside of the Parties’ territorial seas. Reisman suggests that this is the first time that sovereignty over low-tide elevations has been awarded.66 In the case of Qatar v. Bahrain, for example, the International Court of Justice held that there are no rules indicating that low-tide elevations are territory in the same sense as islands and are thus subject to the rules on territorial acquisition.67 For Reisman, given the relative experience of the tribunal members, this conclusion was no oversight. Rather, the decision reflects the view that maritime features in the territorial sea and eez should pertain, presumptively, to the territorial State, subject to a better claim by a competing State.68 Such an approach has the benefit of ensuring that control over territory is vested in some State, while reducing the mischief likely to be caused in the identification of that State by affording a presumption in favour of the coastal State.69 (v) Elements of Interest: “Fringe” vs. “Mid-sea” Islands The decision is also notable for its different treatment granted to fringe islands as compared to mid-sea islands, when delimiting the maritime boundary in the Stage Two Award.70 Eritrea argued that two different island chains should be included in the determination of its baseline for the purposes of equidistance. With respect to the Dahlak Islands, both Parties agreed to treat them as being part of the Eritrean coast, and, therefore, relied on base points on the islets forming the outer fringe of the group.71 Consequently, the sea between the Dahlak Islands and Eritrea’s mainland was composed of Eritrean internal 64 65 66 67 68 69 70 71

See Part i. Reisman, 680; The South China Sea Arbitration, Award on the Merits, para 309 citing the Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012, icj Reports 2012, p. 624, para 26. Reisman, page 680. Qatar v. Bahrain, para 205. See also The South China Sea Arbitration, Award on the Merits, para 309. Reisman, page 680. Reisman, page 680. Fietta & Cleverly, page 362. Eritrea v. Yemen, Second Stage Award, para 114.

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waters.72 The tribunal thus concluded that the outermost of the Dahlak islands should constitute the base points for the construction of the median line.73 Eritrea attempted to use the same arguments with respect to the Negileh Rock reef, but this argument was dismissed by the tribunal.74 The tribunal noted that Eritrea had claimed a straight baseline system under Article 7(4) of unclos, which provides: Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses of similar installations which are permanently above sea level have been built on them or in instances where the drawing of straight baselines to and from such elevations has received general international recognition. As a result, the tribunal concluded that Eritrea had foreclosed “any right to employ a reef that is not proud of the water at low-tide as a baseline of the territorial sea”.75 The tribunal also accepted that Kamaran Island, the Islet of Tiqfash, and the smaller islands of Kutama and Uqban (found North of Kamaran) formed part of Yemen’s coast for delimitation purposes.76 By contrast, the tribunal rejected Yemen’s suggestion that the mid-sea island of Jabal al-Tayr and the mid-sea group called al-Zubayr should be taken into account in the delimitation process. As the tribunal stated: These islands do not constitute a part of Yemen’s mainland coast. Moreover, their barren and inhospitable nature and their position well out to sea … mean that they should not be taken into consideration in computing the boundary line between Yemen and Eritrea.77 Accordingly, the tribunal concluded that these mid-sea islands “should have no effect upon the median line international boundary”.78 The approach of the tribunal supports the view that there are three general categories of treatment afforded to islands for delimitation purposes.79 72 73 74 75 76 77 78 79

Eritrea v. Yemen, Second Stage Award, paras 118 and 139. Eritrea v. Yemen, Second Stage Award, para 146. Eritrea v. Yemen, Second Stage Award, para 144. Eritrea v. Yemen, Second Stage Award, paras 144–145. Eritrea v. Yemen, Second Stage Award, paras 150 and 151. Eritrea v. Yemen, Second Stage Award, para 147. Eritrea v. Yemen, Second Stage Award, para 148. Tullio Scovazzi, Maritime Delimitation Cases before International Courts and Tribunals, Max Planck Encyclopedia of Public International Law, mpepil 1194, (“Scovazzi, Maritime Delimitation Cases”) paras 24–29.

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Figure 3.2 Territorial sovereignty and scope of the dispute (Eritrea and Yemen), pca Case Number 1996–04, Chart 4.

First, where islands are located in the vicinity of the mainland, the common approach is to give those islands full effect in assessing equidistance, “as if they were incorporated into the mainland”.80 This is more likely to be the case where the islands form an “integral part of general coastal configuration”81 or where they are “part of an intricate system of islands, islets and reefs which 80 81

Scovazzi, Maritime Delimitation Cases, para 24. Eritrea v. Yemen, Second Stage Award, para 139.

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guard this part of the coast”.82 Second, islands of a limited size may be given reduced effect.83 Finally, islands can be given no effect, as occurred in the instant case in relation to the island of Jabal al-Tayr and the al-Zubayr group. This is more likely to occur where giving full effect to the islands would produce a disproportionate effect, having regard to the geographic features of the island.84 (vi) Elements of Interest: Third Party Interests The tribunal, in the course of delivering the Second Stage Award, also considered third party interests. The issue of third parties arose as a result of the proximity of other States to the disputed area. The States most likely to be affected were the Kingdom of Saudi Arabia, in the north, and Djibouti, in the south. With respect to the northern boundary, Saudi Arabia sent a letter to the Registrar of the Tribunal noting that that its boundaries with Yemen were disputed, reserving its position, and suggesting that the tribunal restrict delimitation to areas “that do not extend north of the latitude of the most northern point on Jabal al-Tayr island”.85 The Saudi proposal was accepted by Eritrea but Yemen disagreed and urged the tribunal to extend the limit of its so-called northern sector.86 Clearly, Yemen was anticipating a future advantage to it in its land and maritime dispute with Saudi Arabia, should the Eritrea/Yemen tribunal rule in relation to that area. The tribunal declined to follow Yemen’s suggestion and instead adopted a particularly cautious approach to the boundary determination.87 The arbitration agreement did not grant the tribunal the competence or authority to decide on any boundaries between either of the two Parties and neighbouring States. Accordingly, the tribunal halted the progress of the boundary line at its northern end point 1, well short of where the boundary might be disputed by Saudi Arabia.88

82 83

84 85 86 87 88

Eritrea v. Yemen, Second Stage Award, para 151. Scovazzi, Maritime Delimitation Cases, para 24. Scovazzi, Maritime Delimitation Cases, para 25; Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, 24 February 1982, icj Reports 1982, p. 18, para 129; see also Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, 12 October 1984, icj Reports 1984, p. 246, para 222 in Scovazzi, Maritime Delimitation Cases, para 25. Scovazzi, Maritime Delimitation Cases, para 26; Eritrea v. Yemen, Second Stage Award, para 117. Eritrea v. Yemen, Second Stage Award, para 44. Kwiatkowska, The Eritrea/Yemen Arbitration, page 75. Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: the Quest for Distributive Justice in International Law (cup 2015), page 309. Eritrea v. Yemen, Second Stage Award, para 164; Kwiatkowska, The Eritrea/Yemen Arbitration, page 75.

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With regard to the southern boundary, contrary to Saudi Arabia, Djibouti did not make any submission to the tribunal.89 The tribunal therefore determined the matter proprio motu.90 Despite the lack of third party representations, the tribunal was again cautious to avoid affecting Djibouti’s interests. In the southern sector, there was the possibility for the boundary line to be complicated by the possible influence of Perim Island, which could have impacted Djibouti’s interests.91 Accordingly, the tribunal opted to end the line at southern point 29, again short of where the boundary could be disputed by a third party.92 The tribunal’s approach indicates a clear intention to avoid touching upon the interests of third parties in the maritime delimitation context. Not only did the tribunal welcome the input of such States but it was overly cautious to avoid drawing a boundary in prejudice of their interests. In so doing, the tribunal departed from the position of one of the parties and carefully confined its mandate to the terms of the arbitration agreement. B Barbados v. Trinidad and Tobago (i) Overview The dispute that led to the Barbados v. Trinidad and Tobago arbitration arose in respect of the delimitation of the maritime boundary between the Republic of Trinidad and Tobago and Barbados, in the Caribbean Sea.93 The Parties had been in discussions since the 1970s regarding shared fishing and hydrocarbon resources which lie between them.94 Fishing, in particular, had proven to be a source of significant tension. On several occasions, between 1988 and 2004, Trinidad and Tobago arrested Barbadian nationals fishing off the island of ­Tobago on the grounds that they had engaged in illegal fishing95 On 16 February 2004, following the further arrest of Barbadian fishermen and the failure of the parties’ Heads of State to reach an agreement in the boundary negotiations, Barbados commenced arbitral proceedings.96 As neither party had made a declaration under Article 287 of unclos, the tribunal was constituted under Annex vii.97 89 90 91 92 93 94 95 96 97

Kwiatkowska, The Eritrea/Yemen Arbitration, page 75. Kwiatkowska, The Eritrea/Yemen Arbitration, page 75. Eritrea v. Yemen, Second Stage Award, para 46. Eritrea v. Yemen, Second Stage Award, para 164; Kwiatkowska, The Eritrea/Yemen Arbitration, page 75. Barbados v. Trinidad and Tobago, Award, paras 42–45; Trinidad and Tobago declared that it is an archipelagic state under unclos, see Barbados v. Trinidad and Tobago, Award, para 49. Fietta & Cleverly, page 421. Barbados v. Trinidad and Tobago, Award, para 50–53. Barbados v. Trinidad and Tobago, Award, para 56. Barbados v. Trinidad and Tobago, Award, para 191.

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Figure 3.3 Territorial sovereignty and scope of the dispute (Eritrea and Yemen), pca Case Number 1996–04, Chart 3.

(ii) The Tribunal’s Decision In its notice of arbitration and statement of claim, Barbados claimed a single maritime boundary line delimiting the eez and continental shelf, composed of a median line adjusted so as to give effect to a special circumstance constituted by the “established traditional artisanal fishing activity of Barbadian fisherfolk”.98 Trinidad and Tobago’s claim distinguished between two sectors. In the western or Caribbean sector, Trinidad and Tobago claimed that the tribunal should delimit the eezs by drawing a median line. In relation to the eastern or Atlantic sector, it argued that, since the parties were not opposite but adjacent States, the equidistance method was not equitable and, therefore Trinidad and Tobago was “entitled to a full maritime zone, including continental shelf”.99 The tribunal, in its award, first addressed the jurisdictional objections and concluded that it had jurisdiction to delimit the continental shelves and eezs 98 99

Barbados v. Trinidad and Tobago, Award, para 58. Barbados v. Trinidad and Tobago, Award, para 62.

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Figure 3.4 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, riaa Volume xxvii pp. 147–251, Award, 11 April 2006, Map vii.

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Figure 3.5 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, riaa Volume xxvii pp. 147–251, Award, 11 April 2006, Map vi.

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of the parties100 It then proceeded to delimit the boundary on the basis of a two-step process. The first step consisted in drawing a provisional median line. The second step consisted in determining whether it was necessary, on the basis of the specific circumstances of the case, to adjust the provisional median line to achieve an equitable solution.101 Given the focus of this chapter, there are two specific aspects of the award that warrant particular attention: the role played by geography in the decision and the approach of the tribunal to third party interests. (iii) Elements of Interest: Geography It is apparent from the award that geography played a significant role in respect of the determination of baselines for the calculation of the equidistance line. As the tribunal noted: The Tribunal is not persuaded by arguments that would give basepoints a determinative role in determining what the relevant coastal frontages are. Basepoints contributing to the calculation of the equidistance line are technically identifiable and have been identified in this case. To this extent, such basepoints have a role in effecting the delimitation and in the drawing of the provisional equidistance line. But relevant coastal frontages are not strictly a function of the location of basepoints, because the influence of coastlines upon delimitation results not from the mathematical ratios discussed above or from their contribution of basepoints to the drawing of an equidistance line, but from their significance in attaining an equitable and reasonable outcome, which is a much broader consideration.102 The tribunal recognised the “radial” nature of these coasts’ projections for delimitation purposes.103 In this respect, the tribunal noted: if coastal frontages are viewed in the broader context referred to above, what matters is whether they abut as a whole upon the disputed area by a radial or directional presence relevant to the delimitation, not whether they contribute basepoints to the drawing of an equidistance line. In this 100 For further discussion of the jurisdiction objections, see Kwiatkowska, Barbados-Trinidad Award, pages 586–597; Fietta & Cleverly, pages 423–424. 101 Barbados v. Trinidad and Tobago, Award, para 242. 102 Barbados v. Trinidad and Tobago, Award, para 329. 103 Barbados v. Trinidad and Tobago, Award, paras 239 and 331.

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connection, the island of Trinidad has a not insignificant coastal frontage which clearly abuts upon the disputed area, and this is also true of the coastline of the island of Tobago.104 As a result, the tribunal concluded that, for delimitation purposes, Trinidad and Tobago’s coasts included its entire eastward- and south-eastward-facing coasts and dismissed the argument that Trinidad and Tobago’s relevant coasts were only those from which the base points used for the provisional equidistance line originated.105 (iv) Elements of Interest: Third Party Interests Third party issues arose in this case in a number of respects. The area of the delimitation is located in close proximity to a number of other States. Both parties relied on geographical proximity to other States as an argument to influence the determination of the maritime boundary line. Trinidad and Tobago relied on third parties’ interests as one of its primary arguments in favour of an adjustment to the equidistance line. Referring to what the tribunal described as regional circumstances, Trinidad and Tobago sought to rely on the following agreements to depart from the equidistance principle:106 (i) the Agreement of 7 September 1987 between France (Guadeloupe and Martinique) and Dominica;107 and (ii) the 1990 Trinidad-Venezuela Agreement.108 In particular, with regard to the latter agreement, Trinidad and Tobago argued that one of its purposes was to allow the Bolivarian Republic of Venezuela access to the Atlantic and that an equidistance line between Trinidad and Tobago and Barbados in part of the disputed area would impede such access.109 In respect of the France-Dominica Agreement, the tribunal found it had “no connection at all to the present dispute, direct or indirect”.110 In relation to the Trinidad-Venezuela Agreement, the tribunal held that it was not required to favour Trinidad and Tobago at the expenses of Barbados for the concession that the former had made to a third party.111 In this respect, the tribunal noted 104 105 106 107 108 109 110 111

Barbados v. Trinidad and Tobago, Award, para 331. Barbados v. Trinidad and Tobago, Award, para 334. Barbados v. Trinidad and Tobago, Award, paras 340–342. Agreement on Maritime Delimitation between the Government of French Republic and the Government of Dominica, 1546 unts 305, 7 September 1987. Treaty on the delimitation of marine and submarine areas, 1654 unts 293, 18 April 1990. Barbados v. Trinidad and Tobago, Award, para 341. Barbados v. Trinidad and Tobago, Award, para 344. Barbados v. Trinidad and Tobago, Award, para 346.

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that the treaty expressly stated that it did not affect the rights of third parties.112 The tribunal continued, however, observing that it was: bound to take into account this treaty, not as opposed in any way to Barbados or any other third country, but in so far as it determines what the maritime claims of Trinidad and Tobago might be. The maritime areas which Trinidad and Tobago has, in the 1990 Trinidad-Venezuela Agreement, given up in favour of Venezuela do not any longer appertain to Trinidad and Tobago and thus the Tribunal could not draw a delimitation line the effect of which would be to attribute to Trinidad and Tobago areas it no longer claims. Nor has this been requested by Trinidad and Tobago.113 In other words, the tribunal held Trinidad and Tobago to the limits it had agreed vis-à-vis Venezuela but it did not hold Barbados constrained to those limits. Accordingly, the tribunal took into account the treaty for the purposes of identifying the maximum extent of overlapping areas between the parties, exclusively in respect of Trinidad and Tobago’s claim.114 By way of contrast to Trinidad and Tobago and Venezuela, whose mutual attempt to deprive their neighbours Barbados and the Co-operative Republic of Guyana of maritime space by way of a bilateral delimitation treaty was effectively castigated by the tribunal, Barbados and Guyana had entered into a Joint Cooperation Zone Treaty dealing with the small but significant maritime area that fell outside Trinidad and Tobago’s and Venezuela’s 200 nm limit but within Barbados’s and Guyana’s 200 nm limit.115 During the arbitration, Barbados relied on that co-operation zone and the treaty as relevant circumstances that must influence the delimitation between Barbados and Trinidad and Tobago.116 The tribunal concluded that the Barbados – Guyana treaty was res inter alios acta in respect of Trinidad and Tobago and, therefore, could not have any effect on the delimitation in the dispute, except in so far as it would 112 Barbados v. Trinidad and Tobago, Award, para 346; Treaty on the delimitation of marine and submarine areas, 1654 unts 293, 18 April 1990, Article ii(2). 113 Barbados v. Trinidad and Tobago, Award, para 347. 114 Barbados v. Trinidad and Tobago, Award, para 348. 115 Exclusive Economic Zone Co-operation Treaty between the State of Barbados and the Republic of Guyana concerning the exercise of jurisdiction in their exclusive economic zones in the area of bilateral overlap within each of their outer limits and beyond the outer limits of the exclusive economic zones of other States, 2277unts 201, 2 December 2003. 116 Barbados v. Trinidad and Tobago, Award, para 349.

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reflect the limits of Barbados’ maritime claim”.117 However, as can be clearly observed from the definitive delimitation chart of the Award, the combined effect of the tribunal constraining Trinidad and Tobago to its delimitation line with Venezuela and the recognition by the tribunal of the co-operation zone as defining Barbados’s entitlement except to the extent it touched upon Trinidad and Tobago’s rights (which it does not), means that the Award confirms that Barbados’s maritime territory vis-à-vis Trinidad and Tobago extends to the south of the median line to include the co-operation zone with Guyana. The tribunal’s approach in this case to third parties was somewhat different from the approach taken in Eritrea v. Yemen. While still careful to not adjudicate on the rights of third parties, such as Venezuela, the tribunal did not entirely avoid the issues in play, when determining the maritime boundary, as the tribunal did in the Eritrea v. Yemen case. The tribunal in the Barbados v Trinidad and Tobago case used the line established in the Treaty between Venezuela and Trinidad and Tobago as an indication of the boundary line from which to determine the maximum extent of the overlapping areas between the Parties, with regard to Trinidad and Tobago’s claim. In other words, it hoist Trinidad and Tobago on its own petard. The different approaches may be explained by the fact that the tribunal in Barbados v. Trinidad and Tobago was concerned with a treaty which fixed the third party’s interest with its consent. In Eritrea v. Yemen, Yemen’s boundary with Saudi Arabia was still disputed by both those States. Accordingly, in the same way that Trinidad and Tobago could not seek a boundary line over an area that it no longer claimed, neither could Venezuela. In the Eritrea v. Yemen case, Saudi Arabia had explicitly identified the uppermost point at which it requested the tribunal to stop the delimitation.118 Thus, unlike the tribunal in the Barbados v Trinidad and Tobago case, the tribunal in the Eritrea/Yemen case therefore needed to be careful so as to avoid adopting a boundary which might impact upon the rights of third States. In the end, the tribunal in the Barbados v. Trinidad and Tobago arbitration adopted a less conservative approach with respect to third party interests. C The South China Sea Arbitration (i) Overview The South China Sea covers an area of approximately 648,000 square nm. It is surrounded by six States: the Nation of Brunei; the People’s Republic of China; the Republic of Indonesia; Malaysia; the Republic of the Philippines; and the 117 Barbados v. Trinidad and Tobago, Award, para 349. 118 Eritrea v. Yemen, Second Stage Award, para 44.

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Figure 3.6 The South China sea arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 9.

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Socialist Republic of Vietnam.119 The South China Sea contains over 30,000 small islands and reefs, the vast majority of which are not permanently occupied.120 The South China Sea hosts significant reserves of marine living and non-living resources as well as mineral reserves, including oil and gas and is one of the world’s major shipping routes.121 There are four main groups of islands and maritime features in the South China Sea: the Pratas Islands; the Paracel Islands; the Macclesfield Bank; and  the Spratly Islands.122 The Paracel Islands are disputed by China, ­Taiwan  and Vietnam.123 The Spratly Islands are disputed by China, Taiwan, Malaysia, the P ­ hilippines, Vietnam and Brunei.124 The Scarborough Shoal, located to the west of the Philippines is disputed by the Philippines, China and Taiwan.125 In addition to sovereignty disputes, there are additional disputes on maritime entitlements among the littoral States.126 A number of littoral States have occupied some of the South China Sea’s islands.127 Vietnam occupies 21 islands; the Philippines and Malaysia occupy eight islands each; China occupies seven islands and Taiwan occupies one island.128 In all the occupied islands in the South China Sea, there is military or paramilitary presence.129 China has also been building artificial islands to strengthen its presence in the Spratlys.130 Over the years, there have been a number of military clashes in the South China Sea.131 China has argued for decades that it is entitled to historic rights within the so-called nine-dash line. The line is an arbitrary and originally hand-drawn delineation that was first recognised by the Chinese government through the publication of an official map in 1948.132 119 Keyuan Zou, “The South China Sea” in Donald R Rothwell, Alex G Oude Elferink, Karen N Scott, and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (oup 2015) (“Zou, ‘The South China Sea’”), page 626. 120 Jon Lunn and Arabella Lang, The South China Sea dispute: July 2016 update, House of Commons Briefing Paper number 7481, 12 July 2016, page 5 (“Lunn and Lang, The South China Sea dispute”). 121 Zou, “The South China Sea”, pages 627–628. 122 Zou, “The South China Sea”, pages 626–627. 123 Lunn and Lang, The South China Sea dispute, page 5. 124 Lunn and Lang, The South China Sea dispute, page 5. 125 Lunn and Lang, The South China Sea dispute, pages 5–6. 126 Lunn and Lang, The South China Sea dispute, page 6; Zou, “The South China Sea”, pages 629. 127 Lunn and Lang, The South China Sea dispute, page 6. 128 Lunn and Lang, The South China Sea dispute, page 6. 129 Lunn and Lang, The South China Sea dispute, page 6. 130 Lunn and Lang, The South China Sea dispute, page 6. 131 Lunn and Lang, The South China Sea dispute, pages 6, 9. 132 The South China Sea Arbitration, Award on the Merits, para 181.

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Figure 3.7 The South China sea arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 77.

On 22 January 2013, the Philippines commenced unclos Annex vii arbitration proceedings against the People’s Republic of China in relation to the South China Sea. The Philippines set out 15 different submissions that can be divided into three groups. First, the Philippines sought a ruling that the parties’ rights and obligations relating to waters, seabed and maritime features of the South China Sea are governed by unclos and China’s claims based on historic

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rights within the nine-dash line are incompatible with unclos.133 Second, the Philippines requested the tribunal to determine whether certain maritime features were islands, rocks, low-tide elevations or submerged banks.134 Third, the Philippines requested the tribunal to declare that China had violated ­u nclos “by interfering with the Philippines’ sovereign rights and freedoms under [­u nclos] and through construction and fishing activities that have harmed the marine environment”.135 China did not participate in the proceedings. However, on 7 December 2014, China published a position paper affirming its “indisputable sovereignty over the South China Sea Islands … and the adjacent waters” and illustrating its stance on the dispute.136 In particular the position paper asserts that (i) “[t]he essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of [unclos]”; (ii) the initiation of the arbitration violated the Philippines’ obligation to settle the dispute through negotiations; and (iii) even if the arbitration concerned the interpretation of unclos, it would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of China’s declaration under Art 298 of unclos, which excluded the Annex vii tribunal’s jurisdiction over maritime delimitation disputes.137 Despite the position paper, the basis of China’s claim to sovereignty remains unclear. In particular, China’s position paper did not clarify whether China, with its historical nine-dash line, intended to claim sovereignty over the features within it.138 Although this issue is still debated, most Chinese scholars are of the view that the line is used to claim sovereignty over the islands and other territory captured by it.139 (ii) The Tribunal’s Decision The proceedings were split in two stages, which resulted in two different awards: the award addressing jurisdiction and admissibility dated 29 October 2015 and the award on the merits dated 12 July 2016.

133 134 135 136

The South China Sea Arbitration, Award on Jurisdiction, para 4. The South China Sea Arbitration, Award on Jurisdiction, para 5. The South China Sea Arbitration, Award on Jurisdiction, para 6. Position Paper on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, Ministry of Foreign Affairs, People’s Republic of China, 7 December 2014, para 4 (“China’s Position Paper”). 137 China’s Position Paper, para 3. 138 Zou, “The South China Sea”, page 635. 139 Zou, “The South China Sea”, page 635.

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For the purposes of this chapter, it is worth noting that, in the award on jurisdiction and admissibility, the tribunal rejected China’s arguments that the disputes submitted by the Philippines were sovereignty and maritime delimitation disputes and thus outside of the scope of the tribunal’s jurisdiction.140 The tribunal found that “disputes between the Parties concerning the interpretation and application of the Convention exist with respect to the matters raised by the Philippines in all of its Submissions in these proceedings”.141 The tribunal also found that there were no indispensable third parties.142 The tribunal explained that since its task was to rule on the status of maritime features and not on sovereignty over them, the rights of third States would not form the subject-matter of the decision.143 In its award on the merits, the tribunal found that all the features referred to in the Philippines’ submissions, together with the principal high-tide elevations in the Spratly islands, were either rocks or low-tide elevations under unclos.144 The result of this finding was that the features in the contested area of the South China Sea were entitled to no more than a 12 nm territorial sea. China could not therefore claim a continental shelf or eez in respect of these features as a means to extend its territorial sovereignty over the various maritime features. The tribunal also found that Mischief Reef and Second Thomas Shoal were located within 200 nautical miles of the Philippines’ coast and in an area that does not overlap with the entitlements generated by any maritime feature claimed by China. As a result, the tribunal concluded that they fall within the Philippines’ eez and continental shelf.145 The tribunal addressed again the issue of third parties and found that Malaysia and Vietnam were not indispensable third parties for the purposes of the proceedings.146 (iii) Elements of Interest: Evidence The first notable aspect of the South China Sea Arbitration is the complexity of evidence and the sophisticated approach of the tribunal to it. While a large volume of evidence was also presented in the Eritrea v. Yemen dispute with respect to effectivités over the disputed islands, the South China Sea Arbitration marks a considerable increase in both the volume and technical quality of the evidence considered by the tribunal. This reflects the continuing trend in State-to-State adjudication before international courts and tribunals to become increasingly 140 141 142 143 144 145 146

The South China Sea Arbitration, Award on Jurisdiction, paras 152 and 155. The South China Sea Arbitration, Award on Jurisdiction, para 178. The South China Sea Arbitration, Award on Jurisdiction, paras 187–188. The South China Sea Arbitration, Award on Jurisdiction, paras 180–181. The South China Sea Arbitration, Award on the Merits, paras 643–648. The South China Sea Arbitration, Award on the Merits, para 647. The South China Sea Arbitration, Award on the Merits, paras 634–642.

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professionalised, with law firms containing experienced public international law litigators representing States. With respect to the identification of the status of the maritime features, the tribunal relied on both satellite imagery and navigable charts.147 The tribunal accepted that satellite imagery may be a very useful tool, however, it did not accept “the degree of accuracy or certainty that the Philippines would give to such imagery” in its submissions.148 For the tribunal, while satellite imagery is particularly useful for the assessment of high-tide features, it is not generally used “for spectral analysis to detect the coverage of low-tide elevations at high water”.149 In conclusion, the tribunal held that satellite imagery is most beneficial when used together with other evidence and that it might be particularly useful to “disprove the existence of large sand cays or features where the area in question clearly covers with water across a series of images”.150 More convincing for the tribunal were nautical charts, records of surveys and sailing directions.151 In this respect, the tribunal noted: Each of these sources, the Tribunal notes, represents a record of direct observation of the features at a past point in time. Rocks and large coral boulders cemented to the platform of a reef have a high degree of permanence and can reasonably be expected to remain largely unchanged, even over centuries. Older direct observations are thus not per se less valuable, provided they are clear in content and obtained from a reliable source.152 Nonetheless, the tribunal explained that the mere inclusion of a feature on multiple maps will not necessarily be conclusive, particularly where subsequent maps are copies of an earlier map.153 Rather, for the tribunal, it would be most beneficial to have access to the original version of the survey data prepared by individuals who had direct knowledge of the area.154 (iv) Elements of Interest: Maritime Features The second, and most notable, aspect of the South China Sea Arbitration is the tribunal’s characterisation of maritime features. In both the Eritrea v. Yemen 147 148 149 150 151 152 153 154

The South China Sea Arbitration, Award on the Merits, paras 320–332. The South China Sea Arbitration, Award on the Merits, para 322. The South China Sea Arbitration, Award on the Merits, para 323. The South China Sea Arbitration, Award on the Merits, para 326. The South China Sea Arbitration, Award on the Merits, para 327. The South China Sea Arbitration, Award on the Merits, para 327. The South China Sea Arbitration, Award on the Merits, para 330. The South China Sea Arbitration, Award on the Merits, para 331.

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Figure 3.8 The South China sea arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 161.

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Figure 3.9 The South China sea arbitration (The Republic of Philippines v. The People’s Republic of China), pca Case no 2013–19, Award, 12 July 2016, page 171.

and Trinidad and Tobago v. Barbados cases, the tribunals gave limited attention to the characterisation of the disputed features in question for the purposes of Article 121 of unclos. By contrast, the tribunal in the South China Sea Arbitration devoted a considerable portion of the award on the merits to the analysis of the meaning of Article 121(3) of unclos.

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The need for the tribunal to engage in such a detailed analysis derived from the manner in which the Philippines pleaded the case and the jurisdictional limitations to which the tribunal was subject. In order to comply with the limitations imposed by Articles 297 and 298 of unclos, the tribunal could not rule on sovereignty over the islands and was instead restricted to the interpretation of unclos, which entailed the determination of the status of the maritime features in question. As noted previously, public international law recognises three key types of maritime features: (i) islands; (ii) rocks; and (iii) low-tide elevations.155 The tribunal first identified which of the disputed features were, on the available evidence, high-tide features and which ones were low-tide features.156 In so doing, the tribunal affirmed that there is: no rule of customary international law, that would mandate that the status of low-tide elevations and high-tide features/islands be determined against any particular high-water datum. Accordingly, the Tribunal ­considers that States are free under the Convention to claim a high-tide feature or island on the basis of any high-water datum that reasonably corresponds to the ordinary meaning of the term “high tide” in Articles 13 and 121.157 The tribunal, relying on the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia),158 explained that “low-tide elevations cannot be appropriated, although ‘a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself’”.159 The tribunal then turned to the “distinction between two categories of naturally formed high-tide features”, namely “fully entitled islands” and “rocks” under Article 121 of unclos.160 This part of the decision is of particular interest, since the tribunal engaged in the analysis of the notions of human habitation and economic life in order to determine whether features of the Spratly Islands were islands within the meaning of Article 121 of unclos. In respect of human habitation, the tribunal 155 156 157 158

See Part i. The South China Sea Arbitration, Award on the Merits, paras 279–384. The South China Sea Arbitration, Award on the Merits, para 311. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, icj Reports 2012, p. 624 at p. 641, para 26. 159 The South China Sea Arbitration, Award on the Merits, para 309. 160 The South China Sea Arbitration, Award on the Merits, para 390.

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defined it as “the non-transient inhabitation of a feature by a stable community of people for whom the feature constitutes a home and on which they can remain”.161 The tribunal found that this criterion was not met by the temporary presence of fishermen on the Spratly Islands, even for extended periods of time. This is so since there was no evidence that they had attempted to inhabit the islands with their families nor did the available information suggest that any shelter or facility necessary for the permanent residence of a population existed.162 In relation to economic life, the tribunal observed that all the economic activity in the Spratly Islands was extractive in nature and carried out for the benefit of the populations of other territories.163 The tribunal explained that: to constitute the economic life of the feature, economic activity must be oriented around the feature itself and not be focused solely on the surrounding territorial sea or entirely dependent on external resources. The  Tribunal also considers that extractive economic activity, without the presence of a stable local community, necessarily falls short of constituting the economic life of the feature.164 In light of this, the tribunal concluded that the features in the Spratly Islands did not have an economic life of their own.165 Having found that these features were not islands, the tribunal emphasised the consequences of this finding: the effect of Article 121(3) is not to deny States the benefit of the economic resources of small rocks and maritime features. Such features remain susceptible to a claim of territorial sovereignty and will generate a 12-nautical-mile territorial sea, provided they remain above water at high tide. Rather, the effect of Article 121(3) is to prevent such features—whose economic benefit, if any, to the State which controls them is for resources alone—from generating a further entitlement to a 200-nautical-mile exclusive economic zone and continental shelf that would infringe on the entitlements generated by inhabited territory or on the area reserved for the common heritage of mankind.166 161 162 163 164 165 166

The South China Sea Arbitration, Award on the Merits, para 618. The South China Sea Arbitration, Award on the Merits, paras 618–622. The South China Sea Arbitration, Award on the Merits, para 623. The South China Sea Arbitration, Award on the Merits, para 623. The South China Sea Arbitration, Award on the Merits, para 624. The South China Sea Arbitration, Award on the Merits, para 624.

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Another interesting part of the decision in relation to maritime features is the interpretation of the text of Article 121(3) provided by the tribunal. In this respect, the award greatly assists in providing clarification as to the meaning of the terms of this provision. With regard to the meaning of “rocks”, the tribunal confirmed that the use of the word “rock” does not entail that the provision only covers features composed of rock.167 The geological and geomorphological characteristics of a high-tide feature are not relevant to its classification pursuant to Article 121(3).168 Similarly, the name of a feature has no bearing on its qualification as a rock.169 Furthermore, according to the tribunal, “the status of a feature is to be determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own”.170 Accordingly, a rock cannot be transformed into a fully entitled island through land reclamation.171 The tribunal then discussed the meaning of “cannot”. The tribunal explained that “[t]his enquiry is not concerned with whether the feature actually does sustain human habitation or an economic life. It is concerned with whether, objectively, the feature is apt, able to, or lends itself to human habitation or economic life”.172 Nevertheless, according to the tribunal, “historical evidence of human habitation and economic life in the past may be relevant for establishing a feature’s capacity”.173 For the tribunal, “human habitation”, as discussed above with reference to islands, should be understood to imply “a non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner”.174 This interpretation reflects the purpose of the eez as a mechanism to preserve marine resources for the benefit of the population of the coastal State.175 Thus, to give effect to this purpose, an island must be capable of sustaining habitation by a settled group or community.176 The tribunal also held that the conjunction “or” is disjunctive. Therefore, “a rock would be disentitled from an exclusive economic zone and continental 167 168 169 170 171 172 173 174 175 176

The South China Sea Arbitration, Award on the Merits, para 482. The South China Sea Arbitration, Award on the Merits, para 481. The South China Sea Arbitration, Award on the Merits, para 482. The South China Sea Arbitration, Award on the Merits, para 541. The South China Sea Arbitration, Award on the Merits, para 508. The South China Sea Arbitration, Award on the Merits, para 483. The South China Sea Arbitration, Award on the Merits, para 484. The South China Sea Arbitration, Award on the Merits, para 489. The South China Sea Arbitration, Award on the Merits, paras 513, 517–518. The South China Sea Arbitration, Award on the Merits, para 520.

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shelf only if it were to lack both the capacity to sustain human habitation and the capacity to sustain an economic life of its own”.177 The phrase “economic life of their own” requires “ongoing economic activity” based on local resources.178 Moreover, Article 121(3) refers to economic life of their own. This entails that the inquiry must be focused on the feature itself and not on the surrounding waters or seabed.179 The tribunal then stated that the “capacity of a feature to sustain human habitation or an economic life of its own must be assessed on a case-by-case basis”180 having regard to the following factors: (i) the presence of water, food, and shelter to enable habitation for an indeterminate period of time; (ii) the prevailing climate; (iii) the proximity of the feature to other inhabited areas and populations; and (iv) the potential for livelihoods on and around the feature.181 In addition, the tribunal noted that, when habitation is dependent on outside support, a feature cannot be said to be capable of sustaining human habitation.182 However, merely making use of a number of islands for sustenance and livelihoods, “provided that such islands collectively form part of a network that sustains human habitation in keeping with the traditional lifestyle of the peoples in question”, is not to be equated to dependence on outside support.183 Lastly, the tribunal explained that “evidence of physical conditions will ordinarily suffice only to classify features that clearly fall within one category or the other” under Article 121. “If a feature is entirely barren of vegetation and lacks drinkable water and the foodstuffs necessary even for basic survival, it will be apparent that it also lacks the capacity to sustain human habitation”.184 However, for borderline cases, “the most reliable evidence of the capacity of a feature will usually be the historical use to which it has been put”.185 (v) Elements of Interest: Third Parties The role of third parties featured prominently in the South China Sea Arbitration. Given the significance of the dispute, a number of States requested observer status. The tribunal granted observer status to Australia, Indonesia, 177 178 179 180 181 182 183 184 185

The South China Sea Arbitration, Award on the Merits, para 496. The South China Sea Arbitration, Award on the Merits, para 499. The South China Sea Arbitration, Award on the Merits, para 543. The South China Sea Arbitration, Award on the Merits, para 546. The South China Sea Arbitration, Award on the Merits, para 546. The South China Sea Arbitration, Award on the Merits, para 547. The South China Sea Arbitration, Award on the Merits, para 547. The South China Sea Arbitration, Award on the Merits, para 548. The South China Sea Arbitration, Award on the Merits, para 549.

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Japan, Malaysia, the Republic of Singapore, the Kingdom of Thailand, Vietnam and the United Kingdom.186 It declined a request by the United States on the basis that it was not an interested party to unclos.187 The tribunal also addressed a number of issues concerning third parties. In particular, it addressed the issues raised by Vietnam and Malaysia in third-­ party observations that each of those States sent to the tribunal. Neither ­Vietnam nor Malaysia sought to intervene in the proceedings and their observations were made in the capacity of third parties. By not intervening, these States avoided becoming parties to the arbitral proceedings and therefore being bound by the decisions and awards. Vietnam, in its submission—which was discussed by the tribunal in the award on jurisdiction and admissibility—stated inter alia that it had “no doubt that the Tribunal has jurisdiction in these proceedings” and requested the tribunal to preserve its “rights and interests of a legal nature”.188 The tribunal concluded that Vietnam was not an indispensable third party.189 In so doing, it distinguished this case from other cases where indispensable third parties had been found.190 The tribunal explained that, contrary to the cases cited, in this case, the rights of third parties did not form the “very subject-matter” of the decision and there were no allegations of unlawful conduct by third States.191 In reaching this conclusion, the tribunal also relied on Vietnam’s statement that the tribunal had jurisdiction.192 Malaysia requested the arbitral tribunal to: ensure that, in determining whether certain maritime features in the South China Sea are entitled to specific maritime zones under unclos 1982, it does not express any position that might directly or indirectly affect the rights and interests of Malaysia. The Arbitral Tribunal thus cannot purport to decide upon the maritime entitlements pursuant to 186 The South China Sea Arbitration, Award on Jurisdiction, para 15; The South China Sea Arbitration, Award on the Merits, para 68. The United Kingdom, however, did not attend the proceedings. 187 The South China Sea Arbitration, Award on the Merits, para 67. 188 The South China Sea Arbitration, Award on Jurisdiction, para 54. 189 The South China Sea Arbitration, Award on Jurisdiction, para 187. 190 Namely, Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom, and United States), Preliminary Question, Judgment, icj Reports 1954, p. 19 at p. 32; East Timor (Portugal v. Australia), Judgment, icj Reports 1995, p. 90; and Larsen v. Hawaiian Kingdom, Award, 5 February 2001, 119 ilr p. 566. 191 The South China Sea Arbitration, Award on Jurisdiction para 181. 192 The South China Sea Arbitration, Award on Jurisdiction, paras 182–183.

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Articles 13 and 121 of unclos 1982 of any features within the eez and Continental Shelf of Malaysia as published in Malaysia’s Map of 1979.193 The tribunal noted that, since Malaysia was not a party to the proceedings, it would not be bound by any decision issued in these proceedings.194 Furthermore, the tribunal observed that: none of the features specifically identified in the Philippines’ Submissions lies within the continental shelf limit claimed by Malaysia in its 1979 Map and that Malaysia has not asserted the position that any maritime feature in the Spratly Islands constitutes a fully entitled island for the purposes of Article 121(3) of the Convention.195 However, the tribunal recognised that: With respect to the Philippines’ Submission No. 5, the Tribunal notes that Mischief Reef and Second Thomas Shoal do lie within 200 nautical miles of features claimed by Malaysia, although Malaysia itself has not claimed an exclusive economic zone or continental shelf in the area of either Mischief Reef or Second Thomas Shoal.196 The tribunal explained that the Monetary Gold principle requires a tribunal to abstain from deciding only where the “legal interests [of a third State] would not only be affected by a decision, but would form the very subject-matter of the decision”.197 On the facts of the case, the tribunal found that: to the extent it has examined certain features claimed by China (that are also claimed by Malaysia) for the purposes of assessing the possible entitlements of China in areas to which Malaysia makes no claim, the legal interests of Malaysia do not form “the very subject-matter of the dispute” and are not implicated by the Tribunal’s conclusions.198

193 194 195 196 197

The South China Sea Arbitration, Award on the Merits, para 635. The South China Sea Arbitration, Award on the Merits, para 637. The South China Sea Arbitration, Award on the Merits, para 638. The South China Sea Arbitration, Award on the Merits, para 639. The South China Sea Arbitration, Award on the Merits, para 640; Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment of 15 June 1954, icj Reports 1954, p. 19 at p. 32. 198 The South China Sea Arbitration, Award on the Merits, para 640 (footnote omitted).

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The tribunal’s language in this respect resiled from its first statement, making it clear that a third party’s interests must be considered broadly if actually affected. The tribunal concluded that the interests of Malaysia were protected by its status as non-party to the proceedings and that the tribunal had jurisdiction over the submission in question.199 In the merits phase, Malaysia submitted an observation to the tribunal pointing out that the tribunal, in its decision on jurisdiction, had erroneously copied a misrepresentation made by the Philippines in relation to Malaysian Borneo onto a chart. Malaysia requested that this be rectified in the Award and the tribunal complied, confirming the historical record that the northern Borneo state of Sabah is part of Malaysia. While earlier tribunals showed a more cautious approach to third parties, the tribunal in The South China Sea case addressed the role of third parties in a robust fashion. This is particularly noticeable in its arguably narrow interpretation of the Monetary Gold principle, which requires courts and tribunals to abstain from deciding on questions involving third parties. The approach of the tribunal to third parties has not been immune from criticism. However, the fact that the tribunal exercised jurisdiction in spite of the numerous interconnected claims by multiple littoral States leads to the conclusion that the tribunal had a less cautious approach to the interests of third parties than previous tribunals. 4 Part iii – Conclusion This chapter has analysed and compared the treatment of maritime features and third parties under unclos in three different cases. In so doing, it demonstrated that the approach of tribunals to these issues has evolved over time. The approach of tribunals to evidence has evolved. With regard to maritime features, the tribunal in the South China Sea Arbitration was faced with a higher volume of complex evidence than its predecessors. In the Eritrea v. Yemen arbitration, the tribunal merely accepted that the maritime features in question were barren and inhospitable without conducting an extensive review of evidence pertaining to the physical conditions of such features. By contrast, the tribunals in the Barbados v. Trinidad and Tobago case and the South China Sea Arbitration carried out a detailed analysis of the physical and geographic evidence presented. The tribunal in the Trinidad and Barbados v. Trinidad and Tobago case then rejected the discounting of straight baselines 199 The South China Sea Arbitration, Award on the Merits, paras 641–642.

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for the ­purposes of identifying “relevant coasts”. Similarly, in the South China Sea Arbitration, the tribunal spent considerable time analysing evidence presented and discussing its reliability. Further evidence of the evolution of the tribunals’ approach to maritime features is the increased attention devoted to the analysis of the meaning of the unclos provisions on maritime features by the tribunal in the South China Sea Arbitration. The tribunal in Eritrea v. Yemen dedicated limited attention to the meaning of Article 121 of unclos and did not identify which of the various features were low-tide elevations, rocks and islands for the purposes of Articles 13 and 121 of unclos. Conversely, the tribunal in the South China Sea Arbitration was considerably more rigorous and undertook the laborious tasks of analysing the meaning of Article 121(3) word by word and considering whether each particular feature met its requirements. In relation to third parties, the approach of tribunals has similarly evolved. The Eritrea v. Yemen tribunal was cautious in determining the delimitation line by stopping well short of any possible overlapping claim. The Barbados v Trinidad and Tobago tribunal ensured that it did not make rulings that affected third parties’ rights but it did hold third parties – particularly Venezuela – to the relevant limits to their rights that they had previously agreed. Finally, the tribunal in the South China Sea Arbitration offered a narrow interpretation of the Monetary Gold principle and found that certain features were within the eez and continental shelf of the Philippines, in spite of the presence of overlapping claims.

Chapter 4

Navigating Uncharted Procedural Waters in a Rising Sea of Cases at the Permanent Court of Arbitration Judith Levine and Garth L. Schofield* Introduction The Permanent Court of Arbitration (the “pca”) has witnessed unprecedented growth in its caseload in the past 15 years.1 Part of this growth can be attributed to a rise in arbitrations concerning the law of the sea, a product of arbitration’s place as the default mechanism for the compulsory settlement of disputes under Part xv of the United Nations Convention on the Law of the Sea (the “Convention”).2 The first part of this chapter explores how and why so many cases concerning the law of the sea have taken the form of arbitrations administered by the pca. The second part examines how arbitral tribunals and the pca as registry have addressed certain key procedural challenges that have arisen in recent cases, including: (i) the non-participation of respondent States, (ii) the different ways in which non-parties have sought to participate in proceedings, and (iii) the complexities of evidence of a technical nature. The third part considers how recent law of the sea arbitrations reflect three emerging trends in dispute settlement under the auspices of the pca, namely: (i) the increasing frequency of environmental matters in international disputes, (ii) the evolving expectations of States as to the confidentiality or transparency of arbitral proceedings, and (iii) the growing interest of parties in the use of non-binding methods of dispute resolution, including conciliation. This chapter concludes by noting the parallels between the procedural issues arising in recent arbitrations under the Convention and in other types of international * Judith Levine is Senior Legal Counsel at the Permanent Court of Arbitration and is a visiting lecturer at King’s College London. Garth L. Schofield is Senior Legal Counsel at the Permanent Court of Arbitration. 1 As at August 2017, the pca was administering 129 disputes. In the last 15 years, 315 cases have been referred to the pca for administration, of which 19 were disputes amongst States involving law of the sea matters. For general information on recent pca activities see . 2 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_006

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dispute settlement and examining the extent that the lessons of recent law of the sea proceedings may be of broader application. I Law of the Sea at the Permanent Court of Arbitration The Permanent Court of Arbitration is a creation of the first Hague Peace Conference of 1899 and the desire of the participating Powers to maintain a general peace and promote the friendly settlement of international disputes.3 At the close of the 19th Century, much of Europe was engaged in an arms race as rapid technological change and innovations in weaponry demanded continued expenditure on armaments and the requirements of mass mobilization became a dominant aspect of society.4 Concerned that the Russian Empire was ill-prepared to face such developments, Tsar Nicholas ii invited ­representatives of the principal powers to participate in a diplomatic conference intended to “check[] these increasing armaments and … seek[] the means of averting the calamities which threaten the entire world.”5 The Peace Conference convened in The Hague in May 1899. One enduring result of the conference was the adoption of the Hague Convention on the Pacific Settlement of International Disputes, which recognized the effectiveness of arbitration for the settlement of “disputes which diplomacy has failed to settle.”6 It noted that arbitration was a means for parties to have their differences finally settled by decision-makers “of their own choice,” on the basis of “respect for the law” and in accordance with a procedure to be agreed to 3 Convention for the Pacific Settlement of International Disputes, Preamble, 29 July 1899, [1901] ukts No. 9, usts 392 (hereafter “1899 Convention”). 4 See generally M. Pearton, Diplomacy, War, and Technology Since 1830, pp. 95–154 (1982); D. Stevenson, “Land Armaments in Europe, 1866–1914” in T. Mahnken, J. Maiolo & D. Stevenson, eds. Arms Races in International Politics (2015). 5 M.N. Mouravieff, “Russian Circular Note Proposing the First Peace Conference,” reproduced in J.B. Scott, Instructions to the American Delegates at the Peace Conference and their Official Reports, pp. 1–2 (1916); see also D.L. Morrill, “Nicholas ii and the Call for the First Hague Conference,” 46(2) The Journal of Modern History p. 296 (1974). 6 1899 Convention, Art. 16. The 1899 Convention was the result of the work of the Third Commission at the Conference, tasked with considering “questions relating to the possibility of preventing armed conflicts by the pacific means at the disposal of international diplomacy.” Other Conference bodies empowered to consider the limitation of armaments and the extension of the Geneva Conventions of 1864 and 1868 on the laws of war, but agreement on significant disarmament proved elusive. See M.N. Mouravieff, “Russian Circular Note Proposing the Program of the First Conference,” reproduced in J.B. Scott, Instructions to the American Delegates at the Peace Conference and their Official Reports, pp. 3–5 (1916); see generally D.D. Caron, “War and International Adjudication: ­Reflections on the 1899 Peace Conferences,” 94 American Journal of International Law p. 4 (2000).

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suit each case. The 1899 Convention established the pca to be “accessible at all times” for “immediate recourse” to facilitate the reference of international disputes to arbitration. To this end the 1899 Convention set out default rules of procedure; established a standing body of arbitrators;7 and created the pca International Bureau to serve as the Registry for arbitral proceedings, to provide a “channel for communications” between tribunals and the parties, and to maintain an archive of the records of past cases.8 From its early years, maritime affairs and disputes concerning the law of the sea played a prominent role in the work of the pca. In the 1904 Dogger Bank Case, a commission of enquiry composed of admirals from the British, Russian, American, French, and Austrian navies sought to ascertain responsibility after the Russian fleet (en route through the North Sea to the Pacific for the Russo-Japanese war) opened fire in the night on English fishing vessels, mistakenly believing them to be Japanese torpedo boats.9 In 1908, a tribunal in the Grisbådarna Arbitration was called on to delimit the territorial sea between Sweden and Norway.10 And in 1909, a tribunal in the North Atlantic Coast Fisheries arbitration was formed to evaluate the lawfulness of British efforts to regulate the rights of American fishermen, established pursuant to a convention from 1818, in the waters adjacent to the coast of Canada.11 Other early pca proceedings considered the lawfulness of a French decision to permit certain

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An element of the 1899 and 1907 Hague Conventions, the pca continues to maintain the list of “Members of the Court,” with four individuals nominated by each Contracting Party. For arbitrations not initiated pursuant to the Hague Conventions, however, there is no requirement that arbitrators be selected from the list of Members of the Court, which is the case in most pca-administered arbitrations. 1899 Convention, Art. 22. For greater detail on the history and work of the pca, see generally: B.W. Daly, “Permanent Court of Arbitration,” in C. Giorgetti, ed., The Rules, Practice, and Jurisprudence of International Courts and Tribunals p. 37 (2012); H. Jonkman, “The Role of the Permanent Court of Arbitration in International Dispute Resolution,” 279 Recueil des cours p. 12 (1999); J.P.A. François, “La Cour permanente d’arbitrage, son origine, sa jurisprudence, son avenir,” 87 Recueil des cours p. 461 (1955). The Dogger Bank Case (Great Britain/Russia), Report of 26 February 1905, reproduced in 2 American Journal of International Law 931 (1908). Affaire des Grisbådarna (Norway/Sweden), Award of 23 October 1909, RIAA Vol. XI, p. 147. The Grisbådarna Arbitration offers one of the earliest examples of a site visit in international arbitration as the tribunal toured the islands and passages screening the coast of the two States. The Tribunal was also called on to evaluate the evolution of the law on maritime delimitation over time in considering the law applicable in 1661 when the land boundary between the two States was fixed. North Atlantic Coast Fisheries (Great Britain/United States), Award of 7 September 1910, RIAA, Vol. XI, p. 167.

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vessels belonging to subjects of the Sultan of Muscat to fly the French flag,12 compensation for ships requisitioned from foreign parties for the U.S. war effort,13 fisheries enforcement in the waters surrounding the Faroe Islands,14 and a number of incidents involving the treatment of neutral vessels during the Italian–Turkish war of 191215 and each of the two world wars.16 Even in 1899, some delegates to the Hague Peace Conference had sought to establish a permanent international court, believing that preferable to arbitration in the prevention of armed conflicts.17 In this context, efforts to facilitate arbitration were seen as an imperfect compromise, adopted only to reach a consensus with those Powers sceptical of any form of compulsory dispute settlement. Attempts to establish a permanent international court continued and gathered strength in 1907 during the Second Hague Peace Conference,18 but it ultimately took until 1920 before agreement could be found to establish the Permanent Court of International Justice (the “pcij”).19 With the establishment of the pcij, the place of arbitration in the pacific settlement of international disputes came under challenge. Convinced that the proper place for international disputes of a legal character was in the newly created permanent court, the drafters of a number of significant treaties sought to envisage a new role for arbitration. Whereas the Conventions of 1899 and 1907 expressly recognized arbitration as a legal process,20 the major t­reaties 12 13 14 15 16 17 18

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Muscat Dhows (France/United Kingdom), Award of 8 August 1905, RIAA, Vol. XI, p. 83. Norwegian Claims Case (United States/Norway), Award of 13 October 1922, RIAA, Vol. I, p. 307. The “Red Crusader” Incident Inquiry (Denmark/United Kingdom), Report of 23 March 1962. French Postal Vessel “Manouba” (France/Italy), Award of 6 May 1913, RIAA, Vol. XI, p. 463; The “Carthage” (France/Italy), Award of 6 May 1913, RIAA, Vol. XI, p. 449; The “Tavignano,” “Camouna” and “Gaulois” Inquiry (France/Italy), Report of 23 July 1912. The Steamship “Tiger” Inquiry (Germany/Spain), Report of 8 November 1918; The Loss of the Dutch Steamer “Turbantia” Inquiry (Germany/Netherlands), Report of 27 February 1922; The Steamship “Roula” Conciliation (Greece/Italy), Report of 20 October 1956. See J.B. Scott, ed., Instructions to the American Delegates to the Hague Peace Conferences and Their Official Reports, pp. 6–16 (1916); F.W. Holls, The Peace Conference at The Hague: And Its Bearings on International Law and Policy, p. 239 (1900). Where agreement was reached on a draft framework for a court, with the exception of the critical question of the method for selecting judges. See Hague Peace Conference, Final Act of the Second International Peace Conference, 15 June 1907, reproduced in J.B. Scott, ed., The Proceedings of the Hague Peace Conferences: The Conference of 1907, Vol. i, p. 679 at p. 689; see also Draft Convention Relative to the Creation of a Court of Arbitral Justice, reproduced in J.B. Scott, ed., The Proceedings of the Hague Peace Conferences: The Conference of 1907, Vol. i, p. 690. See generally M.O. Hudson, The Permanent Court of International Justice, 1920–1942 (1943). 1899 Convention, art. 15; Convention for the Pacific Settlement of International Disputes, art. 37, 18 October 1907, [1971] ukts No. 6, usts 536 (hereafter “1907 Convention”).

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on the settlement of disputes concluded during the inter-war years and in the immediate aftermath of the Second World War sought to characterize arbitration as principally for “non-legal” disputes, while directing legal disputes to the international court.21 This distinction, however, was strongly criticized on conceptual grounds,22 and no practice of States seeking to resolve “non-legal” disputes through arbitration has ever emerged. The arbitration provisions of this generation of treaties have gone essentially unused. Arbitration was also marginalized in the compromissary clauses incorporated into major multilateral treaties concluded in the aftermath of the Second World War. The first generation of such treaties sought to provide exclusively for the jurisdiction of the International Court of Justice (the “icj”), but were subjected to widespread reservations in respect of these provisions.23 A second generation of treaties sought to address the issue of reservations by providing for dispute settlement—again with provisions for arbitration absent, or given secondary importance—through optional protocols, but found far fewer States willing to accede to the protocols than to the conventions themselves.24 A third generation of treaties largely dispensed with binding dispute settlement, in favour of other mechanisms such as compulsory conciliation.25 It was against this background in the formulation of multilateral treaties that the parties to the Third UN Conference on the Law of the Sea sought to forge a consensus on a new regime for the law of the sea. In light of the breadth and complexity of the proposed treaty, a majority of States insisted on the inclusion of binding dispute settlement procedures applicable to all parties. 21

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See, e.g., General Act (Pacific Settlement of International Disputes), art. 17, art. 21, 26 September 1928, LNTS Vol. xcii, p. 343; American Treaty on Pacific Settlement, arts. xxxi– xxxii, art. xxxviii, 30 April 1948, 30 UNTS 55; European Convention on the Pacific Settlement of Disputes, art. 1, art. 19, 29 April 1957, 320 UNTS 243; see generally L.B. Sohn, “The Function of International Arbitration Today,” 108 Recueil des cours p. 1 (1963). See generally H. Lauterpacht, The Function of Law in the International Community (1933). See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, art. ix, 9 December 1948, 78 UNTS 277; International Convention on the Elimination of All Forms of Racial Discrimination, art. 22, 7 March 1966, 660 UNTS 195. Such reservations were, indeed, the subject of an early advisory opinion by the Court itself, which—although it refrained from considering any particular reservation—accepted generally the permissibility of reservations not bearing on the object and purpose of the treaty, unless the treaty itself precludes reservations. See Reservations to the Convention on Genocide, Advisory Opinion, icj Reports 1951, p. 15. See, e.g., Optional Protocol of Signature concerning the Compulsory Settlement of ­Disputes [to the 1958 Geneva Conventions on the Law of the Sea], arts. 1–2, 29 April 1958, 450 unts 169; Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes, arts. 1–2, 18 April 1961, 500 unts 241. See, e.g., Vienna Convention on the Law of Treaties, art. 66, 23 May 1969, 1155 UNTS 331.

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Both the scope of such obligations and the procedures for the settlement of disputes were heavily negotiated before a consensus was finally achieved.26 As adopted, the Convention permits certain limited exceptions to compulsory settlement, notably for disputes relating to the exercise of coastal State jurisdiction in the exclusive economic zone27 and, by declaration, for disputes involving maritime boundary delimitation or historic title, disputes concerning military activities, or disputes with which the United Nations Security Council is engaged.28 Other reservations to compulsory dispute settlement, however, are not permitted. Consensus on the means for compulsory dispute settlement having been absent, the Convention provides, in Article 287, a menu of choices: States may elect the jurisdiction of the International Tribunal for the Law of the Sea (“itlos,” established by the Convention), the icj, an arbitral tribunal (pursuant to Annex vii to the Convention), or a special arbitral tribunal (an alternative procedure pursuant to Annex viii to the Convention). In the absence of a common choice, however, a dispute may be submitted only to Annex vii arbitration,29 the method considered to hold the broadest support at the time the compromise was reached. States thus have a choice on the means of settlement, but absent agreement to another forum, any party may bring a dispute to arbitration. The Convention thus marked the return of arbitration as a principal method for the resolution of disputes in a major multilateral treaty providing for compulsory jurisdiction. The Convention also represents a clear recognition that arbitration is a legal process, and an important complement to the work of international courts. As of the time of this writing, 32 States have expressed a preference for itlos, 21 have expressed a preference for the icj, and 136 have either expressed a preference for arbitration or made no declaration, such that they are deemed to have accepted arbitration pursuant to Annex vii.30 The 26 27 28 29 30

See S. Rosenne & L. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V, pp. 1–15 (M. Nordquist, gen. ed. 2012). United Nations Convention on the Law of the Sea, art. 297, 10 December 1982, 1833 unts 3. United Nations Convention on the Law of the Sea, art. 298, 10 December 1982, 1833 usts 3. United Nations Convention on the Law of the Sea, art. 287(3), (5), 10 December 1982, 1833 unts 3. United Nations Convention on the Law of the Sea, art. 287(3), 10 December 1982, 1833 unts 3. An up-to-date list of the declarations made pursuant to Article 287, as well as the order for those States that have provided a ranking of preference, is maintained by the Treaty Section of the Office of Legal Affairs of the United Nations. See .

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majority of the disputes referred to compulsory settlement under the Convention have, accordingly, been initiated as Annex vii arbitrations.31 With the exception of the Southern Bluefin Tuna Cases, initiated by Australia and New Zealand against Japan in 1999 shortly after the entry into force of the Convention, all of the arbitrations conducted pursuant to Annex vii have been administered by the pca.32 Strictly speaking, there is no requirement for this to be the case. The pca is not mentioned in the Convention, and Annex vii provides expressly only for the formation of the tribunal, leaving the question of a registry for the tribunal to determine within its general power under Article 5 of Annex vii to “determine its own procedure.” In practice, however, States and tribunals have proved reluctant to manage a complex inter-State proceeding without the assistance of an experienced registry. The pca thus offers the parties to arbitral proceedings the convenience of litigating at a permanently established institution, providing a neutral channel for communications, maintaining an archive of documents, offering access to the hearing facilities of the Peace Palace, arranging venues for proceedings

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As of the time of this writing, 18 disputes have been referred to Annex vii arbitration, although three were subsequently transferred to itlos by agreement of the Parties. Four proceedings were initiated directly with itlos, which has also handled a number of applications for the prompt release of vessels, an area over which it has automatic jurisdiction. itlos has also been called on to indicate provisional measures in six Annex vii ­arbitrations prior to the constitution of the tribunals and has issued two advisory opinions. No dispute has yet been referred to the icj pursuant to the dispute resolution provisions of the Convention, although the icj has handled a large number of cases involving the law of the sea initiated pursuant to special agreements or other instruments, such as the American Treaty on Pacific Settlement (the Pact of Bogotá) or optional clause declarations pursuant to the icj’s own statute. No dispute has yet been referred to special arbitration pursuant to Annex viii of the Convention. Case Concerning Land Reclamation by Singapore In and Around the Straits of Johor (Malaysia v. Singapore) (pca Case No. 2004-05); Barbados v. Trinidad and Tobago (pca Case No. 2004-02); Guyana v. Suriname (pca Case No. 2004-04); mox Plant Case (Ireland v. United Kingdom) (pca Case No. 2002-01); ara Libertad A ­ rbitration (Argentine Republic v. Ghana) (pca Case No. 2013-11); Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) (pca Case No. 2010-16); Atlanto-Scandian Herring Arbitration (Denmark in respect of the Faroe Islands v. European Union) (pca Case No. 2013-30); South China Sea Arbitration (Philippines v. China) (pca Case No. 2013-19); “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation) (pca Case No. 2014-02); “Duzgit Integrity” Arbitration (Malta v. São Tomé and Príncipe) (pca Case No. 2014-07); The “Enrica Lexie” Incident (Italy v. India) (pca Case No. 2015-28); Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation) (pca Case No. 2017-06).

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worldwide,33 managing the deposit for fees and expenses,34 and providing support throughout the proceedings to members of the tribunal, experts, parties, and their representatives. The effect of this support is both to streamline the proceedings and, ultimately, to reduce the parties’ costs by significantly lightening the tribunal’s administrative load. Accordingly, the introduction of the pca in the capacity of registry has generally been agreed on early in the proceedings, either directly between the States concerned or at the instance of the tribunal in its first communications with the parties. In those cases where a party has declined to respond to communications from the tribunal, the designation of the pca as registry has been by the tribunal, exercising its discretion under Article 5 to “determine its own procedure,” after seeking the views of the Parties. II Procedural Challenges in Recent pca Cases A Non-participation by a Party Non-participation in international proceedings is a rare phenomenon, given the consent-based nature of international arbitration and adjudication. There is a general assumption when parties have agreed to arbitration that, once a dispute arises between them, both parties will cooperate and actively p ­ articipate in the proceedings from the commencement of arbitration through to the 33

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Although the involvement of the pca provides access to the Peace Palace in The Hague, constructed for the pca in 1913, hearings in the majority of pca arbitrations are, in fact, conducted in other locations worldwide. In Annex vii arbitrations, while most hearings have been conducted in The Hague, the hearings in Barbados v. Trinidad and Tobago were conducted in London; the hearings in Guyana v. Suriname were conducted in Washington D.C. (at the headquarters of the Organization of American States); the first procedural meeting in Bay of Bengal Maritime Boundary Arbitration was held in Heidelberg; hearings in Chagos Marine Protected Area were conducted in The Hague, Dubai, and Istanbul; and the hearings in the Arctic Sunrise were conducted in Vienna. Meetings in the Annex V Timor Sea Conciliation were conducted in Canberra, Dili, Copenhagen, The Hague, Singapore, Sydney, and Washington, D.C. The pca maintains a network of host country agreements and facilities arrangements, intended to permit the ready organization of a hearing in any location that may be appropriate in the context of a particular case, and to grant similar privileges and immunities to participants as those that are provided under the pca’s Headquarters Agreement with the Netherlands. See B.W. Daly, E. Goriatcheva & H. Meighen, A Guide to the pca Arbitration Rules (2014) at pp. 62–63. Another potentially attractive feature of pca-administered arbitration for developing countries that are also contracting parties to the pca is the Financial Assistance Fund set up to help such States defray the costs of arbitration. The Fund, which has been accessed by a pca contracting party in at least one recent law of the sea arbitration, is further described in B.W. Daly, E. Goriatcheva & H. Meighen, A Guide to the pca Arbitration Rules (2014) at p. 151.

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implementation of the final award.35 It may be, however, that years or decades will pass between the date that consent to arbitration was given through the acceptance of a dispute resolution clause in a treaty and the time that an actual dispute arises. In such circumstances, a State may face practical obstacles or a political disinclination to participate in the proceedings for a concrete dispute, despite having agreed to accept the arbitration of disputes generally. In some situations, States have refused to participate in proceedings from the outset;36 in others they have only withdrawn from participation at a later phase when displeased with developments in the case.37 In the 19th and early 20th centuries, such non-participation might have brought an arbitration to an early close. The arbitration agreements of that era contained no mechanism to deal with a non-participating party. Indeed, the drafters of the 1899 Convention considered such devices unnecessary as it was considered nearly unthinkable that a State, having accepted an obligation to arbitrate, would ever fail to carry out the subsequent procedural steps.38 Over the course of the 20th century, the development of arbitral procedure sought to address this shortcoming and close the practical loopholes that had, in practice, too often served to frustrate the conduct of arbitration. Instruments such as the International Law Commission’s 1958 Model Rules of Arbitral ­Procedure39 and the UN Commission on International Trade Law’s 1976

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The same assumption applies in international commercial arbitration. See, e.g., Chartered Institute of Arbitrations, Practice Guideline on Non-Participating Parties (rev. November 2016). See, e.g., “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, paras. 7–19; South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, paras. 116–144. See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, icj Reports 1986, p. 14 at p. 17; Arbitration Between the Republic of Croatia and the Republic of Slovenia (pca Case No. 2012-04), Partial Award of 30 June 2016, para. 44. See for instance, the discussion in the course of the 1907 Hague Conference on whether a mechanism was needed for circumstances in which a State concluded an arbitration treaty, but refused to agree to the compromis then considered necessary to define the dispute for the purpose of any specific arbitration. J.B. Scott, The Proceedings of the Hague Peace Conferences: Translation of the Official Texts: The Conference of 1907, Vol. ii at pp. 71, 78, 112, 304, 523, 535, 584 (1921) (remarks by the delegates of the United States, France, Austria-Hungary, and Italy). On the mindset of participants in the 1899 and 1907 Hague Peace Conferences, see generally D.D. Caron, “War and International Adjudication: Reflections on the 1899 Peace Conferences,” 94 American Journal of International Law p. 4 (2000). “Model Rules on Arbitral Procedure with a General Commentary,” Yearbook of the International Law Commission, 1958, Vol. ii at p. 83 (the “ilc Model Rules”).

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Arbitration Rules40 effectively addressed the problem of non-participation by providing for the formation of a tribunal even in the absence of one party and expressly providing the non-participation would not prevent a tribunal from proceeding to render a binding award.41 The UN Convention on the Law of the Sea falls squarely within the modern tradition of dispute settlement with respect to non-participation. Unwillingness to participate cannot prevent proceedings from continuing. Nor can nonparticipation provide an escape from legal responsibility or alter the binding nature of any final decision rendered as a result of a dispute resolution process to which a State had previously consented. By becoming a party to the Convention, a State consents in advance to the binding dispute settlement provisions of Part xv which, as noted above, include options to refer disputes to the icj, itlos or arbitration under Annexes vii or viii. The icj Statute, itlos Statute, and provisions of Annexes vii and viii all anticipate scenarios where a respondent State does not appear or fails to defend its case. All these instruments expressly provide that the absence of a party shall not constitute a bar to proceedings and that the court or tribunal may proceed to issue a decision so long as it is satisfied of its jurisdiction and that the claim is well-founded in fact and law.42 These instruments also make clear that irrespective of participation, the outcome shall be “final and without appeal” and “shall be complied with by the parties to the dispute.”43 The non-participation of a party is not an occurrence unique to arbitration. In recent decades, the icj (and before it, the pcij) has also confronted situations in which a State declined to appear or otherwise to participate in 40 41 42

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United Nations Commission on International Trade Law, “Arbitration Rules,” G.A. Res. 31/98, Official Records of the General Assembly, Thirty-first Session, Supplement No. 17 (A/31/17), Chap. V, Sect. C (the “uncitral Arbitration Rules).” ilc Model Rules Arts. 3(2), 25; uncitral Arbitration Rules, Arts. 6(2)-(4), 7(2)-(4), 28. Article 9 of Annex vii to the Convention, entitled “Default of Appearance” provides: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” The text of Article 9 is modelled on Article 53 of the icj Statute. Article 28 of the itlos Statute is in similar terms, and Annex vii is applicable mutatis mutandis to Annex viii proceedings, by virtue of Annex viii, Article 4. The pca Optional Rules for Arbitrating Disputes between Two States, which were used in Croatia/Slovenia, similarly provide for failure to appear or to make a submission (Art. 28). United Nations Convention on the Law of the Sea, Annex vii, Art. 11, 10 December 1982, 1833 unts 3. See also icj Statute, Arts. 59, 60; itlos Statute, Art. 33.

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the proceedings.44 The icj summarised its cumulative jurisprudence on the Court’s obligations with respect to non-participation45 in the 1986 judgment in Military and Paramilitary Activities (Nicaragua v. United States): A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute. There is however no question of a judgment automatically in favour of the party appearing, since the Court is required … to “satisfy itself” that that party’s claim is well founded in fact and law … the Court must attain the same degree of certainty as in any other case that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence.46 The icj discussed the balance to be struck in cases of non-appearance, including when the non-appearing party may make informal communications. In 44

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See Denunciation of Treaty of November 2nd, 1865 (Belgium v. China), Order, 1927 PCIJ. (ser. A) No. 8 (June 18), p. 12; Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Judgment, 1939 PCIJ. (ser. A/B) No. 77 (Apr. 4), p. 64; Corfu Channel (United Kingdom v. Albania), Judgment, icj Reports 1949, p. 4; Anglo-Iranian Oil Co. (United Kingdom v. Iran), Judgment, icj Reports 1952, p. 93; Nottebohm (Liechtenstein v. Guatemala), Judgment, icj Reports 1953, p. 111; Monetary Gold Removed from Rome in 1943 (Italy v. France et al.), Judgment, icj Reports 1954, p. 19; Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment, icj Reports 1974, p. 3; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, CIJ. Reports 1974, p. 175; Trial of Pakistani Prisoners of War (Pakistan v. India), Order, icj Reports 1973, p. 328; Aegean Sea Continental Shelf (Greece v. Turkey.), Order, icj Reports 1976, p. 3; United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, icj Reports 1980, p. 3; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, icj Reports 1986, p. 14; Legality of the Use by a State of Nuclear Weapons in armed Conflict, Advisory Opinion, icj Reports 1996, p. 66; Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France), Order, icj Reports 1995, p. 288; Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain.), Judgment, icj Reports 2001, p. 40. icj Statute, Art. 53 (“(1) Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in in favour of its claim. (2) The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law”). Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, icj Reports 1986, p. 14 at pp. 24–25.

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this context, the icj observed that: “it is valuable for the Court to know the views of both parties in whatever form those views may have been expressed” because it “is especially incumbent upon the Court to satisfy itself that it is in possession of all the available facts.” On the other hand, the Court noted that “in a case of non-appearance neither party should be placed at a disadvantage” and thus it must devote “special care … to the proper administration of justice in a case in which only one party is present.”47 Similar considerations have been held to apply in Annex vii arbitrations in two recent cases at the pca involving non-participating States. The Arctic Sunrise Arbitration involved a dispute between the Netherlands and the ­Russian Federation concerning the boarding, seizure, and detention by ­Russia of the Arctic Sunrise, a vessel flying the Dutch flag, in Russia’s exclusive economic zone on 19 September 2013, and the subsequent measures taken by Russia against the Arctic Sunrise and the thirty persons on board the vessel. Early in the process, after the arbitration had been commenced and the ­Netherlands had sought provisional measures from itlos pending constitution of the arbitral tribunal, the Russian Federation sent a Note Verbale to itlos stating that “it does not accept the procedures provided for in Section 2 of Part xv of the Convention entailing binding decisions with respect to disputes … c­ oncerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.”48 Accordingly Russia did “not accept the arbitration proceedings proposed by the Kingdom of the Netherlands under Annex vii….” The ­Russian Federation subsequently confirmed to the pca that “[t]he Russian side confirms its refusal to take part in this arbitration and abstains from providing comments both on the substance of the case and procedural matters.”49 ­Russia thereafter did not participate in the arbitration at any stage.50 It did not appoint an arbitrator, submit written pleadings in response to those filed by the Netherlands, attend hearings, or advance funds requested by the tribunal toward the costs of arbitration. The other prominent example of non-participation is the South China Sea Arbitration, commenced by the Philippines in 2013 against the People’s ­Republic of China, which concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the classification of certain 47

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, icj Reports 1986, p. 14 at pp. 24–25. 48 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, para. 5. 49 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, para. 6. 50 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, para. 7.

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maritime features in the South China Sea, and the lawfulness of certain actions by China that the Philippines alleged to be in violation of the Convention and general international law. From the outset, China consistently and publicly rejected the Philippines’ recourse to arbitration and adhered to a position of “non-acceptance and non-participation in the proceedings.” Thus, China did not participate in constituting the tribunal, submit written pleadings, attend hearings, or advance any of the funds requested by the tribunal toward the costs of the arbitration. Throughout the proceedings, China rejected and returned correspondence, reiterating on each occasion “that it does not accept the arbitration initiated by the Philippines.”51 In both the Arctic Sunrise and South China Sea arbitrations, the participating party invoked Article 9 of Annex vii to the Convention “to request the tribunal to continue the proceedings and to make its award.” In both cases, the tribunals continued the proceedings and confirmed that, despite its non-­appearance, the respondent State remained party to the arbitration, with the ensuing rights and obligations, including that it would be bound under international law by any decision of the tribunal.52 The South China Sea tribunal noted that: Article 9 of Annex vii seeks to balance the risks of prejudice that could be suffered by either party in a situation of non-participation. First, it protects the participating party by ensuring that proceedings will not be frustrated by the decision of the other party not to participate. Second, it protects the rights of the non-participating party by ensuring that a tribunal will not simply accept the evidence and claims of the participating party by default.53 Non-participation thus imposes a dual “special responsibility”54 on a tribunal, requiring it (i) to ensure procedural fairness to both parties and (ii) to satisfy itself that it has jurisdiction and that the claims are well-founded in fact and law. 51 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para 116ff. 52 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, para. 10, South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 118; citing, amongst other sources, article 296(1) to the Convention, (providing that any decision rendered by a tribunal having jurisdiction under Section 2 of Part xv “shall be final and shall be complied with by all the parties to the dispute.”), Annex vii, Art. 11; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, icj Reports 1986, p. 14 at p. 24, para. 28; Arctic Sunrise (Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, itlos Reports 2013, p. 230 at p. 242, para. 51. 53 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 119. 54 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 129.

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With respect to procedural fairness, certain measures were undertaken in both cases to safeguard the procedural rights of the non-participating party. These included ensuring that all communications and materials in the arbitration were promptly delivered to the ambassador of the non-participating State in The Hague; granting the non-participating State equal time to submit written responses to pleadings; and inviting comments on procedural steps taken throughout the proceedings, including as to the appointment of experts and scheduling of hearings. During hearings, the non-participating party was given copies of transcripts and invited to comment on anything said during the hearings. Throughout the proceedings, the pca Registry staff were made available to embassy personnel of the non-participating State to answer informal questions of an administrative or procedural nature, and the tribunals formally reiterated that it remained open to the non-participating State to participate in the proceedings at any stage.55 In order to avoid prejudice to the procedural rights of the participating party, measures taken by both tribunals included conducting proceedings efficiently to avoid undue delay.56 Each tribunal invited the participating party to advance substitute payments towards the deposit held by the pca for managing costs of the arbitration. Such practice is universal in international arbitration, and ensures that one side’s refusal to contribute financially to the deposit for arbitration costs cannot be a means to frustrate the proceedings.57 55

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See South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 121; “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, para. 11. See also Arbitration Between the Republic of Croatia and the Republic of ­Slovenia, Final Award of 29 June 2017, paras. 191–205. South China Sea Arbitration (Philippines v. China), Rules of Procedure, Art. 10 (the Tribunal shall “conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the Parties’ dispute.”); see also Arctic Sunrise (Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, itlos Reports 2013, p. 230 at p. 243, para. 56 (a participating party “should not be put at a disadvantage because of the non-appearance of the [non-participating party]”). See also Article 6 of Annex vii to the Convention (“The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, in accordance with their law and using all means at their disposal”). In arbitration, parties pay the expenses of the tribunal and other costs of arbitration. This is set out in Annex vii, Art. 7 (“Unless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares.”) and the rule can be seen as far back as the 1899 Convention (Art. 57). All major rules of international arbitration provide for parties to pay the costs of arbitration, and it is standard for arbitral rules to include a provision for default payments in order to keep a party from frustrating proceedings. See, e.g., South China Sea Arbitration (Philippines v. China), Rules of Procedure, Arts. 31–33. China was

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Each tribunal also sought to ensure that the participating party was not deprived of the opportunity to address any specific issues that the tribunal considered to have been inadequately covered in that party’s initial submissions. Thus, the South China Sea tribunal introduced a process into Article 25 of its Rules of Procedure whereby the participating party would be invited to make a “supplemental written submission” in relation to matters identified by the tribunal. This supplemental submission would also be communicated to the non-participating party for any comments it might chose to make. This innovation drew on elements from Article 3 of the “Resolution on Non-Appearing States before the International Court of Justice,” adopted by the Institut du Droit International in 1991. The tribunal implemented the procedure by issuing a request for further written argument asking the Philippines to address 26 questions and later circulated further lists of questions in advance of and during both the hearings.58 Another perceived disadvantage that a participating party may face as a result of non-participation is being put in the position of “having to guess” the respondent’s counter-arguments and effectively having to “formulate arguments for both States.”59 In this respect, the Arctic Sunrise tribunal noted that “Russia’s non-participation in the proceedings has made the Tribunal’s task more challenging than usual.”60 In the South China Sea Arbitration, the tribunal recalled the practice of other international courts and tribunals of “taking notice of ­public statements or informal communications made by non-­appearing parties”61 and consulted communications from China’s ­officials, public statements, and the academic literature of individuals closely provided with an opportunity to comment on the draft Rules of Procedure, the tribunal requested China make payments towards the deposit and, upon China’s failure to do so, copied China on all requests to the Philippines to make default substitute payments. The Philippines did not claim for costs, as the Netherlands did in Arctic Sunrise.See “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on Compensation of 10 July 2017, paras. 35, 108–133. 58 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 125. 59 The Philippines expressed such a concern in its Memorial of 30 March 2014, para. 7.42. 60 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, para. 19. 61 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 127, ­Procedural Order No. 4 of 21 April 2015, p. 5, citing as examples “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, itlos Reports 2013, p. 230 at p. 243, para. 54; “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on Jurisdiction of 26 November 2014, para. 44; Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, icj Reports 1974, p. 3; Nuclear Tests (Australia v. France), Judgment, icj Reports 1974, p. 253; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, icj Reports 1978, p. 3.

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­associated with ­Chinese authorities.62 The tribunal observed that concerns about the Philippines having to “guess” China’s potential arguments were “to some extent alleviated, at least with respect to jurisdiction,” when China published a 93-­paragraph “Position Paper” in December 2014, shortly before the deadline fixed by the tribunal for any counter-memorial China might elect to file.63 China also sent the tribunal a total of six letters by way of its ambassador in The Hague. Some of these letters commented on procedural matters; others drew to the tribunal’s attention public statements made by the Chinese Ministry of Foreign Affairs. One such Ministry statement emphasised China’s right not to participate and acknowledged that “whether or not China accepts and participates in the arbitral proceedings, the Arbitral Tribunal has the obligation under international law to establish that it does have jurisdiction over the disputes.”64 That an Annex vii tribunal faced with a non-participating party has the obligation to satisfy itself of its jurisdiction is expressly noted in Article 9. Citing this obligation in Article 9, both the Arctic Sunrise and South China Sea tribunals stated that they would not simply adopt the arguments of the participating party.65 The South China Sea tribunal decided to treat China’s Position Paper and its other communications as equivalent to a plea that the tribunal lacked jurisdiction and thus bifurcated proceedings to address jurisdiction in a preliminary phase.66 Similarly, the Arctic Sunrise tribunal treated Russian statements in its diplomatic correspondence as constituting a plea that the tribunal lacked jurisdiction, which became the subject of a separate award.67 Finally, with respect to the obligation under Article 9 of Annex vii for tribunals to be satisfied of the legal and factual bases of the claims, both tribunals 62 63

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South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 126. South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 127, referring to “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,” 7 December 2014. South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 128, citing Ministry of Foreign Affairs, People’s Republic of China, Briefing by Xu Hong, Director-General of the Department of Treaty and Law on the South China Sea Arbitration Initiated by the Philippines (12 May 2016) available at . South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, paras. 129–130; “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on Jurisdiction of 26 November 2014, paras. 41–47. See South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, paras. 68–70; see also “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on Jurisdiction of 26 November 2014, paras. 41–47. See also “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on Jurisdiction of 26 November 2014, paras. 41–47.

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reiterated that there was no “default judgment” under Annex vii and that they would not simply accept the assertions, evidence, or expert opinions presented by the participating party without first testing them.68 Both tribunals posed questions to the parties on the merits of the claims at issue before, during, and after hearings and sought to discern the position and possible arguments from the perspective of the non-participating party.69 The South China Sea tribunal noted that nothing in Article 9 “operates to change the burden of proof or to raise or lower the standard of proof normally expected of a party to make out its claims or defences.”70 The rules of procedure for both cases provided that the tribunal “may take all appropriate measures in order to establish the facts.”71 As part of its analysis of the merits of the Philippines’ claims, the South China Sea tribunal first requested “additional historical and anthropological information” and “detailed geographic and hydrographic information” regarding numerous features in the Spratly Islands, which would be relevant to the classification of those features as fully entitled islands, rocks, low-tide elevations, or submerged reefs for the purposes of the Convention. The request led the Philippines to produce a lengthy expert report and a more detailed atlas of features.72 Second, the tribunal appointed a number of independent experts to report to it on aspects of the Philippines’ claims, including: (i) a hydrographic expert to assist in analysing geographic and hydrographic information and other technical data submitted by the Philippines, (ii) a team of coral reef ecologists to test claims about the impact of China’s artificial island building on the marine environment, and (iii) a navigational safety expert in connection with the P ­ hilippines’ claim that China law enforcement vessels had operated in ­violation of international safety protocols so as to create a serious risk of collision with Philippine ships.73

68 69

70 71 72 73

South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, paras. 129–142; “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on the Merits of 14 August 2015, para. 19. See, e.g., South China Sea Arbitration (Philippines v. China), collection of written responses to tribunal questions and hearing transcripts available at ; “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), tribunal questions and hearing transcripts available at . South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 131. South China Sea Arbitration (Philippines v. China), Rules of Procedure, Art. 22; “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Rules of Procedure, Art. 22. South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 132. South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para 133. See further discussion of technical experts at Section II.C below.

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Third, the tribunal invited the parties to comment on additional evidence concerning the physical condition of certain of the maritime features in the South China Sea of greatest importance to the Philippines’ claims. This evidence included certain contemporary materials publicized by the Taiwan ­Authority of China, which controls one of the principal features in the South China Sea that is also claimed by the People’s Republic of China.74 However, as the tribunal considered historic records (from before the features were subject of significant human modification) to be of greater legal significance, the parties were also invited to comment on a substantial quantity of historic geographic and hydrographic records, obtained by the tribunal itself from the archives of the United Kingdom Hydrographic Office and French colonial archives.75 Thus, in addition to its “thorough review of the materials placed before it by the Philippines,” the South China Sea tribunal recorded that it had sought to discharge its “special responsibility” under Article 9 “through obtaining independent expert input, reviewing other materials in the public domain, and inviting further comments from the Parties on those sources.”76 Similarly, the Arctic Sunrise tribunal recalled the steps it took to meet the requirement that it be satisfied that the Netherlands’ claim was well founded in fact and law. It posed questions to the witnesses from the crew of the Arctic Sunrise,77 sent questions to the parties in advance of the hearing, and for its final award on compensation, appointed independent experts on accounting and marine surveying.78 74 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 139. 75 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, paras. 139–141. 76 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, paras. 143–144. 77 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Transcript of Hearing on the Merits, Day 1, 10 February 2015. 78 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Award on Compensation of 10 July 2017, paras. 19–33. The Arctic Sunrise award records that the Russian Federation had communicated to the Tribunal a “position paper” published by its Ministry of Foreign Affairs six months after the hearing and just before the issuance of the merits award. The tribunal recounted that it notified the paper to the Netherlands, and the Netherlands made no formal application in response to the paper. The Tribunal took note of Russia’s statement that its communication “shall in no way be interpreted as … acceptance of or participation in the arbitration,” and bearing in mind that the paper was brought to the tribunal’s attention “at a very late stage,” the tribunal took no formal action in respect of it, noting in any case that “the relevant issues were addressed” in its award. “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Merits Award of 14 August 2015, para. 68. The timing of the paper was thus quite different from the Chinese Position Paper, which had coincided with the deadline for the Counter-Memorial and preceded the second round submissions and hearings on jurisdiction. In a pca-­administered

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Having considered some solutions to procedural challenges posed by the non-participation of parties to a dispute, we now turn to consider procedural challenges posed when non-parties seek to participate in a dispute resolution proceeding. .

B Intervention or Participation by Non-parties The Convention is a multilateral instrument with nearly universal membership. Although the disputing parties are the active participants in dispute resolution proceedings and they are the only ones bound by the decisions at the outcome of the process, questions concerning the interpretation and application of the Convention may be of broad interest to other States Parties. Disputes relating to the Convention may also be intensely political and of significant interest to the public, to business interests, or to non-governmental organisations. Among the Convention’s mechanisms for the compulsory settlement of international disputes, both itlos and the icj have established procedures for a third State to request to intervene in the proceedings.79 Annex vii to the Convention, in contrast, is silent on the question and neither expressly provides for, nor precludes, the intervention of a third State in the proceedings. While the possibility of intervention could readily be addressed in any rules of procedure agreed to by the parties, this has not formed part of the rules adopted in Annex vii proceedings to date. The permissibility of such an application would thus be subject to any rules of customary law or general principles applicable to the conduct of international proceedings and otherwise within the general discretion of the tribunal under Article 5 of Annex vii to “determine its own procedure, assuring each party a full opportunity to be heard and to ­present its case.” No Annex vii tribunal has yet to consider a formal application for intervention by a third State, but the possibility of such an application was evident in the context the South China Sea Arbitration, in which the other littoral States of South China Sea maintained a keen interest in the proceedings. The

79

Annex vii arbitration commenced by Ukraine in September 2016 concerning coastal State rights, the Russian Federation appointed an arbitrator, is represented by counsel, actively participated in the tribunal’s first procedural meeting and concurred in the adoption of Rules of Procedure which contain provisions for the timing and form of any objections to jurisdiction. See Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation), Rules of Procedure, preamble, Art. 10. Statute of the International Court of Justice, Arts. 62, 63; International Court of Justice, Rules of Court, Arts. 81–86 (1978); Statute of the International Tribunal for the Law of the Sea, Arts. 31–32; International Tribunal for the Law of the Sea, Rules of the Tribunal, Arts. 99–104 (2009).

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procedural considerations that could apply to any future such request may be usefully informed by the context of Annex vii and the procedures established in other instruments for arbitration pursuant to multilateral treaties. While Annex vii is silent on the possibility of intervention, it does recognize that a dispute may involve more than two States Parties to the Convention. Article 1 of Annex vii recognizes the possibility of multi-party disputes and Article 3(g)-(h) set outs a procedure for the formation of a tribunal in a dispute involving more than two parties. While Annex vii leaves the decision of how many parties are to be engaged in the arbitration to the party instituting the proceedings, the recognition that a dispute may also involve other parties would be in keeping with the possibility of such parties later intervening in the proceedings. More broadly, Annex vii exists within a menu of dispute resolution options available through Article 287 of the Convention. Nothing in either the Convention or its negotiating history suggests that the choice between itlos and the icj, on the one hand, and arbitration on the other was intended to substantively alter the possibility for other States Parties to the Convention to play a role in the proceedings. Beyond the Convention itself, there is broad support for the right of other States Parties to a multilateral treaty to intervene in dispute resolution proceedings initiated pursuant to that treaty. Article 56 of the 1899 Hague Convention codified such a right in the following terms: The Award is not binding except on the parties in dispute. When it concerns the interpretation of a Convention to which Powers other than those in dispute are parties, they shall inform all the Signatory Powers in good time. Each of these Powers is entitled to intervene in the case. If one or more avail themselves of this right, the interpretation contained in the Award is equally binding on them. This provision was considered among the “fundamental principles” of arbitral procedure that “merit general approval”80 and was repeated in Article 84 of the revised 1907 Hague Convention. Indeed, an early formulation of Article 5 of Annex vii, which provides for a tribunal’s general power to determine its own procedure, would have provided, unless the tribunal established otherwise, for the application of the procedural rules of the 1907 Hague Convention, including Article 84. While there are no records of the informal plenary at which 80

Third Commission, Report to the Conference, reproduced in J.B. Scott, The Proceedings of the Hague Peace Conferences: Translation of the Official Texts: The Conference of 1899 at pp. 139–140 (1920).

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Article 5 was revised, the principal commentary on the Convention concludes that the final, open-ended formulation remains open to a tribunal adopting rules that “may allow for the intervention of a third State having an interest in the settlement of the dispute, thus opening the possibility that the tribunal’s award might also be opposable to that third State.”81 While Annex vii itself is silent, the discretion of a tribunal to determine its own procedure may be guided by the acceptance by other bodies of intervention in proceedings concerning a multilateral treaty. Such a right to intervene in proceedings was considered self-evident during the preparation of the Statute of the pcij (which later formed the basis for the Statute of the icj) and incorporated from Article 84 of the 1907 Hague Convention without significant debate.82 The intervention of third States was also addressed by the International Law Commission in its consideration of arbitral procedure in the 1950s. As examined by the ilc’s rapporteur, the permissibility of intervention in arbitral proceedings depends fundamentally on the existence of a legal relationship among the States concerned, with intervention being generally accepted in the case of standing tribunals, pursuant to the Hague Conventions, or in the case of a multilateral treaty, and exceptional when the legal relationship underpinning an arbitration is purely bilateral in nature.83 An application for intervention in an Annex vii arbitration may also raise the question of whether a procedural right of intervention exists among the States concerned on the basis of the 1899 and 1907 Hague Conventions themselves. Both conventions set out a series of articles “On Arbitral Procedure” that “the Contracting Powers have agreed … are applicable to arbitration procedure, 81 82

83

M.H. Nordquist, et al., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V at p. 431 (1989). See Permanent Court of International Justice, Advisory Committee of Jurists, Proces-­ Verbaux of the Proceedings of the Committee, 16 June—12 July 1920 at pp. 642–643, 746 (1920); J.B. Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists, Report and Commentary, at pp. 131–32 (1920); W.M. Faraq, L’intervention devant la Cour Permanent de Justice Internationale, at p. 57 (1927); M.M. Shaw, ed., Rosenne’s Law and Practice of the International Court, 1920–2015 at pp. 1491–1496 (5th ed. 2017). The Statute of the pcij also introduced the possibility (in Article 62) of an application to intervene in proceedings on the basis of a legal interest, even in the absence of a multilateral treaty at issue among the States concerned. This alternative basis for intervention has, in practice, proved much more complex in the jurisprudence of the Court. See generally M.M. Shaw, ed., Rosenne’s Law and Practice of the International Court, 1920–2015 at pp. 1489–1562 (5th ed. 2017). See International Law Commission, “Report on Arbitral Procedure by Georges Scelle, Special Rapporteur,” para. 81, UN Doc. A/CN.4/18, reproduced in Yearbook of the International Law Commission: 1950, Vol. ii, p. 114 at p. 138.

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unless other rules have been agreed on by the parties.”84 These articles include Article 84 of the 1907 Convention and (and Article 56 of the 1899 Convention) on intervention and are, on their own terms, not limited to arbitrations conducted pursuant to the Hague Conventions.85 The relevance of these rules in the context of an Annex vii proceeding may thus turn on their interaction with the rules agreed between the Parties in Annex vii itself. In this respect, however, the drafting history of the 1899 Hague Convention indicates that the procedural rules of the Convention were intended to “fill[] up the gaps” in any later compromis or agreement to arbitrate concluded between the Parties where the States concerned “have not otherwise provided.”86 As such, they may be applicable in any inter-State proceeding in which the parties did not expressly agree to preclude intervention,87 although it would of course remain open to the parties to agree on a procedure in respect of third-party intervention once the issue materializes. While no application to intervene was ultimately made in the course of the South China Sea Arbitration, the issue was not absent from the proceedings. In April 2014, the tribunal received from Viet Nam’s Embassy to the Netherlands a Note Verbale stating that “Viet Nam’s legal interests and rights may be affected” by the arbitration and requesting that its embassy be furnished with 84 85

1907 Convention, Art. 51; see also 1899 Convention, Art. 30. Article 55 of the 1907 Hague Convention contemplates the formation of arbitral tribunals other than by selection from among the pca Members of the Court; Article 56 contemplates arbitrations by a sovereign or head of State. Neither provision would apply to an arbitration conducted pursuant to the 1899 or 1907 Convention itself. 86 As set out in the Report of the Third Commission to the 1899 Conference: “Such rules should be limited to fundamental principles. They could not be too detailed without being a hindrance and a danger. But within the just limits where it is convenient to accept them, they may render important service to the arbitral courts often called upon to act ex tempore. They may serve as typical rules to which it will be expedient to refer. They may aid in filling up the gaps in the compromis, which ordinarily formulate only a few and very incomplete rules. As they will also, under all circumstances, always retain their character as auxiliary rules, the wishes of the litigant parties may always over-ride them, modify them, or do away with them. They will not control the points which they cover except in the event and so far as the States have not otherwise provided.” Third Commission, Report to the Conference, reproduced in J.B. Scott, The Proceedings of the Hague Peace Conferences: Translation of the Official Texts: The Conference of 1899 at pp. 139–140 (1920). 87 Annex vii, of course, includes its own gap-filling procedure in the form of Article 5, and the various rules of procedure agreed to by the parties or adopted by Annex vii tribunals have likewise generally included gap-filling procedures. The possible application of any provision of the Hague Convention procedures may thus depend on the relative hierarchy of rules and gap-filling procedures agreed between the parties at different points of time and those adopted by a tribunal.

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copies of documents relevant to the proceedings. After inviting the parties’ comments, the tribunal, granted Viet Nam access to written submissions.88 Some months later, the tribunal received another Note Verbale from the Vietnamese Embassy with a “Statement of the Ministry of Foreign Affairs of Viet Nam for the Attention of the Tribunal” requesting that the tribunal give due regard to Viet Nam’s positions in support of the tribunal’s jurisdiction and in protest at China’s “nine-dash line” and other conduct. Viet Nam reserved “the right to seek to intervene if it seems appropriate and in accordance with the principles and rules of international law, including the relevant provisions of unclos.”89 The tribunal invited the parties’ views on the request, including as to possible intervention. The Philippines considered that the tribunal’s broad discretion on procedural matters encompassed the power to permit intervention, to accept Viet Nam’s statement into the record, and to take any steps it might consider appropriate to request information from Viet Nam.90 A letter from China’s ambassador, however, expressed China’s “firm opposition” to certain procedural steps, including “intervention by other States.”91 While permitting Viet Nam access to some written documents, the tribunal stated that it would address the permissibility of intervention in these proceedings “only in the event that Viet Nam in fact makes a formal application for such intervention.”92 Viet Nam’s statement was noted by the tribunal and was also included in the record by virtue of the Philippines having submitted it as an annex to its Supplemental Written Submission,93 but no request for intervention was ever made. A ­ ccordingly, the permissibility of formal intervention and the circumstances in which it would be permitted in an Annex vii arbitration remains a theoretical one.94 Ultimately, rather than intervene in the proceedings, Viet Nam became an “observer” in the South China Sea Arbitration. It was among nine States—along

88 89 90 91 92 93 94

South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, para. 49. South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, para. 54. South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, para. 64. South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, para. 64. South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, para. 65. South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, para. 70. A. Zimmermann, “International Courts and Tribunals, Intervention in Proceedings” in Encyclopedia of Public International Law, para. 1.

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with Australia, Brunei, Indonesia, Japan, Malaysia, Singapore, Thailand, and the United Kingdom—that made requests to attend the hearings and were permitted by the tribunal to send small delegations to observe the proceedings. In articulating this procedure, the tribunal determined that “only interested States parties to the United Nations Convention on the Law of the Sea will be admitted as observers” and declined a request from the United States to send an observer to the merits hearing.95 All observer delegations were provided with a set of the written submissions, informed of the hearing schedule, given copies of tribunal questions, and reminded that observers would not be permitted to make statements or participate in the hearings. Although separate from the question of intervention, the South China Sea tribunal did consider in its jurisdictional award whether the absence from the arbitration of other States that have claims to the islands of the South China Sea could have been a bar to the tribunal’s jurisdiction. The tribunal distinguished the case from past cases in which the involvement of a third party was found to be indispensable.96 Because the tribunal would not be ruling on sovereignty, it found that the rights of Viet Nam and other States did not need to be determined before it could proceed. The tribunal also recalled Viet Nam’s December 2014 Statement in which it expressed “no doubt that the Tribunal has jurisdiction in these proceedings.” The tribunal reiterated these findings in its Award of 12 July 2016, in which the tribunal also considered a last minute request from Malaysia that the tribunal show “due regard to the rights of Malaysia” albeit while emphasising that Malaysia was “not seeking to intervene in the proceedings.”97 The tribunal remarked upon the timing of Malaysia’s request, noting that Malaysia had had observer status for over a year with full access to the hearings and written submissions. Nevertheless, the tribunal invited the parties’ comments and took note of Malaysia’s expressed concerns. The tribunal recalled that Malaysia had not applied to intervene and as a non-party “is not bound by the outcome of the arbitral proceedings or any pronouncement on fact or law to be rendered by the Arbitral Tribunal.”98 In addition to the interest shown by member States to the Convention, the South China Sea proceedings inevitably drew the attention of various other bodies. During the same period that the Chinese Ambassador sent four l­ etters 95 96

97 98

South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 67. South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, paras. 179–188, citing Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom, and United States), Preliminary Question, Judgment, icj Reports 1954, p. 19 at p. 32; East Timor (Portugal v. Australia), Judgment, icj Reports 1995, p. 90; Larsen v. Hawaiian Kingdom, Award of 5 February 2001, 119 ilr p. 566. South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para 105ff. South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 637.

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to the tribunal members, the Registry also received various unsolicited statements and commentaries from Chinese associations and organisations pertaining to issues covered in the jurisdictional award.99 The tribunal noted that these statements “were not provided to the tribunal by the Chinese Government or any Party to the Convention” and “were concerned with matters of jurisdiction already decided by the Tribunal and did not offer to assist the Tribunal on issues in dispute in the present phase of the proceedings.”100 In the Arctic Sunrise Arbitration, Greenpeace International—the non-­ governmental organisation which operated the ship and whose personnel were arrested with it—sought to file an amicus brief “addressing the legal issues relating to international human rights law which may arise in the proceeding.” Having invited the views of the parties, the tribunal found “no sufficient reason” to grant the application.101 In the merits phase, however, Greenpeace crew members did have a chance to address the tribunal as witnesses regarding the unfolding of events aboard the ship. While Annex vii is silent as to “amici” applications, guidelines in other international arbitral contexts have been developed to assist tribunals in dealing with submissions from non-parties. For example, the uncitral Rules on Transparency suggest tribunals take into account, in determining whether to admit a submission, whether “the third person has a significant interest in the arbitral proceedings” and “the extent to which the submission would assist the arbitral tribunal in the determination of a factual or legal issue related to the arbitral proceedings by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties.”102 Additionally there are guidelines that the submissions be “concise,” “precise,” and “address only matters within the scope of the dispute.” A tribunal shall ensure that “any submission does not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party” and that “the disputing parties are given a reasonable opportunity to present their observations on any submission by the third person.”103 Such factors, amongst others, could similarly be taken into 99 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 104. 100 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 104. 101 “Arctic Sunrise” Arbitration (Netherlands v. Russian Federation), Procedural Order No. 3 (Greenpeace International’s Request to File an Amicus Curiae Submission), 8 October 2014. 102 See 2013 uncitral Rules on Transparency in Treaty-based Investor-State Arbitration, Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 17 (A/68/17), Annex i, art. 3; 2014. 103 See 2013 uncitral Rules on Transparency in Treaty-based Investor-State Arbitration, Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 17 (A/68/17), Annex i, art. 5; 2014 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, Official Records of the General Assembly, Sixty-ninth Session,

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account by tribunals in law of the sea cases when presented with relevant and timely submissions from non-parties. A final example of a non-party attentive to the progress of an arbitration is that of the Taiwan Authority of China, which currently occupies the largest of the Spratly Islands, Itu Aba. As noted above, the South China Sea tribunal “considered historical records concerning conditions on features in the Spratly Islands, prior to them having been subjected to significant human modification, to be more relevant than evidence of the situation currently prevailing.”104 Thus, although the tribunal fully considered the contemporary evidence provided by the Philippines, “as well as certain materials made public by the ­Taiwan Authority of China,” the tribunal had not itself sought additional materials on contemporary conditions. For the same reason, the tribunal explained, it had “not sought to take advantage of the Taiwan Authority of China’s public offer to arrange a site visit to Itu Aba.” In this respect, the tribunal further noted that China’s ambassador had “objected strongly to the possibility of any site visit to the South China Sea by the Tribunal” and that the Philippines had also acknowledged that a site visit “would present certain challenges.”105 Indeed, in cases where site visits are deemed by a tribunal to offer a potentially relevant and useful exercise in understanding technical evidence, site visits require extensive planning and active cooperation from both parties involved. Other means of understanding technical issues, such as the assistance of independent experts, may however be available regardless of party ­participation. Both site visits and technical experts are discussed in the next section. C

Technical Expertise and Fact-finding in Arbitrations Concerning the Law of the Sea Disputes relating to the law of the sea will frequently involve the consideration of potentially complex technical questions. Maritime boundary delimitations may hinge on the evaluation of cartographic or hydrographic evidence and require that the boundary be established with precision. Disputes relating to fisheries or the marine environment may depend on scientific evidence and

S­ upplement No. 17 (A/69/17), entry into force 18 October 2017. For a minimalist approach to ­non-party submissions, see icj Practice Direction xii (as amended on 20 January 2009 and 21 March 2013), providing for ngo submissions in advisory opinion cases, which do not form part of the case record but are considered to be simply material in the public domain, to be kept in a location in the Peace Palace and made available to the participants in the case. 104 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 142. 105 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 142.

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opinions. Even disputes relating to the operation of vessels or installations will involve the consideration of maritime rules and practices that are beyond the ordinary experience of most international lawyers. While judges and arbitrators specializing in the law of the sea have frequently developed some familiarity with technical matters, the breadth of issues that may arise in the application of a treaty as comprehensive as the Convention creates a frequent need for additional expertise. How the parties can best present technical matters to a tribunal and the steps a tribunal should take to uncover and understand technical facts are recurring questions in proceedings concerning the law of the sea. Typically, the parties appearing before an international tribunal will themselves retain experts and present a technical case comprised not only of documentary exhibits but also of expert reports to explain the relevant scientific materials. While such reports may be of great value to a tribunal, it will frequently be the case that, where a technical or scientific question is genuinely in dispute, the tribunal will be confronted with competing technical accounts that are both facially convincing. A number of tools and procedures thus exist to assist tribunals in critically assessing the evidence of party-appointed experts. At the most basic level, questioning party-appointed experts on the technical evidence they have presented can help to assess the differences between competing positions. In many national legal systems and in other fields of international arbitration, the cross-examination of experts by the opposing party and extensive questioning by the tribunal is routine. Courts in inter-State proceedings, however, have historically been somewhat reluctant to introduce extensive questioning, either of counsel or experts, at times going so far as to permit experts to present their views as counsel, responding under the control of the party to have appointed them.106 Arbitral tribunals in ­inter-State matters, which work with comparative flexibility and with benches of fewer members, have generally gone much further to address this issue. In the Indus Waters Kishenganga Arbitration—a highly-technical dispute involving ­questions of alpine river hydrology, sediment management in reservoirs, and the environmental effects of sediment loads and decreased river flows—the tribunal permitted the in-depth cross-examination of the party’s experts and 106 See B. Simma, “The International Court of Justice and Scientific Expertise,” in American Society of International Law, Proceedings of the Annual Meeting at pp. 230–233 (2012); Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, icj Reports 2010, p. 14 at p. 72, para. 167; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Joint Dissenting Opinion of Judges Simma and Al-Khasawneh, icj Reports 2010, p. 108 at p. 111, paras. 6–7; A. Riddell & B. Plant, Evidence before the International Court of Justice 339–343 (2009).

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itself engaged in extensive questioning. This cross-examination was heavily relied on in the tribunal’s ultimate decision on these issues.107 Even when cross-examination by the parties may be limited in duration, the evidence of experts can be tested by the tribunal posing questions directly to the experts during their oral testimony.108 In cases where a party fails to participate, such examination by the tribunal is indeed unavoidable. To make a hearing more focused, questions may be flagged to experts in advance of a hearing.109 This was done in the South China Sea Arbitration, in respect of the Philippines’ geographic and environmental experts. The tribunal sent questions to the parties about aspects of the Philippines’ expert evidence in ­advance of the hearing, during the hearing, and after studying some supplementary post-hearing materials submitted by the Philippines.110 The technique of setting post-hearing “homework” questions for party-appointed ­experts, with the possibility of recalling them for a further hearing, has also been endorsed by practitioners in other areas of arbitration.111 A potentially complementary procedure for tribunals to weigh opposing testimony, developed in the context of other fields of arbitration, is to request the party-appointed experts from each side to confer in advance of a hearing and identify the areas of technical disagreement for the benefit of the tribunal. This practice is set out in guidelines promulgated by the International Bar Association and the Chartered Institute of Arbitrators.112 It allows the experts 107 Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India), Partial Award, 18 February 2013, paras. 124, 516–522. 108 See, e.g., the questioning by judges of the scientific experts called by Australia and Japan in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Verbatim Record (corrected), icj Doc. cr 2013/9 (27 June 2013) at pp. 63–71; icj Doc. cr 2013/10 (27 June 2013) at pp. 30–33; and icj Doc. cr 2013/14 (3 July 2013) at pp. 49–60. 109 uncitral Rules 2010, Art. 28; J. Harrison, “Addressing the Procedural Challenges of Environmental Litigation in the Context of Investor-State Arbitration” in Y. Levashova, T. Lambooy & I. Dekker (eds) Bridging the Gap Between International Investment Law and the Environment (2016) 87 at 94. 110 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 135; the Philippines’ Written Responses to the Tribunal’s 13 July 2015 Questions; The Philippines’ Written Responses to the Tribunal’s Questions, November 2015. 111 See, e.g., N. Blackaby & A. Wilbraham, “Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration” (2016) 31:3 icsid Review 655 at 668. See also N. Kaplan, “Winter of Discontent,” (2017) 34 Journal of International Arbitration 3, p. 373 at pp. 381–383. 112 iba Rules on the Taking of Evidence in International Arbitration (2010), Art. 5(4); Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration (2007), Art. 6(1)(a).

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to identify issues on which they agree and reasons for any remaining areas of disagreement, which can help focus the issues to be addressed at the hearing.113 Similar expert conferences, with the involvement of the tribunal’s own appointed expert, were used in Barbados v. Trinidad and Tobago and Guyana v. Suriname, in each case in parallel with, rather than prior to, the principal hearing.114 There is no reason in principle why such conferences could not be used more frequently in Annex vii proceedings to the extent that a tribunal and the parties consider it useful. Arbitral tribunals may also appoint their own independent experts to test the testimony of party-appointed experts, and generally explain and clarify questions of a technical nature. There are well-known advantages and disadvantages to the use of tribunal-appointed experts in international arbitration. On the one hand, a tribunal can be assured that the opinion it receives is genuinely independent and responsive to questions that the tribunal wishes to have answered. It has also been suggested that it adds to the legitimacy of the award and is considered best practice in some other types of international adjudication.115 On the other hand, tribunal-appointed experts may add to the costs of the proceedings and may introduce delays if they are engaged later in the process than party-appointed experts and may be less immersed in the facts, a problem which can be avoided by appointing independent experts early in the process.116 Another perceived danger of appointing independent experts 113 B.W. Daly & F. Poon, “Technical and Legal Experts in International Investment Disputes,” in C. Giorgetti, ed., Litigating International Disputes, A Practitioner’s Guide (2014), p. 333 at pp. 368–273. 114 In Barbados v. Trinidad and Tobago, the experts reached agreement in conference on the coordinates of basepoints and the construction of an equidistance line. See R. Cleverly & S. Fietta, A Practitioner’s Guide to Maritime Boundary Delimitation at pp. 151–152 (2016). In Guyana v. Suriname, the tribunal expert discussed a number of technical issues with the parties and sought to clarify the datum used for various positions and other aspects of the parties’ technical submissions. 115 N. Blackaby & A. Wilbraham, “Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration” (2016) 31:3 icsid Review 655 at 664; J. Harrison, “Addressing the Procedural Challenges of Environmental Litigation in the Context of InvestorState Arbitration” in Y. Levashova, T. Lambooy & I. Dekker, eds., Bridging the Gap Between International Investment Law and the Environment (2016) p. 87 at pp. 94–95. 116 K. Sachs & N. Schmidt-Ahrendts, “Protocol on Expert Teaming: A New Approach to Expert Evidence,” in A.J. van den Berg (ed.), Arbitration Advocacy in Changing Times (2011) 135; N. Blackaby & A. Wilbraham, “Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration” (2016) 31:3 icsid Review 655 at 664. In The Abyei Arbitration (The Government of Sudan/The Sudan People’s Liberation Movement/Army) (pca Case No. 2008-07), the tribunal appointed experts before the need for their assistance could be

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is that the tribunal might delegate its decision-making function. To avoid this, the tribunal “must carefully consider the issues and not simply adopt the ­expert’s position unquestioningly.”117 A tribunal should thus be careful in framing the expert’s terms of reference to delineate the decision-making powers and consult the parties before finalising them terms of reference. In Annex vii arbitrations, the appointment of independent technical experts, particularly hydrographic experts, has become common practice. Typically, these appointments have been made pursuant to the Rules of Procedure adopted by Annex vii tribunals at the outset of the arbitration, in consultation with the Parties. In the pca’s practice, the tribunals in Guyana v. Suriname, Barbados v. Trinidad and Tobago, the Bay of Bengal Maritime Boundary Arbitration, and the South China Sea Arbitration all retained an independent hydrographer to support the work of the tribunal.118 Over the life of an arbitration, such an expert may play a variety of roles, including providing the tribunal with a formal written report on one or more technical issues that could be subject to comments by the parties (or even the cross-examination of the expert); acting as an informal technical “interpreter,” answering questions and explaining technical matters that arise from the parties’ written submissions and oral presentations; or, particularly in the case of boundary delimitations, assisting the tribunal in rendering and presenting its decision in a technically precise manner. In maritime boundary arbitrations, the technical calculations of the tribunal’s hydrographer have generally been appended to the tribunal’s award as a separate technical report, intended to assist the hydrographic departments of the governments concerned to implement the decision, which should be considered a best practice in delimitation cases.119 In the South confirmed, so as to ensure that, should the need for expert assistance arise, the tribunal would nevertheless be able to meet the short time limits imposed by the parties’ arbitration agreement. See Award of 22 June 2009, paras. 75–76. See also B.W. Daly, E. Goriatcheva & H. Meighen, A Guide to the pca Arbitration Rules (2014) at p. 117. 117 N. Blackaby & A. Wilbraham, “Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration” (2016) 31:3 icsid Review 655 at 664; J. Harrison, “Addressing the Procedural Challenges of Environmental Litigation in the Context of InvestorState Arbitration” in Y. Levashova, T. Lambooy & I. Dekker eds., Bridging the Gap Between International Investment Law and the Environment (2016) 87 at 96. 118 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 133; Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, paras. 15–17; Guyana v. Suriname, Award of 17 September 2007, para. 108, Barbados v. Trinidad and Tobago, Award of 11 April 2006, para. 37. 119 Poor execution of the technical aspects of certain judgments delimiting maritime boundaries has led to decisions that were de facto incapable of implementation, potentially leaving resources worth billions of dollars in dispute even after the decision had been rendered. See A. Riddell & B. Plant, Evidence before the International Court of Justice 348–349

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China Sea ­Arbitration, China’s non-participation in the proceedings also led to the tribunal’s hydrographic expert being formally tasked with assisting the tribunal with a “critical assessment of relevant expert advice and opinions submitted by the Philippines.”120 In light of the variety and importance of roles that a technical expert may play, it is critical that the parties be consulted in the selection of the expert and in the definition of his or her role.121 In Annex vii arbitrations (as well as other tribunals at the pca), the consistent practice has been to provide the parties with an opportunity to comment on the proposed expert’s curriculum vitae, statement of independence, and draft terms of reference before finalising the expert’s appointment. Comments received from the parties may lead to changes in the approach proposed. In the South China Sea Arbitration, for instance, the Philippines expressed a concern that certain issues relating to the status of rocks and islands under the Convention were both technical questions and matters of legal interpretation. The expert’s terms of reference were accordingly amended to include the stipulation that “the Expert shall respect that it is the Tribunal, and not the Expert, that makes any determination as to legal questions, in particular the application of Article 121(3) of the Convention.”122 At the same time, parties should not overly constrain the assistance that an ­expert may provide to a tribunal. While parties will understandably be interested to know the advice an expert is providing the tribunal, much of the value of an independent expert would, in many circumstances, be lost, for example, if he or she were restricted to communicating with the tribunal in writing. Indeed, the preparation of the award in a maritime boundary delimitation would be all but impossible if the tribunal’s expert hydrographer were not able to communicate freely with the tribunal in the preparation of its decision. (2009); C. Schofield & C. Carleton, “Technical Considerations in Law of the Sea Dispute Resolution,” in A.G. Oude Elferink & D.R. Rothwell, eds., Oceans Management in the 21st Century: Institutional Frameworks and Responses, p. 231 at pp. 239–249 (2004); T. Daniel, “Expert Evidence Before the icj,” Paper presented at the Third Bi-Annual Conference of ablos (2003), available at . 120 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 133. 121 The less transparent practice of appointing “experts fantômes” to assist a court or tribunal without the knowledge of the parties has been the subject of criticism in other fora. See Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, Joint Dissenting Opinion of Judges Simma and Al-Khasawneh, para. 14, icj Reports 2010; see also A. Riddell & B. Plant, Evidence before the International Court of Justice, 335–336 (2009); G. White, “The Use Of Experts By The International Court,” in V. Lowe & M. Fitzmaurice, eds., Fifty Years Of The International Court Of Justice: Essays In Honour Of Sir Robert Jennings 528–540 (1996). 122 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 58.

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In addition to an expert hydrographer who assisted the tribunal throughout the proceedings, the South China Sea Arbitration also involved the appointment of a team of three coral reef ecologists to “provide an independent opinion on whether the Chinese construction activities in the Spratly Islands have a detrimental effect on the coral reef systems and the anticipated duration of such effects.”123 This opinion was provided in the form of a written report on which the parties were invited to comment. In the course of the experts’ work, the parties were also invited to respond to a request for clarification from one of the tribunal-appointed experts and provide additional materials.124 Conscious that the experts’ conclusions, as well as other recent scientific studies, were at odds with China’s stated position, the tribunal directed its experts to include publicly available materials from China in their review of the factual record and scientific literature.125 This expert procedure provided an essential basis for the tribunal’s conclusion, “based on the compelling evidence, expert reports, and critical assessment of Chinese claims described above” that it had “no doubt that China’s artificial island-building activities on the seven reefs in the Spratly Islands have caused devastating and long-lasting damage to the marine environment.”126 Annex vii arbitrations conducted at the pca to date illustrate the variety of possible fields in which technical expertise may be sought, spanning subjects as diverse as hydrography, cartography, coral reef ecology, maritime navigational safety, marine surveying, and accounting.127 The need for such expertise was, indeed, anticipated by the drafters of the Convention. The Convention establishes that a number of lists of experts be kept with respect to “(1) fisheries, (2) protection and preservation of the marine environment, (3) marine 123 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, paras. 15, 84–86, 135, 136, 821, 848–849. For discussion of the appointment of other technical experts, including on maritime navigational safety, see paras. 88, 91, 133 and 138. See also Rules of Procedure, Art. 24. 124 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, paras. 93, 95, 848–850. 125 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 848. The tribunal also “sought out China’s position on the environmental impact of its construction activities, by reviewing statements of Chinese officials and scientists, by asking the Philippines and the Tribunal-appointed experts to locate and assess the claims by Chinese officials and scientists, and by directly requesting China to comment on a range of materials and questions about the alleged impact of the construction.” South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 981. 126 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, para. 983. 127 See also, for an example of a tribunal seeking external legal expertise on Dutch colonial law, Guyana v. Suriname, Procedural Orders No. 3, 4 and 5, referenced in Award of 12 September 2007, pp. 11–18.

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scientific research, and (4) navigation, including pollution from vessels and by dumping.”128 The lists are composed based on nominations by each State Party and maintained, respectively, by the UN Food and Agricultural Organization, the UN Environmental Programme, the Intergovernmental Oceanographic Commission, and the International Maritime Organization. The lists are foremost for consideration in constituting Annex viii special tribunals composed entirely of experts (which have so far gone unused), but courts and tribunals operating under Part xv of the Convention may also draw on these lists when relevant expertise is required.129 An alternative approach to the appointment by the tribunal of an independent expert is the inclusion of such an expert among the members of the tribunal. This approach was adopted under the 1960 Indus Waters Treaty between India and Pakistan and used in the pca’s recent Indus Waters ­Kishenganga A ­ rbitration.130 That case concerned the permissibility of India’s proposed Kishenganga hydro-electric project in India-administered Kashmir and its possible environmental impact on agriculture and hydro-electric projects in the Neelum valley in Pakistan-administered Kashmir. Under the procedure envisaged in the treaty, one of the seven tribunal members must be a “highly qualified engineer,” to be appointed by the Rector of Imperial College London or the Dean of the Massachusetts Institute of Technology in the absence of ­agreement ­between the parties.131 The engineer member of the tribunal d­ irected technical questions to the parties throughout the proceedings132 and was seen by the tribunal as underpinning its competence to address technical matters in dispute between the parties.133 Although the Indus Waters Treaty places the engineer member of the tribunal in a position of particular prominence, it would in fact be possible for the parties, which each make two a­ ppointments to the seven-member tribunal, to select an individual with technical expertise 128 United Nations Convention on the Law of the Sea, Annex viii, Art. 2, 10 December 1982, 1833 UNTS. 3. 129 See United Nations Convention on the Law of the Sea, Art. 289, 10 December 1982, 1833 UNTs. 3. 130 Indus Waters Kishenganga Arbitration (Pakistan v. India) (pca Case No. 2011-01), Partial Award, 18 February 2013, paras. 126–127, 160. 131 Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India), Partial Award, 18 February 2013, paras. 11, 14. The engineer member of the tribunal in the Indus Waters Kishenganga Arbitration was Professor Howard Wheater, appointed by the Rector of Imperial College. 132 See, e.g., Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India), Partial Award, 18 February 2013, para. 57. 133 Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India), Partial Award, 18 February 2013, paras. 486–487.

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for one of their appointments, potentially creating a tribunal with three engineers among its seven members.134 The inclusion of technical experts among the members of the tribunal was also the approach generally taken in historical boundary delimitations, where it was commonplace for tribunals to include a geographer and surveyor among their members; the shift to tribunals composed entirely of lawyers is in fact a relatively recent phenomenon, dating only to the 1970s.135 Should the parties to a dispute concerning the law of the sea wish to increase the prominence of experts within the proceedings, it would in fact be possible to implement such a configuration within an Annex vii tribunal.136 Annex vii provides only that the members of the tribunal should be appointed “preferably” from the list of arbitrators maintained by the UN Secretary-General and would not preclude parties from agreeing to a technical background for one or more members of the tribunal. Alternatively, the Convention envisages, in Article 289, another approach to elevate the provision of technical expertise to a court or tribunal acting under Part xv. Article 289 provides that: In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex viii, article 2, to sit with the court or tribunal but without the right to vote. This provision has its origins in the procedure for the appointment of technical “assessors” in the statutes of the pcij and icj.137 In particular, the requirement 134 See Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of India), Partial Award, 18 February 2013, para. 486. 135 See D. Rushworth, “Mapping in Support of Frontier Arbitration,” 4(2) Boundary and Security Bulletin, pp. 60–61 (1996). 136 Should the parties wish to constitute a tribunal composed entirely of arbitrators with a particular technical background, the procedure for “special arbitration” pursuant to Annex viii was constituted with this in mind. 137 Article 289 had its origins in a proposal by the United States that expressly copied the pcij concept of assessors. See Draft articles for a chapter on the settlement of disputes submitted by the United States of America, Art. 5, UN Doc. No. A/AC.138/97 (1971). The pcij procedure in turn was introduced during the drafting of the statute by a British proposal for the creation of specialized chambers for the consideration of labour disputes and transit and communications disputes. A.P. Fachiri, The Permanent Court Of International Justice 51–55 (1932). The same procedure was then simplified in the statute of the icj and implemented largely through Article 9 of the icj Rules. See A. Zimmermann , C. Tomuschat, &

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in Article 289 that no fewer than two technical experts be appointed appears to be derived from the relevant provision for the pcij, which required the appointment of four assessors. Article 289 has so far gone unused (as have the pcij and icj procedures for the appointment of assessors), with Annex vii tribunals preferring to appoint a single expert pursuant to provisions within their rules of procedure. The procedure remains available, however, should a dispute with an overwhelmingly technical character arise, or should parties wish to maximize the tribunal’s access to technical expertise within the proceedings.

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While much of the work of international adjudication involves the consideration of legal documents, the examination of specialized experts, and formal hearings in locations such as the Peace Palace, the disputes that give rise to such proceedings arise in a broader world and are not easily reduced to ­abstract principles. A distinct advantage of the comparative flexibility of international arbitration is the possibility of easily bringing the proceedings closer to the ­locations and activities underlying the dispute. This may occur through  the  organization of proceedings in venues other than The Hague or through site visits by a tribunal or its experts to locations relevant to the subject-matter of the dispute. Site visits have a long history in international arbitration and were ­expressly envisaged for fact-finding commissions of enquiry in Article 21 of the 1907 Hague Convention.138 Site visits are also expressly provided for by Annex vii to the Convention, as part of the parties’ duty to “facilitate the work of the tribunal.” Article 6 of Annex vii requires the parties, “using all means at their disposal” to “enable [the tribunal] when necessary … to visit the localities to which the case relates.” The first site visit in a pca arbitration took place in 1909, when the tribunal in the Grisbådarna Arbitration visited the waters adjacent to the coasts of ­Sweden and Norway in which the delimitation was to be undertaken. Over seven days, the tribunal followed the course of the boundary proposed by each party, visited a number of islands, inspected certain rocks, and observed the K. Oellers-Frahm, Eds., The Statute Of The International Court Of Justice: A Commentary 492–493 (2006); see also A. Riddell & B. Plant, Evidence Before The International Court Of Justice 335–336 (2009). 138 Site visits are also expressly provided for in the 2012 pca Rules of Arbitration, Art. 27(3). See also B.W. Daly, E. Goriatcheva & H. Meighen, A Guide to the pca Arbitration Rules (2014) at pp. 102–107.

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activity of fishermen and the location of lighthouses. A formal account of what was observed was maintained for each day of the visit and signed by the president of the tribunal and its secretary after receiving the comments and additions of the parties.139 More recently, site visits were conducted in the Indus Waters Kishenganga Arbitration and in two arbitrations pursuant to Annex vii: Guyana v. Suriname and the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India). In the Indus Waters Kishenganga Arbitration, two site visits were in fact conducted. In June 2011, the entire tribunal, accompanied by the pca registry and delegations from the parties, undertook a visit to each of the hydroelectric plants being constructed respectively by India and Pakistan on the ­Kishenganga/Neelum River in Kashmir on either side of the line of control. The tribunal inspected the construction works, received presentations from the engineers responsible for the construction, visited the river and surrounding areas, and were shown the equipment used for measuring the river’s flow levels.140 The tribunal was also able to assess the progress of construction, an issue of particular relevance to Pakistan’s application for interim measures, which was d­ ecided by order of the tribunal shortly after the visit.141 Pakistan, however, was concerned that a visit to the river in the summer months would not provide the tribunal with an accurate impression of flows within the Kishenganga/Neelum, which are dependent on glacial meltwaters and thus highly seasonal. Accordingly, a second site visit by a delegation of two members of the tribunal, accompanied by the pca registry and delegations from the parties, returned to the Neelum valley in February 2012, during the dry season. During this visit the tribunal’s delegation travelled through the valley by road, gaining an impression of the livelihoods of the local population, before observing the level of flow within the river at Pakistan’s Dudhnial gauging station and examples of lift irrigation using water from the river.142 The itinerary and all procedural aspects of both visits were agreed by the parties, and the pca 139 Recueil des comptes rendus de la visite des lieux et des protocoles des seances du tribunal arbitral, constitue en vertu de la convention du 15 mars 1908, pour juger la question de la delimitation d’une certaine partie de la frontiere maritime ente la Norvege et la Suede (1909). 140 Indus Waters Kishenganga Arbitration (Pakistan v. India), Procedural Order No 1, 21 ­January 2011, Art. 8.1; reproduced in Partial Award, 18 February 2013, para. 23. 141 See Indus Waters Kishenganga Arbitration (Pakistan v. India), Order on Interim Measures, 23 September 2011. 142 Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award, 18 February 2013, paras. 81, 86, n17.

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­maintained a video and ­photographic record of the proceedings that was provided to the Parties.143 Different approaches were taken to the two site visits conducted to date in arbitrations pursuant to Annex vii. In Guyana v. Suriname, the visit was undertaken in respect of a discrete question of fact, after the hearing had already concluded. The parties agreed that the land boundary terminus and the point of departure for the maritime boundary should be determined by reference to a concrete Marker “B,” left by a Mixed Boundary Commission on the bank of the Corentyne River in 1936; the parties disagreed, however, on the geographic coordinates for Marker “B” or the method for determining them. The tribunal resolved the impasse by dispatching its expert hydrographer, together with the pca registry and representatives of the parties, to locate Marker “B” and establish its position.144 This was accomplished, and the expert provided the tribunal and the parties with a written report outlining the steps taken and the measurements obtained. Both parties ultimately accepting the expert’s measurement of the position of the marker as dispositive.145 In the Bay of Bengal Maritime Boundary Arbitration, in contrast, a site visit was undertaken by the entire tribunal, together with the tribunal’s expert hydrographer, the registry, and delegations from the parties, following the ­parties’ written submissions but prior to the hearing. The tribunal conducted an aerial inspection of the coasts of Bangladesh and India, viewing the location of each basepoint proposed by either of the parties. The tribunal also visited the Raimangal Estuary, the site of the land boundary terminus (the location of which was in dispute between the parties), by ship and hovercraft.146 The itinerary and modalities of the visit were agreed with the parties and recorded in a procedural order issued by the tribunal.147 As with the visits in the Kishenganga proceedings, the pca maintained a video and photographic record of the visit, which was provided to the parties. Following the visit, the tribunal established a procedure for the parties to introduce portions of the site visit 143 Indus Waters Kishenganga Arbitration (Pakistan v. India), Procedural Order No 3, 10 May 2011; Procedural Order No. 7, 16 January 2012, Partial Award, 18 February 2013, paras. 36, 81–82. 144 Guyana v. Suriname, Award of 17 September 2007, paras. 111–122. 145 Guyana v. Suriname, Award of 17 September 2007, para. 309. 146 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, paras. 18–22. See also S. Fietta & R. Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation (2016), n 60. 147 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Procedural Order No. 1 of 28 August 2013.

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record as evidence in the proceedings.148 As noted in the tribunal’s award, the site visit assisted in confirming certain items including “the location, visibility, and protuberance of the base points located on the respective coastlines of Bangladesh and India identified by the Parties.”149 The visit did not, however, confirm the visibility of other basepoints located on low tide elevations. Although not conducted under the auspices of the pca, a site visit was likewise undertaken in 1976 by the tribunal in the Beagle Channel Arbitration, where the tribunal inspected the islands and waterways within the area to be delimited. As in the Grisbådarna Arbitration, the tribunal divided its time between the parties, using vessels provided by the navy of each country.150 A limited number of site visits have also been undertaken by the pcij in Diversion of Water from the Meuse,151 by the icj in Gabčíkovo-Nagymaros Project,152 and by the experts appointed by the icj in Corfu Channel153 and Maritime Delimitation in The Caribbean Sea and the Pacific Ocean.154 The evidentiary value of site visits and their role in the decision-making of the tribunals in question is not immediately apparent on the face of the awards rendered.155 In this respect, a distinction may be drawn between site visits intended to establish concrete facts through direct observation and visits intended to give the tribunal itself an impression of the location or circumstances of the dispute. Where the collection of specific technical information is required 148 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Procedural Order No. 3 of 20 November 2013. 149 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award, 7 July 2014, para. 263. 150 Beagle Channel Arbitration (Argentina/Chile), Award of 18 February 1977, riaa Vol. xxi, p. 53 at p. 72. 151 The Diversion of Water from the River Meuse (Netherlands v. Belgium) (Merits) pcij Reports, Series A/B No 69. 152 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, icj Reports 1997, p. 7, at pp. 13–14. See also icj Rules of Court, Art. 66. For a description of the parties’ expectations and the types of practicalities, record-keeping, scheduling, and cooperation that such a site visit entailed, see P. Tomka & S. Wordsworth, “The First Site Visit of the International Court of Justice in Fulfillment of its Judicial Function,” American Journal of International Law, Vol. 92, p. 133; S.M. Schwebel, “A Site Visit of the World Court” in Schwebel (ed.), Justice in International Law: Further Selected Writings (2011) at p. 69. 153 Corfu Channel (United Kingdom v. Albania), Judgment, icj Reports 1949, p. 4. The experts’ detailed report of their visit is appended to the Court’s judgement at pp. 151–162. 154 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), Order of 31 May 2016, ICJ Reports 2016, p. 235. 155 See, e.g., M.A. Becker & C. Rose, “Investigating the Value of Site Visits in Inter-State Arbitration and Adjudication,” Journal of International Dispute Settlement, Vol. 8(2), pp. 219– 249 (2016).

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or a visit will entail lengthy observation or technical work, it may be preferable for the visit to be carried out by an expert. For example, it could be both inefficient and unproductive for a tribunal composed exclusively of jurists to visit a site for the sole purpose of ascertaining the geographic coordinates of a survey marker, evaluating the bathymetry and currents within an estuary, or observing the status of a claimed low-tide elevation that may be detectable under tidal conditions that occur only infrequently. An expert, however, can undertake such a visit at much lower cost and with fewer difficulties in scheduling, taking the time necessary to acquire the needed data accurately. Experts undertaking such missions have consistently reported to the tribunal in writing,156 with the parties given the opportunity to comment on the expert’s observations and conclusions, thereby addressing due process concerns and ensuring that the parties and tribunal are all confronting the same evidence. Provided that the objectives of such a visit and the facts to be identified are carefully ­considered in advance, fact-finding visits by experts can be an effective tool to establish key facts that may be readily observable on the ground, but obscured through their presentation as part of the case of one party or the other. Visits intended to provide a tribunal with an impression of the location and circumstances of a dispute may be more difficult to evaluate and categorize. The value of such impressions, however, should not be underestimated. Those members of the tribunals in question to have commented publicly on site visits have generally spoken of them in highly positive terms. For example, following the icj’s visit in Gabčíkovo-Nagymaros, Judge Schwebel observed that “we gained a new dimension of insight into the case and what it means to the ­parties—more, I think, than we could have gleaned from confining the proceedings to The Hague.”157 Even where the visit itself does not feature h ­ eavily 156 See, e.g., Guyana v. Suriname, Corrected Report on Site Visit, 30 July 2007, available at . 157 S.M. Schwebel, “A Site Visit of the World Court” in S.M. Schwebel (ed.), Justice in International Law: Further Selected Writings (2011) p. 69. During the hearing in the Grisbådarna Arbitration, Dr. J.A. Loeff, the tribunal president recalled that “I dare say without fear of contradiction, that the Tribunal members are unanimous in recognizing the value of this visit, and that all those who took part in the visit have taken with them the memory of it having proved useful.” Recueil des comptes rendus de la visite des lieux et des protocoles des seances du tribunal arbitral, constitue en vertu de la convention du 15 mars 1908, pour juger la question de la delimitation d’une certaine partie de la frontiere maritime ente la Norvege et la Suede at p. 38 (1909). Commenting on the Beagle Channel site visit, Sir Gerald Fitzmaurice noted that “I have no doubt at all as to its great utility. Speaking for myself, it was not that one discovered anything startlingly new or unforeseen, but it enabled one to identify with the region, and to visualize its features in a way that only actual looking and seeing can ensure.” Beagle Channel Arbitration (Argentina/Chile), Award of 18 February

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in the reasoning of the tribunal’s ultimate award, having been able to see firsthand the locations in question may improve and deepen the arbitrators’ appreciation of the other evidence presented by the parties. This is particularly true in delimitation cases where a tribunal may benefit from having seen and appreciated an area before drawings lines through it. The limited direct reliance on site visits by tribunals in formulating their awards may also be explained by the ways in which tribunals have treated the status of site visits as evidence. While the report of an expert dispatched to establish particular facts will normally form part of the evidentiary record of the proceedings and be available to the tribunal and parties on equal terms, more complicated considerations apply when the tribunal itself visits an area. Tribunal site visits have routinely included representatives of both parties and may be conducted with varying levels of formality and record-taking, depending on the wishes of the parties and tribunals involved.158 A site visit will also usually involve viewing areas that are entirely under the control of one party or the other, where the opposing party may not be in a position to verify the authenticity of what is being shown or to respond immediately to what has been seen. For these reasons not every aspect of a visit formally constitutes evidence in the proceedings. Thus in the Indus Waters Kishenganga Arbitration, the tribunal specified in a procedural order that the visit should not be considered as forming part of the parties’ oral submissions and directed the parties to ­maintain a neutral tone in the course of any technical presentations.159 Prior to the second site visit, the Kishenganga tribunal reiterated that the purpose of the visit was to give the tribunal “a background impression of the relevant projects and areas surrounding the Kishenganga/Neelum River,” but recalled that the parties would be provided with a video record of the visit and would 1977, riaa Vol. xxi, p. 53 at p. 222. Following the visit to the Bay of Bengal, Judge Wolfrum observed that “I believe we have learned quite a great deal, and it was worth very much the effort.” Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Hearing Transcript, 9 December 2013 at p. 9. 158 The site visit conducted in the investment proceedings in Chevron & Texaco v. Ecuador considered the visit to be equivalent to an oral hearing and maintained a transcript of each portion of the visit considered to constitute a formal session, during which both parties were given the floor. Chevron Corporation (u.s.a.) & Texaco Petroleum Company (u.s.a.) v. The Republic of Ecuador, Track 2 Hearing: Shushufindi-34 Site Visit (7 June 2015), Aguarico-06 Site Visit (8 June 2015), Shushufindi-55 Site Visit (8 June 2015), Lago Agrio-02 Site Visit (9 June 2015) available at . At the same time, the instructions of the Chevron tribunal limited the parties to the discussion and presentation in situ of evidence already in the record. See Chevron Corporation (u.s.a.) & Texaco Petroleum Company (u.s.a.) v. The Republic of Ecuador, Track 2 Hearing: Shushufindi-34 Site Visit (7 June 2015) at pp. 96–97. 159 Indus Waters Kishenganga Arbitration (Pakistan v. India), Procedural Order No. 3 of 10 May 2011, reproduced in Partial Award of 18 February 2013, pp. 10–13.

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be free to submit evidence in conjunction with their remaining written submissions.160 In the Bay of Bengal Maritime Boundary Arbitration, the tribunal established a procedure for the parties to introduce any photographs or video segments from the visit into evidence, without, however, ascribing evidentiary value to the tribunal members’ informal observations or conversations.161 A visit by the tribunal itself may also be of particular value to the parties. Site visits, when they have occurred, have generally been proposed by one or both of the parties, rather than the tribunal; indeed in the Beagle Channel Arbitration, the tribunal itself was initially reluctant to undertake the visit, despite the preference of both parties that it occur.162 For the parties and their representatives, a site visit may give concrete form to a process that otherwise appears somewhat abstract and distant.163 In the course of the visit, the tribunal will have come to the parties to see and inspect, in their own territory, that which each party considers to be important to the resolution of the dispute. This may contribute to the acceptance that the tribunal has seen and understood the parties’ respective positions, regardless of whether the tribunal ultimately agrees on the relevance and importance of what is shown.164 In any given case it will be up to the parties and tribunal to decide whether a site visit is appropriate, whether its utility would justify the costs, and whether it would entail the collection of evidence, comprise formal oral submissions, or serve simply to provide a deeper understanding of the subjectmatter of the dispute. A tribunal should be conscious of the due process concerns that are i­nherent in permitting informal interactions with the parties and of the potential that a visit by an expert may constitute a better means to 160 Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award of 18 February 2013, para. 82. 161 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Procedural Order No. 3 of 20 November 2013. 162 Beagle Channel Arbitration (Argentina/Chile), Award of 18 February 1977, riaa Vol. xxi, p. 53 at p. 222. 163 In practical terms, a site visit may humanize the tribunal and build trust between the arbitrators and the government agents and representatives. While counsel are likely to be well familiar with the members of tribunal, the agents and other representatives of the governments involved may have met the tribunal only briefly, in the course of an initial organizational meeting focused principally on procedural matters. A site visit will thus often constitute the first direct opportunity for the government representatives to interact with the members of the tribunal and to do so in the informal setting that necessarily comes with travel to remote locations. While distinct from the purpose of the visit, such familiarity may also contribute to a constructive atmosphere for the remainder of the proceedings and to the parties’ trust in the tribunal’s judgment. 164 In particular, a site visit may facilitate the acceptance and implementation of an adverse award that would otherwise be vulnerable to political attack on the grounds that the tribunal had not even bothered to see for itself before rendering a decision.

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e­ stablish particular facts. For an effective site visit, a clear objective, p ­ lanning and  ­record-keeping are key, and it is helpful if these processes involve the input and cooperation of all parties.165 III Trends and Future Developments The remainder of this chapter examines a number of cross-cutting trends in international dispute resolution. The developments and patterns are apparent  in the pca’s arbitrations concerning the law of the sea, but are also apparent in other fields of international dispute resolution at the pca. These include growth in the frequency with which environmental matters underpin or form part of the disputes being referred to arbitration, increased attention to the publication of information concerning pca proceedings and the conduct of proceedings in a transparent manner, and a growing interest in nonbinding alternatives to arbitration. A Increase in Environmental Matters Many of the recent cases at the pca concerning the law of the sea have included significant elements relating to the treatment of the marine environment. This chapter has already touched on the environmental aspects of the South China Sea dispute, the importance to international environmental law of which is discussed in Maria Gavouneli’s chapter of this volume. Some commentators have suggested that the tribunal’s approach to the provisions within Part xii of the Convention and the application of other international environmental o­ bligations could have far-reaching future consequences for ­international environmental protection, including “implications for action on climate change.”166 Other cases concerning the law of the sea to involve environmental issues include the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), which arose following the establishment by the United Kingdom of a marine protected area surrounding the Chagos Archipelago, administered 165 See Indus Waters Kishenganga Arbitration (Pakistan v. India), Procedural Order No. 3, 10 May 2011, which provides guidance on the kinds of logistical issues to be taken into account as part of the planning, including arrangements to ensure security, a detailed itinerary, provisions for medical support, lists of the Parties’ delegations and experts that will address the arbitrators during the site visit, hotel arrangements, and modes of internal transportation. Special insurance for the site visit was also procured. For the second site visit, see Procedural Order No. 7. 166 See e.g., T. Stephens, “The Collateral Damage from China’s ‘Great Wall of Sand’: The Environmental Dimensions of the South China Sea Case,” (2017) Australian Yearbook of International Law, 34, 41–52; F.K. Phillips & S. Maciunas, “How a Fight Over South China ­Islands Led to Climate Win,” 12 July 2017 (Centre for International Governance Innovation).

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by the United Kingdom as the British Indian Ocean Territory, but claimed by Mauritius. Issues forming part of the dispute included the extent to which the United Kingdom was genuinely motivated by environmental considerations in declaring the marine protected area and the procedural rights of other States to be consulted when an environmental measure may implicate other rights and areas of law (in this case Mauritius’ right to the eventual return of the archipelago when no longer needed for defence purposes). Likewise, although principally concerned with Russian actions in its exclusive economic zone, the context of the Arctic Sunrise Arbitration was a protest by environmental activists against drilling in the Arctic. Tribunals tasked with the delimitation of maritime boundaries have likewise been called on to address environmental considerations. In the Bay of Bengal Maritime Boundary Arbitration, the tribunal was called on to address the implications for its boundary of Bangladesh’s highly unstable coastline and the likelihood that the coastal configuration would be substantially altered by future sea level rise. These decisions build on a body of inter-State arbitral awards at the pca that have established or applied key principles of international law relating to the preservation of the environment and sustainable development. The Iron Rhine Arbitration concerned Belgium’s claim to recommence use, under a 19th century treaty, of a historic railway line through the Netherlands in an area that had since been designated as a nature preserve. In ruling on the matter, the tribunal held that even historic treaties, concluded well before modern understandings of environmental protection, will be subject to interpretation in light of international environmental law.167 Likewise, in the Indus Waters Kishenganga Arbitration, the tribunal considered that the States’ well-­established obligations not to cause transboundary harm and their need “to manage natural resources in a sustainable manner” were applicable to the allocation of river flows under the 1960 Indus Waters Treaty, which does not itself address environmental issues.168 The trend of environmental issues appearing with ever greater frequency in the pca’s work is apparent across the types of dispute resolution proceedings administered by the pca.169 Amongst investor-State arbitrations currently 167 Iron Rhine Arbitration (Belgium v. Netherlands) (pca Case No. 2003-02), Award of 20 September 2005. 168 Indus Waters Kishenganga Arbitration (Pakistan v. India), Award of 18 February 2013, paras. 448–452. 169 See pca, Annual Report 2015, pp. 14–15; J. Levine, “Climate Change Disputes: the Paris Agreement, the pca and Prospects for Future Arbitrations” acica Review (June 2016), p.  35; J. Levine, “Adopting and Adapting Arbitration for Climate Change-Related ­Disputes – The Experience of the Permanent Court of Arbitration” in W. Miles, ed., Dispute Resolution and Climate Change: The Paris Agreement and Beyond (2017), Ch. 3.

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administered by the pca, a growing number likewise concern environmental issues. A recent nafta decision in Bilcon v. Canada, which concerned measures preventing the expansion of a stone quarry, sought to grapple with the extent of States’ regulatory freedom, where foreign investors are concerned, to protect the environment.170 Investments in renewable and low-carbon energy have also given rise to several pca arbitrations under bilateral and multilateral investment treaties, as in Windstream v. Canada under nafta and Antaris ­Solar et al. v. Czech Republic under the Energy Charter Treaty.171 Environmental issues have likewise featured prominently in arbitrations administered by the pca pursuant to contracts involves States and State entities, many of which have involved infrastructure projects and development projects, including oil exploration, waterworks, and sewerage systems.172 The pca has also administered nine confidential contract-based arbitrations connected with the Kyoto Protocol to the UN Framework Convention on Climate Change, relating to Clean Development Mechanisms and Joint Implementation Projects.173 The majority of these cases were initiated under the pca’s ­Optional Rules for Arbitration of Disputes Relating to the Environment and/or Natural Resources (the “pca Environmental Rules”), which were adopted in 2001 and were developed with a view to being included in multilateral ­environmental agreements.174 These Rules are also referred to in emissions trading contracts and have been adapted to suit specific requirements of parties in private sector 170 Bilcon of Delaware et al. v. Government of Canada, (pca Case No. 2009-04), Award on Jurisdiction and Liability of 17 March 2015. 171 Windstream Energy llc (u.s.a.) v. The Government of Canada, (pca Case No. 201322), Award of 17 September 2016; Antaris Solar GmbH (Germany) and Dr. Michael Göde (­Germany) v. The Czech Republic (pca Case No. 2014-01). 172 See for example, amongst the publicly listed contract disputes on the pca’s website, Maynilad Water Services, Inc. (Philippines) v. Republic of the Philippines (pca Case No. 2015-37); Ecuadortlc S.A. et al. v. Ecuador et al. (pca Case No. 2014-32). 173 See “pca Participation in COP21 and Conference on Climate Change Disputes,” Statement of the pca Secretary-General, pca Press Release, 8 December 2015. 174 For example, the pca Environmental Rules are referred to in Article 14 of the Protocol on Civil Liability and Compensation for Damage Caused by Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Water Courses and Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents (the Protocol is not yet in force). They are referred to in various agreements made pursuant to the Clean Development Mechanism, defined in Article 12 of the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (unfccc). They are also referred to in various agreements related to the Green Climate Fund, established pursuant to Article 11 of the unfccc. See J. Levine, “Climate Change Disputes: the Paris Agreement, the pca and Prospects for Future Arbitrations” acica Review (June 2016).

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contexts, such as the Appeals Body established by the Gold Standard Foundation and “The Compact” arising out of the UN Convention on Biological Diversity.175 A report by the International Bar Association’s Climate Change Justice and Human Rights Task Force in 2014 recommended that States and parties involved in environmental disputes have greater recourse to the pca as the preferred forum for arbitration.176 The Green Climate Fund, a mechanism set up by 194 States parties to the UN Framework Convention on Climate Change, which helps fund investment in low-emission, climate-resilient development projects, refers to the pca in a number of instruments, including contribution agreements, interim trustee arrangements, and standard conditions for grants.177 Cases that involve the exploitation of natural resources or the potential impact of activities on the natural environment understandably attract a level of 175 See J. Levine, “Adopting and Adapting Arbitration for Climate Change-Related Disputes – The Experience of the Permanent Court of Arbitration” in W. Miles (ed.), Dispute Resolution and Climate Change: The Paris Agreement and Beyond (2017). The International Emissions Trading Association has prepared standard terms and conditions referring to the pca Environmental Rules (). The Gold Standard Foundation operates a certification scheme for premium quality carbon credits. The Foundation provides certification, applying supplemental criteria on top of those required by the Kyoto Protocol and has developed an appeals procedure based on a modified version of the pca Environmental Rules. (). The Compact is an instrument signed by agrochemical companies which creates a system for binding arbitration so that a State can take legal action if the release of a living modified organism by a company is alleged to have damaged biological diversity. The Compact’s “Bylaws” are modified from the pca Environment Rules (see ). 176 International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption (2014), 140–142. The development of the Environmental Rules was amongst the reasons for this, in addition to the pca’s “expertise in disputes involving remedies for environmental damage, environmental preservation or sustainability, or rights to natural resources.” The pca Environmental Rules are based on the uncitral Arbitration Rules, but with certain modifications aimed at ensuring a balance is struck between the broader legal issues in a dispute, and the need to deal with the specialist substantive and/or procedural features of the case (see “Introduction” to the Rules). See also D. Ratliff, “The pca Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment” (2001) Leiden Journal of International Law 887–896; pca Environmental Rules (2001), Article 27(1); J.E. Viñuales, “Foreign Investment and the Environment in International Law: An Ambiguous Relationship,” (2009) 80 British Yearbook of International Law 244; J. Levine & N. Peart, “Procedural Issues and Innovations in Environment-Related Investor State Disputes,” in K. Miles (ed.) Research Handbook on Environment and Investment Law (forthcoming). 177 These refer either to arbitration under the pca 2012 Rules or under the uncitral Rules with the pca Secretary-General as appointing authority. ( see ).

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public interest. Alongside the trend in the number of pca cases involving environmental factors, is a trend of evolving expectations about transparency of proceedings. As discussed next, the experience with cases concerning the law of the sea has been in line with a willingness to embrace more transparency, while balancing concerns of the parties in maintaining confidentiality of sensitive information and protecting the integrity and efficiency of proceedings. B Increasing Transparency An attractive aspect of arbitration is procedural flexibility, including with respect to the transparency of the proceedings and the publication of documents. In the context of inter-State disputes, the timing and manner in which information is released may have domestic political implications which may affect reception of the outcome by State officials and local populations. Annex vii is silent with respect to the transparency or confidentiality of arbitral proceedings, and States are, in principle, free to agree to any degree of  transparency or confidentiality they consider appropriate. Where States may have different views as to the appropriate level of public disclosure, the matter would fall to the tribunal to decide under its general power, under Annex vii, article 5, to “determine its own procedure.” Those Annex vii tribunals to have faced such differences have generally sought to identify a compromise to provide appropriate transparency while also preserving the ability of the parties to speak freely and to present confidential information. In practice, the trend in the Annex vii proceedings to date appears to be one in favour of ever greater transparency.178 The pca has seen a consistent agreement to the publication of tribunals’ awards and procedural orders and to the eventual publication of the parties’ written submissions and hearing transcripts. With respect to the parties’ written submissions, the most common approach has been to delay publication until the hearing to which the submissions relate, an approach similar to the usual practice of the icj,179 which helps minimise polemical public commentary in response to submissions that may complicate the eventual resolution of the dispute. In several Annex vii 178 This is consistent with trends toward greater transparency in other types of cases. See J. Levine & N. Peart, “Procedural Issues and Innovations in Environment-Related Investor State Disputes,” at Section 2.1 in K. Miles (ed.) Research Handbook on Environment and Investment Law (forthcoming). 179 See M. Shaw, ed., Rosenne’s Law and Practice of the International Court: 1920–2015, Vol. iii, pp. 1290–1294 (5th ed., 2016); Fisheries Case (United Kingdom v. Norway), Pleadings, Vol. iv, p. 629 (Letter of 15 February 1950); Asylum Case (Colombia/Peru), Pleadings Vol. ii, pp. 224–225 (Letter of 15 February 1950).

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arbitrations, however, and in particular in cases involving a non-participating respondent, the publication of the parties’ written submissions and transcripts of oral arguments has been further delayed and effected only at the close of the proceedings with the publication of the tribunal’s final award. Practice with respect to the transparency of hearings, however, is more varied. In the majority of Annex vii arbitrations, hearings have been closed to the public, with only a transcript subsequently made public. Several recent proceedings, however, have taken further steps. In the South China Sea Arbitration, delegations from a number of interested States were granted observer status and permitted to attend hearings that were otherwise closed to the public.180 In the Enrica Lexie Arbitration (Italy v. India), the hearing was conducted openly, with interested persons able to view the proceedings on screens in an adjacent room of the Peace Palace or through a live webcast.181 In the Timor Sea Conciliation (Timor-Leste v. Australia), the parties’ opening statements were webcast live, while the remainder of the proceedings were carried out in closed session.182 Finally, tribunals in recent pca proceedings have made increasing use of press releases to ensure accurate reporting and manage public perceptions of the case.183 Such press releases may provide updates regarding procedural developments where the underlying documents themselves have not yet been 180 As noted above, delegations from Australia, the Republic of Indonesia, Japan, Malaysia, Singapore, the Kingdom of Thailand, and the Socialist Republic of Viet Nam were permitted to attend the hearing as observers. The United Kingdom was granted observer status, but ultimately elected not to attend the hearing. A request from the United States to attend the hearing, however, was denied on the grounds that it was not a party to the Convention. 181 A similar approach was taken in mox Plant (Ireland v. United Kingdom), where the hearing in the Peace Palace was opened to the public. See mox Plant (Ireland v. United K ­ ingdom), Press Release dated 2 June 2003. The tribunal in The Abyei Arbitration (The Government of Sudan/The Sudan People’s Liberation Movement/Army) was the first to webcast proceedings live, and the tribunal in Arbitration Between the Republic of Croatia and the Republic of Slovenia issued its Final Award via webcast and a public ceremony. 182 Video of the opening session of the conciliation proceedings remains available on the pca website at . 183 See, e.g., South China Sea Arbitration, Rules of Procedure, 23 August 2013, Art. 16 (“1. The existence of this arbitration shall be public. The Registry will identify on its website the names of the Parties, the Arbitral Tribunal, and the agents and counsel for the Parties, and will publish such further information and documents, including procedural orders, rules of procedure, written pleadings and transcripts of oral hearings, as may be directed by the Arbitral Tribunal. 2. The Arbitral Tribunal may, from time to time, direct the Registry to issue press releases concerning the status of the proceedings”).

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made public and have endeavoured to set out the content of tribunals’ decisions and awards in terms understandable to the general public, occasionally with input from the parties themselves. C Increase in Use of Alternative Methods of Dispute Resolution While the administration of arbitration proceedings remains the principal ­activity of the pca, the organisation was established to support States in the resolution of international disputes more broadly. In addition to establishing the pca, the 1899 Hague Convention addressed the role of good offices and mediation and the operation of international commissions of enquiry.184 ­Indeed, one of the first proceedings under the 1899 Hague Convention was the commission of enquiry established in the 1904 Dogger Bank Case (discussed above). Conciliation, as a form of inter-State dispute resolution, developed out of the procedures for commissions of enquiry and sought to combine the factfinding of such commissions with recommendations for the potential resolution of the dispute.185 Under the League of Nations system of the inter-war years, States party to a dispute not considered suitable for arbitration or judicial settlement could submit the dispute to enquiry by the Council of the League, which would “endeavour to effect a settlement of the dispute” and otherwise publish “a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto.”186 Sweden and Norway sought to complement this procedure through the institution of conciliation commissions created by the Parties (thereby avoiding the dominance of the great Powers in the League Council), and in 1922 the League adopted a resolution encouraging the creation of bilateral conciliation commissions.187 In parallel, Switzerland initiated a policy of including conciliation in its bilateral treaties on the resolution of disputes.188 In short order, conciliation provisions came to be found in many of the dozens of bilateral

184 See 1899 Convention, Articles 2–8 (Good Offices and Mediation); 9–14 (International Commissions of Inquiry). 185 See generally S.M.G. Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation (2008); C. Tomuschat et al. (eds.) Conciliation in International Law (2016). 186 Covenant of the League of Nations, Art. 15. 187 See C. de Visscher, «La Procédure de Conciliation Devant la Société des Nations,» 4(1) Revue de Droit International et de Legislation Comparée, p. 21 (1923). 188 S.M.G. Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation, pp. 82–84 (2008).

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conventions for the settlement of disputes concluded between States in the 1920s and 1930s.189 Bilateral treaties providing for conciliation fell out of favour by the middle of the twentieth century. Conciliation, however, came to play a significant role in a number of multilateral conventions, as a compromise method of dispute resolution between those States strongly committed to the compulsory resolution of international disputes and those opposed to any form of binding settlement. Thus, the 1969 Vienna Convention on the Law of Treaties provides for compulsory conciliation for disputes relating to the interpretation of that portion of the Convention concerning the invalidity, termination, and suspension of treaties.190 Compulsory conciliation was similarly incorporated into the UN Convention on the Law of the Sea for those difficult issues, such as maritime boundary delimitation, in respect of which States Parties are permitted by the Convention to opt out of binding dispute settlement.191 In December 1995, the UN General Assembly adopted a set of Model Rules for use in 189 See generally M. Habicht, Post-War Treaties for the Pacific Settlement of International Disputes (1931). In its early years of activity, the pca provided support to three conciliation commissions involving the governments of Denmark and Lithuania, France and Switzerland, and Greece and Italy, as well as a number of commissions of enquiry. See P. Hamilton, et al., eds. The Permanent Court of Arbitration: International Arbitration and Dispute Resolution – Summaries of Awards, Settlement Agreements and Reports, pp. 285–293. 190 Vienna Convention on the Law of Treaties, Art. 66, 23 May 1969, 1155 unts 331. Regarding the circumstances leading to the inclusion of the compulsory conciliation in the Convention, see I. Sinclair, The Vienna Convention on the Law of Treaties, pp. 226–233 (1984). The list from which conciliators are to be selected, however, has been sadly neglected by the States Parties to the Vienna Convention. As of the time of this writing, only 11 States had nominated conciliators; of those nominations, all but four were made over 15 years ago and a number of the individuals in question have since passed away. See Vienna Convention on the Law of Treaties, Status, available at . 191 United Nations Convention on the Law of the Sea, Arts. 297, 298, Annex V, 10 December 1982, 1833 unts 3. Although more extensive than the list of conciliators maintained pursuant to the Vienna Convention on the Law of Treaties, the list of arbitrators and conciliators under the Law of the Sea Convention has also been neglected by the majority of States Parties. Only 41 States Parties have nominated arbitrators or conciliators, and many of those nominations are dated or in some cases involve individuals who have since passed away. In contrast to the Vienna Convention procedure, however, disputing States are only encouraged—and not required, except with respect to the chairperson—to select conciliators from the list maintained pursuant to the Convention. In the Timor Sea Conciliation, none of the members of the Commission were selected from the Convention list and the Parties agreed between them (as permitted by Article 10 of Annex V) to modify the procedure for the selection of a chairperson and to appoint an individual not included in the Convention list.

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inter-State conciliation.192 The following year, in July 1996, the pca adopted its own Optional Conciliation Rules.193 The conciliation provisions of Annex v to the Convention went unused for the first 22 years of the Convention’s life, but have recently been brought into operation in the Timor Sea Conciliation between the governments of TimorLeste and Australia. These proceedings were initiated on 11 April 2016 in relation to the delimitation of a maritime boundary between the two States in the Timor Sea. In 2002, Australia had exercised its right pursuant to Article 298 of the Convention to exclude the delimitation of maritime boundaries from binding dispute settlement. Article 298 provides that “a State having made such a declaration shall … accept submission of the matter to conciliation.” The Conciliation Commission was established on 25 June 2016 under the auspices of the pca. Although the Timor Sea proceedings remain ongoing as of the time of this writing, the Commission has already taken a number of steps that may be relevant to the conduct of future proceedings pursuant to Annex v to the Convention. At the outset, the Commission was confronted with an objection by ­Australia to its competence, on the grounds both that the two governments had agreed in another treaty to a “moratorium” on dispute resolution procedures and that Timor-Leste had failed to fulfil the preconditions to dispute resolution under the Convention. The Commission upheld its competence in a decision issued on 19 September 2016.194 In so doing, the Commission was called on to interpret the application of the one-year deadline provided for in Annex v and held that, where the competence of a commission is challenged, the time limit should be understood to run only from the point that the commission’s competence is established. In consultation with the Parties, the Commission adopted rules of procedure that draw from both the UN Model Rules and the pca Optional Conciliation Rules and has since carried out a series of bilateral and ex parte meetings with the Parties to develop confidence building measures, explore the contours of the Parties’ dispute, and discuss possible resolutions.195 192 United Nations General Assembly, Resolution 50/50, United Nations Model Rules for the Conciliation of Disputes between States, UN Doc. A/RES/50/50 (29 January 1996). 193 See pca Optional Conciliation Rules and also the pca’s Optional Rules for Conciliation of Disputes Relation to Natural Resources and the Environment, both available at . 194 Timor Sea Conciliation (Timor-Leste v. Australia), Decision on Competence, 19 September 2017, available at . 195 See the various press releases issued by the Conciliation Commission, available at .

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This first example of recourse to compulsory conciliation under the Convention on the Law of the Sea comes at a time of increased attention generally to the dispute resolution provisions of the Convention. It also comes at a time when the pca has seen a significant increase in the attention given to ­conciliation in other contexts, including several other recent conciliations at the pca. One 2013 conciliation at the pca concerned a hydro-electric power plant expected to result in the reduction of greenhouse gas emissions and therefore to qualify as a project under the Kyoto Protocol. The dispute was originally brought pursuant to the pca Environmental Rules for arbitration but moved, by mutual consent, to conciliation under the pca Environmental Rules for Conciliation. The parties ultimately reached an amicable settlement. Another conciliation in 2014 brought under the 1980 uncitral Conciliation Rules concerned a dispute between an ngo and an international organisation arising from a contract for the implementation of a domestic project in Africa.196 The parties enlisted the assistance of the pca in connection with the appointment of the conciliator and requested pca administrative assistance, as foreseen under Article 8 of the uncitral Conciliation Rules. The parties reached an amicable settlement based on a report prepared by the conciliator after receipt of written submissions and a meeting at the pca’s headquarters in the Peace Palace (conducted in French). A third conciliation, conducted in Spanish in 2016, involved a construction contract between a private company and a public institution, in which the pca provided administrative support and helped appoint the conciliator. The case was resolved within a few months.197 This increase in recourse to conciliation at the pca is in line with growing embrace of conciliation in the context of commercial, trade, and i­nvestmentrelated matters. A number of new instruments have sought to promote the use of conciliation and mediation in these contexts as an alternative to arbitration.198 196 International Criminal Court, Trust Fund for Victims, Programme Progress Report 2015, at 33, available at . 197 Consorcio Sogeosa-Tilmon (Costa Rica) c. El Instituto Tecnológico de Costa Rica (Costa Rica) (pca Case No. 2016-06) (uncitral Conciliation Rules 1980). 198 See, e.g., International Bar Association, iba Rules for Investor-State Mediation, 4 October 2012, available at ; Energy Charter Conference, Guide on Investment Mediation, 19 July 2016, available at . See also J. Kalicki, “Mediation of Investor-State Disputes: Revisiting the Prospects,” Kluwer Arbitration Blog, 14 June 2013; S. Constain, “Mediation in Investor-State Dispute Settlement: Government Policy and the Changing Landscape,” 29(1) (2014) icsid Review 25, 38; International Mediation Institute, “Investor-State Mediation

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The pca has also been called on to facilitate other forms of dispute settlement procedures, such as appeals processes and review panels, including in the context of oceans and fisheries. One example is the review mechanism associated with the Southern Pacific Regional Fisheries Management Organization (sprfmo). sprfmo has a Commission tasked with a number of functions, including the adoption of conservation and management measures with regard to particular fish stocks under threat of over-exploitation. Decisions of the Commission become binding after 90 days unless a member of the Commission raises an objection and thereby triggers the review process.199 In 2013, a sprfmo review panel was formed to consider an objection by the Russian Federation to the established shares of a total allowable catch of the Chilean jack mackerel. The pca assisted the review panel to tailor rules to conduct the procedure at low cost and within tight timeframes. The proceedings, conducted in Russian, English, Spanish, and Chinese, were completed within a period of six weeks at a cost of less than eur 100,000. A full record of the case, including the findings and recommendations of the panel and audio records of the hearings, was made publicly available.200 An entry on the sprfmo website dated 7 August 2013 indicates that the Russian Federation confirmed its commitment to follow the Panel’s recommendations.201 Task Force,” available at www.imimediation.org/about-imi/who-are-imi/investor-state-­ mediation-task-force/); C. Tomuschat, R.P. Mazzeschi & D. Thürer (eds.), Conciliation in International Law (Brill Nijhoff, 2016). There are also examples of States agreeing to provide for conciliation within the disputes clauses of new investment protection treaties or free trade agreements. See, e.g., Article 8.38(1) of the Eurasian Economic Union– Viet Nam fta; Egypt-Mauritius bit (2014), Art. 10(1); and the proposed Mediation Mechanism in Annex 6 of the Investment Protection portion of the European Union– Singapore Free Trade Agreement. (available at trade.ec.europa.eu/doclib/docs/2018/ april/tradoc_156723.pdf>). 199 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Art. 17, Annex ii. See further S. Grimmer & N. Peart, “Pro Bono in I­nternational Proceedings at the Permanent Court of Arbitration,” (2015) 3 Pro Bono Committee News: Newsletter of the International Bar Association Public and Professional Interest Division, 11–12. 200 Review Panel established under the Conve149ntion on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (pca Case No. 2013-14), full case record available at pca-cpa.org/en/cases/33/>. 201 See spfrmo website entry at www.sprfmo.int. In some inter-State arbitrations involving law of the sea, States have provided for recording the steps taken in compliance with an award. In this respect see pca 2012 Arbitration Rules, Article 34(7), which provides that “in cases involving only States, the parties shall communicate to the International Bureau the laws, regulations, or other documents evidencing the execution of the award.” pca Arbitration Rules 2012, Article 34(7). This text was inspired by Article 22 of the 1899 Hague Convention and Article 43 of the 1907 Hague Convention but finds no equivalent in the

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The case examples described above show that dispute resolution proceedings need not follow one particular model, and that alternatives to arbitration may be apt. In the context of the law of sea, many of the most intractable disputes, including those in respect of many undelimited maritime boundaries, are precisely the disputes that States have elected to exclude from judicial or arbitral settlement under the Convention. Interest in conciliation and other non-binding processes can be expected to continue to grow in coming years. IV Conclusion This volume seeks to examine the challenges facing the law of the sea and the extent that the Convention has succeeded in addressing a globalising environment and the complex interactions of governmental and non-governmental actors in maritime spaces. Like any treaty, the Convention is subjected to the greatest stresses when disputes arise among the contracting parties as to its interpretation and implementation. Correctly anticipating that no instrument as expansive and multifaceted as the Convention could conceivably address the range of circumstances in which it might be called into application, the drafters of the Convention ensured that their creation would include some of the most comprehensive and robust procedures for the compulsory settlement of disputes of any major multilateral treaty of the modern era. The Convention having been in force for over 20 years, the international community now has the benefit of a substantial body of practice in the use of its provisions for the settlement of disputes, much of it in the form of a series of decisions rendered by arbitral tribunals acting pursuant to Annex vii to the Convention. These decisions have sought to clarify the extent of the jurisdiction of dispute resolution bodies under Part xv of the Convention and have been called on to interpret many of the Convention’s key provisions. Tribunals in these proceedings have also been called on to address a wide variety of procedural challenges, such that there is now a well-developed set of precedents uncitral Rules or the icsid Convention. The provision “aims to encourage compliance, and facilitate the creation of a record of the actions taken by States in execution of arbitral awards.” B.W. Daly, E. Goriatcheva & H. Meighen, A Guide to the pca Arbitration Rules (2014) at p. 135. See also orders to report back to Tribunal on implementation of provisional measures in Indus Waters Kishenganga Arbitration (Pakistan v. India), Interim Measures Order, 23 September 2011, para. 152 and Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award, 18 February 2013, paras. 63–76. See also the Arbitration Agreement of 4 November 2009 underlying the Arbitration Between the Republic of Croatia and the Republic of Slovenia, Art. 7.3 (“The Parties shall take necessary steps to implement the award, including revising national legislation, as necessary, within six months after the adoption of the award.”).

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that may guide parties and tribunals in future disputes in applying and supplementing the procedures expressly set out in Part xv and in Annex vii. This chapter has sought to examine a number of the procedural challenges arising in recent pca arbitrations concerning the law of the sea and the procedural innovations adopted in response by the tribunals concerned. Although most relevant for future proceedings under Annex vii, these insights have implications beyond the context of arbitration at the pca. Other fora for disputes under Part xv of the Convention may well find useful guidance in the procedures adopted by recent Annex vii tribunals, as may courts or tribunals concerned with inter-State disputes arising under other treaties.202 Nor are the lessons of Annex vii arbitration limited to the inter-State context. In their procedural dimensions, arbitrations involving different types of instruments and parties have many similarities. The development of commercial arbitration and of mixed arbitration between States and private parties drew many lessons from the work of the 1899 and 1907 Hague Conferences and of the International Law Commission on arbitral procedure for inter-State disputes. More recently, modern inter-State arbitration has benefited and drawn on the existence of well-developed procedures in the context of private and mixed arbitration. Unsurprisingly, both the challenges discussed in this chapter and the trends that can be ascertained in recent disputes concerning the law of the sea arise also in other areas of the pca’s work on the peaceful settlement of international disputes. Tribunals in recent mixed arbitrations at the pca have been faced with non-participating respondents,203 interest by 202 For example, at the 70th anniversary seminar of the icj, a counsel who frequently appears before the pca, icj and itlos “noted that the proceedings of the Permanent Court of Arbitration hearing in the South China Sea Arbitration might provide a model as to how the Court could better enable counsel to address the questions that really interest the Tribunal both in advance of the first round and in the second round.” Comment of A. Boyle, in “Outcome Paper for the Seminar on the International Court of Justice at 70: In Retrospect and in Prospect,” A. Keane (ed.), (2016) 7:2 Journal of International Dispute Settlement 238 at 252. Likewise, one of the judges of the icj “concluded by encouraging the Court to learn from the experiences of other tribunals, for example, international arbitration tribunals in respect of experts.” Comment of C. Greenwood, in “Outcome Paper for the Seminar on the International Court of Justice at 70: In Retrospect and in Prospect,” A. Keane (ed.), (2016) 7:2 Journal of International Dispute Settlement 238 at 253. 203 For instance, Russia has declined to participate in a series of arbitrations between foreign investors and the Russian Federation arising under the Russia-Ukraine bilateral investment treaty and concerning investments in Crimea. See Everest Estate llc et al. v. The ­Russian Federation (pca Case No. 2015-36); pjsc Ukrnfta v. The Russian Federation (pca Case No. 2015-34); Stabil llc et al. v. The Russian Federation (pca Case No. 2015-35); A ­ eroport Belbek llc et al. v. The Russian Federation (pca Case No. 2015-07). As in recent Annex vii proceedings, these tribunals have treated Russian Notes Verbales as objections

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non-parties in investment arbitration is at an all-time high, technically complex disputes arise in every area of law, and at least three tribunals in mixed arbitrations have recently been called on to conduct site visits.204 Faced with technical, sensitive, and often highly political disputes, recent Annex vii tribunals have developed and employed procedures that may offer useful guidance in a wide variety of contexts.

to j­urisdiction, bifurcated proceedings, appointed independent experts, posed questions to parties before and during hearings, and allowed written submissions from a non-disputing party. 204 See discussion in J. Levine & N. Peart, “Procedural Issues and Innovations in Environment-Related Investor State Disputes,” Section 2.3 in K. Miles (ed.) Research Handbook on Environment and Investment Law (forthcoming). In at least two pca investor-State cases, tribunals operating under the uncitral Rules either relied on the general provisions on conduct of proceedings and collection of evidence or on the provisions relating to powers of experts to inspect evidence. One case involved a visit by the tribunal to see first-hand the alleged impact of environmental remediation works carried out by the investor. In another case, similar to the visit conducted in Guyana v. Suriname, the tribunal appointed an independent expert to conduct a visit to a party’s warehouse to survey and report on the physical properties of a site that was earmarked for destruction and expropriation. In a pca-administered contract dispute, the tribunal was asked to conduct a site visit to inspect allegedly faulty construction works.

Chapter 5

itlos at 20: Provisional Measures and the Precautionary Approach Mubarak A. Waseem* 1 Introduction In 2016, the International Tribunal for the Law of the Sea (“itlos” or the “Tribunal”) celebrated its twentieth anniversary.1 In its twenty years of operation, itlos has heard applications for provisional measures in nine of its twentyfive cases, an impressive number for a court that has only recently matured from its teenage years. This burgeoning jurisprudence is due in large part to the apex position of the Tribunal, which provides provisional measures not only for cases before the Tribunal, but also for arbitrations under Part xv of the United Nations Convention on the Law of the Sea (“unclos” or the “Convention”). The complete depth and breadth of the issues of substance and procedure explored within those cases is a subject that deserves a volume of its own. The humbler aim of this piece is to compare the regime of provisional measures in the Convention with the paradigmatic concept of provisional measures in international law, and to explore an issue that arises from the jurisprudence of the Tribunal. This paper proceeds in three sections. The first explores the purpose of provisional measures jurisdiction, situating it within the theory of international dispute resolution. Particular focus is placed on the paradigmatic concept of provisional measures in State-State disputes. The second section contrasts this paradigmatic concept with the Tribunal’s provisional measures jurisdiction in the Convention and its Rules of Court, to explore how the Tribunal’s processes

* This piece was prepared in part during a wonderful internship at the International Tribunal for the Law of the Sea in Hamburg. I am grateful to Ximena Hinrichs, my supervisor, and the Legal Office for their support and encouragement. It would be remiss of me not to also thank Neža Hren, Ruba Noorali, Oscar de Luz and the 2014 King’s College London Jessup team. It was their guidance and friendship that set me upon this path. 1 In March 2017, the Tribunal hosted a further commemorative symposium: “itlos at 20: Looking into the future”. I had the pleasure of working at the Tribunal when the finishing touches were being made to the Tribunal’s programme of celebratory events.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_007

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break the traditional mould seen in other areas of international dispute resolution. The third explores the Tribunal’s provisional measures jurisprudence on the use of the precautionary principle/approach in the prevention of serious harm to the rights of litigant States and to the marine environment. 2

The Purpose and Paradigmatic Concept of Provisional Measures

The recourse of litigants, whether States or private parties, to the judicial resolution of their disputes rests upon the effectiveness of that resolution.2 The judicial resolution of disputes is inherently retroactive, and adjudication occurs after a dispute has arisen between two parties. That retroactivity presents a temporal disconnect (inherent in all judicial resolution, whether national or international) between the existence of a given right or obligation, and its later confirmation by a court or tribunal. Advocate General Tesauro explained this phenomenon eloquently in his opinion in the Factortame case before the European Court of Justice: Sometimes the right’s existence is established too late for the right claimed to be fully and usefully exercised […]. The result is that in such a case the utility as well as the effectiveness of judicial protection may be lost and there could be a betrayal of the principle, long established in jurisprudence, according to which the need to have recourse to legal proceedings to enforce a right should not occasion damage to the party in the right.3 In both national and international adjudication, provisional measures – also known as interim measures or interim injunctions – are an important tool which augments judicial dispute resolution, and safeguards its effectiveness. Such proceedings operate to preserve the integrity and relevance of the final outcome of proceedings by preventing one party from taking any action which might prejudice the effective realisation of the rights of the other, thus preserving the possibility of effective implementation of a final judicial determination of the rights and obligations of the parties. As Advocate General Tesauro continued: 2 This piece uses the term “judicial” as an adjective to refer not only to standing courts such as itlos and the International Court of Justice, but also arbitral tribunals. 3 Case C–213/89 R v Secretary of State for Transport, ex parte: Factortame Ltd and others (1990) ecr I-02433, Opinion of AG Tesauro, para. 18.

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Interim protection has precisely that objective purpose, namely to ensure that the time needed to establish the existence of the right does not in the end have the effect of irremediably depriving the right of substance, by eliminating any possibility of exercising it; in brief, the purpose of interim protection is to achieve that fundamental objective of every legal system, the effectiveness of judicial protection.4 In fact, provisional measures are seen as being so fundamental to the proper administration of judicial justice that the ability to grant them is often considered as a power inherent in the international judicial function, meaning that international courts and tribunals will consider themselves competent to grant provisional measures even if their constituent documents do not mention such a competence.5 There are two ways that provisional measures protect the object of litigation between the parties to a dispute. Provisional measures are designed either to protect a specific right in issue between the parties, or more broadly to prevent the further aggravation of the dispute between the parties.6 Among the smorgasbord of functions that international courts and tribunals can be said to possess,7 provisional measures archetypally reinforce what can be described as the “dispute resolution” function of an international adjudicative body. They preserve the ability of the court or tribunal entrusted with the final resolution of the dispute to issue an effective judgment, because “[t]he essential object of provisional measures is to ensure that the execution of a future judgment on the merits shall not be frustrated by the actions of one party pendente lite”.8 In his Separate Opinion in the Interim Protection phase of the Aegean Sea case before the International Court of Justice (“icj”), President Jiménez de Aréchaga gave some guidance as to what this paper terms the “paradigmatic” conception of provisional measures in international law: the essential justification for the impatience of a tribunal in granting relief before it has reached a final decision on its competence and on the 4 Ibid. 5 See the example of the European Court of Human Rights, as cited in Rüdiger Wolfrum, “Interim (Provisional) Measures of Protection”, in Rüdiger Wolfrum, ed., Max Planck Encyclopaedia of Public International Law (Oxford University Press, 2010), para. 1. 6 Cameron A. Miles, Provisional Measures before International Courts and Tribunals (Cambridge University Press, 2017), p. 174. 7 See, e.g., José E Alvarez, “What are International Judges for? The Main Functions of International Adjudication”, in Cessare P R Romano, Karen Alter & Yuval Shany, eds., The Oxford Handbook of International Adjudication (Oxford University Press, 2013), p. 158. 8 Aegean Sea Continental Shelf Case (Greece v Turkey), Interim Protection Order (1976) icj Rep 3 (Separate Opinion of President Jiménez de Aréchaga), p. 15.

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merits is that the action of one party pendente lite causes or threatens a damage to the rights of the other, of such a nature that it would not be possible fully to restore those rights, or remedy the infringement thereof, simply by a judgment in its favour.9 The President’s opinion stresses the bilateral nature of the provisional measures paradigm. The measure of protection itself is inter partes, and its purpose is to protect the object of litigation before a court. In this paradigmatic conception, provisional measures are directed at “the action of one party”, and their principal aim is preventing the actions of that party from causing or threatening damage to the realisation of “the rights of the other”. The inter partes nature of the paradigmatic concept of provisional measures also means that parties must only seek to protect, through provisional measures, those rights which are being sought in the merits of the litigation. As the icj made clear in the Bosnian Genocide case, “the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or the Respondent”.10 The bilateral paradigm of provisional measures therefore protects and augments the inter partes dispute resolution function of international courts and tribunals. An order of provisional measures secures the effectiveness of any judgment by preserving the potential rights of one party against the actions of the other until the judgment of the court confirms or denies the right. It is against this archetypal backdrop that we will assess the provisional measures jurisdiction of itlos, which in many important ways departs from this traditional paradigm. 3

Provisional Measures in the Convention

A The Convention and Dispute Resolution Part xv of the Convention, which contains the unclos dispute settlement mechanisms, was an essential part of the “package deal” of the Convention.11 9 10

11

Ibid., pp. 15–16. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Request for Provisional Measures) icj Rep 1993 3, p. 19. The icj has subsequently repeated this formulation on many occasions, such as in Temple (Interpretation) (Cambodia v Thailand) (Request for Provisional Measures) 2011 icj Rep 537, p. 545. Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford University Press, 2005), p. 44.

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The basic norm of dispute settlement in Part xv is the primacy choice, as embodied in Article 280, which empowers States Parties “to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice”.12 Parties to the Convention are given wide discretion to choose the forum for the settlement of disputes. This overarching primacy of choice is also repeated in the sub-part dealing with compulsory, binding dispute settlement (i.e., arbitration and litigation, as opposed to negotiation). Article 287 allows States Parties to choose one of four methods of judicial dispute settlement: itlos, the icj, arbitration under Annex vii of the Convention, or arbitration under Annex viii of the Convention. Where the choices of two parties to a dispute coincide, that method of dispute settlement becomes binding unless there is an agreement to the contrary. Where the choices differ, or where a State party has not chosen a method of dispute settlement, the parties must submit to Annex vii arbitration unless they can agree on another method of settlement.13 It is against this backdrop of primacy of choice that the Article 290 provisional measures regime must be seen and contrasted. Provisional Measures in the Convention – Codifying and Developing icj Jurisprudence The provisional measures framework in the Convention, contained in A ­ rticle 290, has a broad application, covering the interaction between some of the fora available under Article 287.14 It sits within the dispute resolution provisions of ­unclos, which used the icj Statute and Rules as a preliminary drafting

B

12 13 14

unclos, Article 280. unclos, Article 287. Article 290 reads as follows: 1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part xi, Section 5 [the seabed disputes chamber], the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. 2. Provisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist. 3. Provisional measures may be prescribed, modified or revoked under this article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard. 4. The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other States Parties as it considers appropriate, of the prescription, modification or revocation of provisional measures.

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framework.15 In this respect, the Convention codifies some of the more historically ambiguous aspects of the icj’s jurisdiction as to provisional measures. For example, the binding character of provisional measures was a controversy in the text of the icj statute, which empowered the icj to “indicate” provisional measures; nothing in the statute or rules suggested that an order of provisional ­measures was binding. This was a controversy only solved by the 2001 LaGrand decision, where the icj confirmed that its provisional measures orders were indeed binding on the States Parties to whom they were made.16 Article 290, however, removes this uncertainty by empowering the court to “prescribe” provisional measures that are explicitly designated as binding by paragraph (6). Another area of uncertainty has been the level of success on the merits that an Applicant’s case must display before it will be granted an interim remedy by the icj. The test first adopted by the icj in its Fisheries Jurisdiction case was that measures would not be granted “if the absence of jurisdiction on the merits is manifest”.17 As formulated, the test put the burden of proof on the Respondent State to disprove jurisdiction, but this was changed the following year by the icj in the Nuclear Test Cases, in which the icj decided that it “ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded”.18 This formulation has been consistently applied by the icj, as recently as the decision in Russia v Ukraine.19 The Convention r­ epeats 5. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4. 6. The parties to the dispute shall comply promptly with any provisional measures ­prescribed under this article. 15 Rosenne, supra note 11 p. 45. 16 LaGrand (Germany v United States of America) (Merits) icj Rep. 2001 446, para. 102. 17 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) Interim Protection Order (1972) icj Rep 12, para. 15. 18 Nuclear Test Case (Australia v France) Interim Protection Order (1973) icj Rep 135 para. 14; Nuclear Test Case (New Zealand v France) Interim Protection Order (1973) icj Rep 99 para. 13. 19 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial

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this formula in Article 290(1), avoiding uncertainty as to the test for the prescription of provisional measures under Part xv. As well as clarifying and reinforcing some of the paradigmatic elements of provisional measures in international law, Article 290 also represents “marked departures” both from the paradigmatic conception of provisional measures,20 but also from the general underlying grundnorm of the primacy of choice of forum in Part xv of the Convention generally. Two particular aspects of Article 290 are important to mention here. Departing from the Paradigmatic Conception of Provisional Measures – Acting to Prevent Serious Harm to the Marine Environment Article 290(1) of the Convention contains a noticeable departure from the paradigmatic concept of provisional measures. Whilst the paradigmatic concept involves measures that are granted strictly inter partes, Article 290(1), empowers a court or tribunal under Part xv or Part xi, Section 5 (the Seabed Disputes Chamber) to issue provisional measures either to preserve the respective rights of the parties, or to prevent serious harm to the marine environment. Measures can therefore be granted even where they are “not directly linked to the interests of the parties to the dispute”.21 In the context of the Convention as a whole, this addition is perhaps unsurprising. The Convention’s substantive obligations include a general, wideranging obligation to “protect and preserve the marine environment” in Article 192.22 In a dispute resolution context, however, the position is unique, and its effects are wide-ranging. This provision empowers a court or tribunal to move beyond the rights of the parties to the litigation, binding States to obligations beyond those owed to the other party to the dispute. This procedural remedy likely stems from necessity, as Article 192 is titled “general obligation” and provides for no explicit rights-holder. Nevertheless, by expanding the circumstances in which a court or tribunal can prescribe provisional measures, the Convention similarly expands the function of the provisional measures orders issued by those courts and tribunals. A provisional measures order directed at the prevention of serious harm to the marine environment, where that prevention is not linked to one of the

C

D ­ iscrimination (Ukraine v Russian Federation) Interim Measures Order (2017), para. 17 (unreported). 20 Rosenne, supra note 11 p. 45. 21 Wolfrum, supra note 5 para. 9. 22 unclos, Article 192.

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rights claimed by the Applicant or Respondent, moves from the exclusive protection of the interests of the parties to the protection of the values and interests of the international community. In turn, this changes the function that the court performs when issuing such measures: a court or tribunal protecting the marine environment outside of the rights claimed by the parties challenges the bilateral dispute settlement paradigm, and pushes the court into what some commentators have called the “governance function”,23 requiring decision-makers to “consider the impact of their rulings on states, persons, or entities not directly represented before them”.24 This is particularly striking in the context of provisional measures. As interim measures pending the final resolution of the dispute on the merits, provisional measures are by definition temporary, and cannot prejudice the merits of a decision. Those merits may, in fact, go against an Applicant State that has been awarded provisional measures. To require a State (usually a R ­ espondent State) to take measures in relation to a non-party to the dispute, only to be later vindicated on the merits, is a far-reaching measure, in the context of a bilateral dispute. Of course, as the measures are temporary, the burden to a State which is ordered to undertake provisional measures only to be vindicated on the merits is minimised. Nevertheless, the Convention’s view of provisional measures as extending beyond the bilateral dispute before the court or tribunal empowered to decide the merits demonstrates the ways in which the Convention departs from the paradigmatic conception of provisional measures. Departing from the Primacy of Choice – itlos as the Apex Provisional Measures Tribunal under the Convention itlos is not the only method of dispute resolution under the Convention. General disputes can be submitted under Article 287 to four fora, including itlos. Yet, Article 290(5) allows itlos to prescribe provisional measures not only for disputes submitted to the court, but also pending the constitution of arbitration tribunals under Article 287.25 Pending such a constitution, and if the parties cannot agree on a forum for the adjudication of their provisional measures within two weeks of the date of a request, the Tribunal (or the

D

23 Alvarez, supra note 7 pp. 170–171. 24 Ibid., p. 171. 25 Understandably, the only forum that itlos cannot prescribe provisional measures for is the icj, a permanent, standing court with its own provisional measures rules and procedures.

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­Seabed Disputes Chamber) becomes empowered to prescribe, modify, or revoke provisional measures. Though the primacy of consent is a recurring theme throughout Part xv of the Convention, the Tribunal is uniquely empowered with compulsory ­jurisdiction for the prescription of provisional measures, notwithstanding the choice (or deemed choice) of a separate arbitral tribunal by the parties for the final resolution of the dispute. It is believed to be the first time a standing international tribunal has been empowered with compulsory residual jurisdiction to prescribe provisional measures when the substance of the dispute is submitted to a different forum.26 The Tribunal is therefore given an apex position as the residual, compulsory forum for provisional measures jurisdiction. This enables cross-pollination and jurisdictional interaction between these fora, as prescribing provisional measures under Article 290(5) first requires itlos to adjudicate on the prima facie jurisdiction of the arbitral tribunal of final jurisdiction. In sum, this authority thrusts itlos into an apex position as the residual, compulsory forum for provisional measures jurisdiction, cutting against the primacy of consent. 4

Provisional Measures and the Precautionary Approach

The previous section explored the ways in which itlos’ constituent documents break the traditional paradigm of provisional measures, by giving it an apex position in relation to other tribunals by permitting it to prescribe provisional measures in disputes destined for final resolution in arbitral tribunals established under Annexes vii or viii of the Convention. This section explores the question of the precautionary principle/approach,27 which has arisen in the course of the nine provisional measures applications which the Tribunal has heard in its 20 years of operation. Perhaps unsurprisingly, when dealing with issues of harm to the marine environment, the question of precaution arises. The precautionary principle/ approach arises where scientific uncertainty exists as to the scope and potential negative impact of a proposed activity, but where there are “plausible 26 Rosenne, supra note 11 pp. 49–50. See note 58 on p. 49 for an academic discussion of this idea prior to entry into force of the Convention. 27 This piece distinguishes between the precautionary principle as a term denoting a binding norm of law, and the precautionary approach, a term used in the Tribunal’s jurisprudence to suggest an interpretive mechanism not rising to the level of a free-standing norm of international law. See also Patricia Birnie & Alan Boyle, International Law and the Environment (Oxford University Press, 2nd ed., 2012), p. 115.

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i­ndications of potential risk”.28 The precautionary principle/approach prevents a party wishing to continue its potentially harmful activity from relying on the absence of scientific certainty as to its deleterious effect in order to justify its continuation. Although the modus operandi of the principle/approach varies,29 it usually involves precaution being exercised against the party seeking to undertake such activities. Outside of its codification in international treaties, the status of precaution in general international law is uncertain.30 The reports of international courts and tribunals are replete with arguments in favour of the application of the precautionary principle,31 and itlos is no exception. A number of the provisional measures hearings at itlos have involved claims under the precautionary principle. A The Southern Bluefin Tuna Cases The Southern Bluefin Tuna Cases (“sbf Tuna”) were brought by Australia and New Zealand against Japan, and joined by the Tribunal.32 They were the second proceedings in which the Tribunal heard an application for provisional measures, the first being in the MV Saiga (No 2) case between St. Vincent and the Grenadines as Applicant and Guinea as Respondent. In sbf Tuna, the Applicants requested the Tribunal to issue provisional measures against an increase in Japanese tuna fishing in the Southern Ocean, 28 29

30 31

32

Responsibilities and obligations of States with respect to activities in the Area (2011) (Advisory Opinion) itlos Rep. 10, paras. 131–132. See, e.g., Jonathan B. Wiener, “Precaution”, in Daniel Bodansky, Jutta Brunnée & Ellen Hey, The Oxford Handbook of International Environmental Law (Oxford University Press, 2008), pp. 602–607 (describing three versions of the operation of the principle/approach); Meinhard Schröder, “Precautionary Approach/Principle”, in Rüdiger Wolfrum, ed., Max Planck Encyclopaedia of Public International Law (Oxford University Press, 2010), para. 8 (“A significant problem in implementing the precautionary principle as a policy tool arises from the extreme variety of interpretation […] one can identify many different formulations of the principle in treaties and non-treaty declarations which reflect various forms of intensity of the precautionary principle”). See, e.g., Gerhard Hafner & Isabelle Buffard, “Obligations of Prevention and the Precautionary Principle”, in James Crawford et al., eds., The Law of International Responsibility (Oxford University Press, 2010), pp. 530–531. Pulp Mills (Written Pleadings of Argentina), at para. 3.194–3.196; Gabčíkovo-Nagymaros (Written Pleadings of Hungary), at para. 6.69; sbf Tuna (Written Pleadings of New Zealand and Australia), at para. 14; Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case (1995) (Oral Pleadings of New Zealand) 11 September 1995, paras. 76–77. Southern Bluefin Tuna Cases (Australia/New Zealand v Japan) (Order of 16 August 1999).

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which the Applicants considered to be in breach of the previously-established Total Allowable Catch. Japan considered that it was undertaking experimental fishing in order to establish whether the Southern Bluefin Tuna stock was ­recovering from historic lows. Amongst their requests for provisional measures, the Applicants requested that “the parties act consistently with the precautionary principle in fishing for sbt pending a final settlement of the dispute”.33 The Tribunal held as a preliminary issue that “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment”.34 The significance of this step should not be overlooked. The Tribunal clarified that its jurisdiction in Article 290(1) to prescribe provisional measures to prevent serious harm to the marine environment extended to fisheries. Nothing in Part xii of the Convention, dealing with the obligations over the marine environment, makes this explicit and, as Judge Laing noted in his Separate Opinion, the provisions which do cover living resources “do not dispose of the question”.35 As to the provisional measures themselves, the Tribunal did not order the parties to comply with the precautionary principle. Instead, the Tribunal required the parties to act with “prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna”.36 The Tribunal noted that there was scientific uncertainty as to the measures needed to preserve the fish stock,37 but that it nevertheless had to preserve the rights of the parties and avert further deterioration of the stock.38 However, the Tribunal stopped short of applying a precautionary principle. The comments of the Tribunal are slightly difficult to categorise. The Tribunal did not order compliance with the precautionary principle, nor did it comment on its status in international law. Instead, after discussing scientific uncertainty, it required the parties to act with “prudence and caution”, without reference to the source of that obligation. Judge Laing noted in his separate opinion that these paragraphs were “pregnant with meaning”.39 Whilst he considered the precautionary principle to have gained international acceptance,40 33 34 35 36 37 38 39 40

Ibid., (Memorial of Australia), para. 8; ibid. (Memorial of New Zealand), para. 8. Southern Bluefin Tuna Cases (Australia/New Zealand v Japan) (1999) (Provisional Measures Order), para. 70. Ibid., (Separate Opinion Judge Laing), para. 18, including note 7. Ibid., (Provisional Measures Order), para. 77. Ibid., (Provisional Measures Order), para. 79. Ibid., (Provisional Measures Order), para. 80. Ibid, (Separate Opinion Judge Laing), para. 13. Ibid., (Separate Opinion Judge Laing), para. 15.

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he preferred to consider a “precautionary approach”, which he gleaned from several sources in the Convention.41 Judge Treves also considered the Tribunal to have adopted a precautionary “approach”,42 but not a freestanding norm or principle.43 B The mox Plant Case The mox Plant case concerned the construction of a mixed oxide plant in Sellafield, England, on the coast of the Irish Sea, which Ireland alleged would cause damage to its interests under the Convention. Ireland alleged that the precautionary principle applied to reverse the burden of proof, such that  the ­United Kingdom would need to “demonstrate that no harm would arise from discharges and other consequences of the operation of the mox plant, should it proceed”.44 On the facts, the Tribunal did not prescribe the provisional measures requested by Ireland due to a lack of urgency pending the constitution of an arbitral tribunal under Annex vii of the Convention.45 Nevertheless, the Tribunal considered that it was able to prescribe measures different from those requested by the parties46 and held that “prudence and caution” required Ireland and the United Kingdom to “cooperate in exchanging information concerning risks or effects of the operations of the mox plant”.47 Yet again, the Tribunal did not engage in a discussion of the status of precaution in international law. As Judge Treves noted, the Tribunal applied prudence and caution only in relation to the parties’ procedural rights and obligations of information exchange, not their substantive rights.48 C Land Reclamation The Land Reclamation case concerned a dispute between Malaysia and Singapore, regarding land reclamation by the latter in and around the Straits of Johor. 41 42 43 44 45 46 47 48

Ibid., (Separate Opinion Judge Laing), para. 17. Ibid., (Separate Opinion Judge Treves), para. 8. Presumably, therefore, the reference to the term precautionary “principle” is a reference to a rule of international law, within the meanings of Articles 38(1)(b) or (c) of the Statute of the International Court of Justice (1945) usts 993. mox Plant Case (Ireland v United Kingdom), (Provisional Measures Order), para. 71. Ibid., (Provisional Measures Order), para. 81. Ibid., (Provisional Measures Order), para. 83. Ibid., (Provisional Measures Order), para. 84. Ibid., (Separate Opinion Judge Treves), paras. 8–9. Notably, Judge Treves wrote that the evidence linked the marine environment to the commissioning of the mox plant was “not substantial and focused enough to permit discussion” of scientific certainty or uncertainty. Ibid, para. 8.

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Malaysia alleged that Singapore’s activities engaged a number of provisions of the Convention, including those related to the protection and p ­ reservation of the marine environment and the precautionary principle.49 Singapore argued first that there was no foreseeable harm in relation to its land reclamation works. Second, it argued that the precautionary principle was inappropriate in the context of provisional measures, citing the Separate Opinion of Judge Wolfrum in mox Plant.50 Whilst not prescribing provisional measures in the Tuas sector (one of those under consideration), the Tribunal did prescribe measures in ‘Area D’ at Pulau Tekong. The Tribunal noted that it could not be excluded that there might be adverse impacts on the marine environment.51 It held that “prudence and caution” required that Malaysia and Singapore establish a group of independent experts with the mandate to study the effects of Singapore’s land reclamation and to propose appropriate measures to deal with any adverse effects caused thereby.52 This was the second instance of the Tribunal using the term “prudence and caution” in relation to the procedural rights of the parties, rather than their substantive rights. D The MV Louisa The MV Louisa was the eighteenth case to be heard by the Tribunal, and concerned the eponymous vessel in the case, which flew the flag of the Applicant, St. Vincent and the Grenadines, and was arrested by the Respondent, the Kingdom of Spain, and kept at El Puerto de Santa María pending criminal investigation. The Applicant eventually failed, both in its request for provisional measures53 and in the merits phase at the Tribunal, on the basis of the criminal proceedings against the Applicant.54 The Tribunal, when refusing provisional measures, reiterated the jurisdiction it had under Article 290(1) of the Convention to “prescribe measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment”.55 Though the judges considered that there was no risk to the rights of the parties, they took account of the A ­ pplicant’s 49 50 51 52 53 54 55

Land Reclamation (Malaysia v Singapore) (Provisional Measures Order) (2003) itlos Rep., p. 10, para. 74. Ibid., (Response of Singapore), paras. 139–140. Ibid., (Provisional Measures Order), para. 96. Ibid., (Provisional Measures Order), paras. 99, 101(1)(a). The M/V “Louisa” Case (St. Vincent and the Grenadines v Spain) (Provisional Measures Order) (2010) ITLOS Rep 58. Ibid., (Judgment) (2013) ITLOS Rep 4, para. 160. Ibid., (Provisional Measures Order), para. 71.

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contention there would be a threat to the environment if the Louisa was left docked in El Puerto de Santa María.56 The Tribunal then emphasized the requirement from sbf Tuna that the parties “act with prudence and caution to prevent serious harm to the marine environment”.57 However, the Tribunal did not prescribe any provisional measures, instead placing on record the assurances of Spain58 that its port authorities were “continuously monitoring the situation, paying special attention to the fuel sill loaded in the vessel”, and “the Capitanía Marítima of Cadiz has an updated protocol for reacting against threats of any kind of environmental accident”.59 E Ghana/Côte d’Ivoire In the Dispute Concerning Delimitation of the Maritime Boundary Between ­Ghana and Côte d’Ivoire in the Atlantic Ocean (“Ghana/Côte d’Ivoire”), ­Ghana initiated proceedings in a Special Chamber of the Tribunal against Côte d’Ivoire for the establishment of a single maritime boundary between the two States, which have adjacent coasts in the Gulf of Guinea. The request covered the delimitation of the territorial sea, the eez, and the continental shelf between the States. Although Ghana was the Applicant in the main proceedings, which at the time of writing have only just concluded with a judgment of the Special Chamber, Côte d’Ivoire issued a cross-application for provisional measures against what it considered Ghana’s unlawful granting of exploitation contracts over oil fields in the disputed maritime area. The written pleadings of Côte d’Ivoire mentioned the Tribunal’s consistent usage of the term “prudence and caution”, quoting itlos President Golitsyn’s statement of 9 December 2014 to the UN General Assembly that the term “prudence and caution” is “equivalent to acting by applying a precautionary approach”.60 Côte d’Ivoire developed this 56 57 58

59 60

Ibid., (Provisional Measures Order), paras. 72–73. Ibid., (Provisional Measures Order), para. 77. The Tribunal explicitly stated that it was “placing on record” those assurances of Spain. Although the Tribunal did not explicitly state that it was following the icj’s judgment in the Nuclear Tests Cases, it is likely that the Tribunal, by taking such action, considered Spain bound by those assurances as unilateral declarations, which contributed to the eventual decision that the circumstances did not require the prescription of provisional measures (i.e., because Spain was already bound by its assurances). The M/V “Louisa” Case (St. Vincent and the Grenadines v Spain) (Provisional Measures Order) (2010) itlos Rep 58, paras. 74–75. Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Request for the Prescription of Provisional Measures) (2015), p. 17, citing Vladimir Golitsyn, “Statement on agenda item 74(a) ‘Oceans and the law of the sea’” Plenary of the 69th Session of the United Nations General Assembly, New York, 9 December 2014, p. 22.

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point in oral argument, arguing that “prevention and monitoring measures with regard to oil exploration and exploitation are of crucial importance and their implementation must be governed by a precautionary approach”.61 Côte d’Ivoire also cited what it considered to be pollution in those oil fields, alleging that Ghana’s environmental protection legislation suffered from “loopholes”.62 It therefore asserted that serious harm was being caused to the marine environment, giving the Tribunal avenues under both limbs of Article 290(1) to grant provisional measures. For its part, on the allegation regarding serious harm to the marine environment, Ghana claimed that its environmental protection legislation was “among the most robust in the region”.63 Indeed, the Special Chamber was not convinced by the submissions of Côte d’Ivoire on this ground, finding that Côte d’Ivoire had adduced insufficient evidence to support the contention that there was a serious risk to the marine environment.64 Nevertheless, it considered that harm to the marine environment was of “serious concern”, and recalled its earlier jurisprudence that the parties should act with “prudence and caution” to prevent such harm.65 As to the rights of Côte d’Ivoire that were alleged, Ghana denied the existence of such rights,66 and claimed that before the crystallization of the dispute there had been decades of oil exploration and exploitation grants given by Ghana in what it considered the “Ghanaian side of the customary boundary based on equidistance” without previous complaint by Côte d’Ivoire.67 Ghana further submitted that Côte d’Ivoire’s request to shut down ongoing oil operations would be “financially ruinous” and that if adjudged by the Tribunal to have been breached, they were such as could be remedied financially through damages.68 The Tribunal supplemented these arguments by suggesting that such an order for complete shutdown may also harm the marine environment.69 Nevertheless, the Tribunal accepted that new oil exploitation, and the use of information already gathered, might harm the rights of Côte d’Ivoire. In the operative paragraph of the Order, the Tribunal prescribed that Ghana was to 61 62 63 64 65 66 67 68 69

Ibid., (Oral Argument of Côte d’Ivoire) 29 March 2015 (am), p. 36 (Ms. Alina Miron) (ITLOS/PV.15/C23/1/Corr.1). Ibid., (Request for the Prescription of Provisional Measures) (2015), pp. 47–48. Ibid., (Written Statement of Ghana) (2015), para. 72. Ibid., (Provisional Measures Order), para. 67. Ibid., (Provisional Measures Order), para. 72. Ibid., (Provisional Measures Order), para. 51. Ibid., (Provisional Measures Order), para. 52. Ibid., (Provisional Measures Order), paras. 81–87. Ibid., (Provisional Measures Order), para. 101.

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ensure no new drilling took place in the disputed area, and that it was to take all necessary steps to prevent information about the drilling activities from being used to the detriment of Côte d’Ivoire,70 though the Tribunal made no finding about the need for prudence and caution other than the reminder in paragraph 72 of the Order. F Analysis The Tribunal has been consistent in its jurisprudence in the use of a precautionary “approach”, rather than a precautionary “principle”. Contrasted with a principle, a precautionary “approach” suggests a more flexible, non-binding obligation. The United States, for example, has urged the use of the term “precautionary approach”, suggesting that it does not consent to the use of precaution as a binding norm entailing international legal obligations.71 This raises the question: why would the Tribunal adopt a non-binding obligation? As mentioned above, it is unclear whether the precautionary principle has an independent status in customary international law.72 Incidental provisional measures proceedings are hardly the forum to resolve such important questions; the process is expedited, the pleadings focus on the rights at issue, and the hearings are scheduled as quickly as possible. A full discussion of State practice and opinio juris cannot be meaningfully conducted in such proceedings. This certainly was the case in sbf Tuna, and Judge Laing recognised that the limited time which the Tribunal had to consider awarding provisional measures was insufficient to consider the existence of a wider rule in c­ ustomary international law.73 Furthermore, “adopting an approach, rather than a p ­ rinciple, ­appropriates imports a certain degree of flexibility” into the ­decision-making ­process.74 This allows the Tribunal to assess obligations on the basis of ­precaution without the need to delve into the necessity of a ­freestanding obligation. This being the case, the question remains as to how an approach can be justified on the basis of the law applicable to the dispute. Judge Treves provided his answer in sbf Tuna, stating that precaution was simply a logical extension of the circumstances in which provisional measures are prescribed: In my opinion, in order to resort to the precautionary approach for a­ ssessing the urgency of the measures to be prescribed in the present case, it is not necessary to hold the view that this approach is dictated 70 Ibid., (Provisional Measures Order), para. 108. 71 Wiener, Precaution, supra note 29 p. 601. 72 Supra note 29. 73 sbf Tuna (Separate Opinion Judge Laing), p. 16. 74 sbf Tuna (Separate Opinion Judge Laing), p. 19 (emphasis in original).

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by a rule of customary international law. The precautionary approach can be seen as a logical consequence of the need to ensure that, when the arbitral tribunal decides on the merits, the factual situation has not changed In other words, a precautionary approach seems to me inherent in the very notion of provisional measures.75 It is submitted that this justification is incomplete, because it is does not refer to the possibility of arguments on the marine environment being raised only in the provisional measures phase of a case. The “factual situation” that must remain the same pending the constitution of the arbitral tribunal (or the merits phase of the case at the Tribunal) is the factual situation pertaining to the merits of the case. It is of course possible that the merits of the case do not include arguments concerning the marine environment, but only the rights of the litigants. Yet the protection of the marine environment is nevertheless made relevant in the provisional measures phase by its importation of Article 290(1) alongside the rights of the parties. Mentions of the need for precaution when dealing with the marine environment are of course replete within the jurisprudence outlined above. What is absent is justification of the inherence of precaution to that obligation (as opposed to it being a freestanding obligation). Perhaps such inherence can be justified on the text of the obligation. Article 192 of the Convention obligates a State to “protect and preserve” the marine environment; both words import an inherent sense of precaution, though in a less rigid sense than the precautionary principle. It is submitted that the view of the Tribunal is that an approach, in the context of provisional measures at least, is sufficient to adequately protect the rights of States and the marine environment. Furthermore, and thinking specifically about the uniqueness of the provisional measures regime in the Convention, the Tribunal has an apex position even as against international arbitral tribunals established in accordance with Part xv of the Convention when acting under Article 290(5). As has been noted above, provisional measures cannot prejudice the merits of a final decision, but the mode of operation of the precautionary principle is an unsettled matter. The application of the precautionary principle, at its highest, usually entails a reversal of the burden of proof, and it would fall to the respondent party (or the party against whom a provisional measures order is sought) to prove that its activity will not cause harm to the environment. In cases like mox Plant and sbf Tuna, such an enquiry would have involved information about the potential level of pollution, and the level of danger to 75

sbf Tuna (Separate Opinion Judge Treves), p. 9.

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the fish stocks, respectively. The lengthy provision of proof in the course of these enquiries, factual determinations as to the level of uncertainty, and the reversal of burdens might be considered an issue best reserved for the merits of a certain case. Provisional measures generally cannot prejudge the merits of the case. This balance is especially delicate where the Tribunal acts under Article 290(5), prescribing provisional measures before the constitution of another arbitral tribunal which will have jurisdiction over the merits of the case. If the Tribunal required a reversal of the burden of proof in its provisional measures phase, one might consider it to be hearing evidence which should rightly be reserved for the final merits phase of the case. Judge Wolfrum’s Separate Opinion in mox Plant made it clear that, even if the precautionary principle were to be accepted as part of customary international law, the Tribunal could only have applied it after assessing the levels of radioactivity in the Irish Sea, and the potential impact of the plant. These issues, he opined, were “to be dealt with under the merits by the Annex vii arbitral tribunal”. He continued: It should not be forgotten that provisional measures should not anticipate a judgment on the merits. This basic limitation on the prescription of provisional measures – emphasised by the International Court of Justice – finds its justification in the exceptional nature of provisional measures. Such limitation cannot be overruled by invoking the precautionary principle.76 Judge Wolfrum’s separate opinion went further, to the logical conclusion of this line of thought, suggesting that the exceptional nature of provisional measures might never justify an application of the precautionary principle. He considered that if Ireland’s approach in the mox Plant case was accepted, it would mean that the granting of provisional measures becomes automatic when an applicant argues with some plausibility that its rights may be prejudiced or that there was serious risk to the marine environment. This cannot be the function of provisional measures, in particular since their prescription has to take into consideration the rights of all parties to the dispute.77

76 77

mox Plant (Separate Opinion Judge Wolfrum), p. 3. Ibid., (Separate Opinion Judge Wolfrum), p. 3.

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There are therefore two important reasons for the Tribunal’s use of “prudence and caution”, a precautionary approach stopping short of a freestanding legal principle. First, the unclear status of the principle in international law, and the fact that provisional measures are not the right procedures by which to determine such status, necessitate the use of precaution as an extrapolation of existing norms. Second, the very nature of the Tribunal’s apex position requires a delicate balance between resolving the request for provisional measures and refraining from treading on the toes of the body empowered to finally resolve the dispute. Such a delicate balance renders recourse to a burden-shifting principle too blunt an instrument by which to resolve the issue. itlos seems to have adopted the approach of Singapore in the Land Reclamation case, that the application of a rule of precaution is never appropriate in provisional measures; we are therefore never likely to see the development of the precautionary principle at itlos in the provisional measures phase. It remains to be seen whether this approach will remain in place as the precautionary principle gradually gains support and, potentially, becomes a binding rule of international law. Judge Wolfrum’s approach would suggest not. 5

Conclusion and the Future Prospects of “Stress-Testing” Article 290(1)

In its Preamble, unclos calls itself a “legal order for the seas and oceans”. The regime of the law of the sea is more than a series of bilateral rights and obligations concerning States alone. As Hans Kelsen wrote, a legal order is “not a ­plurality of valid norms on the same plane but rather a hierarchical structure”.78 itlos, through its provisional measures orders, is sitting as the judicial apex of this new legal order, which is far more interconnected and multilateral than traditional concepts of international law. Notwithstanding the plurality of dispute resolution fora offered to States Parties to the Convention, they must accept the residual jurisdiction of the Tribunal to prescribe provisional measures pending the constitution of an arbitral tribunal. Furthermore, the Tribunal may act, as it has done, to protect the marine environment once the parties have requested provisional measures, regardless of whether the protection of the marine environment was a part of their request. This impacts the function of an international court or tribunal. Whereas the traditional conception of provisional measures protects the ­final and binding dispute resolution function of an international tribunal, the 78

Hans Kelsen, “The Concept of the Legal Order” 27 ajj 64 (1982), p. 69.

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provisional measures regime in the Convention goes far beyond that, bringing in the possibility of community interests outside the rights of the litigants themselves. The provisional measures jurisdiction of the Tribunal is a chisel by which it can carve a policy-oriented, trusteeship function. The Tribunal protects the balance of marine life, protects against pollution, and prevents harm not only to the rights of the parties, but the rights of all. After twenty years in operation, the Tribunal’s provisional measures jurisprudence, though humble in its quantity, is wide-ranging and helping to develop the international law of the sea. This piece has examined but one of the ­issues that has arisen from that jurisprudence. In the near future, the Tribunal’s provisional measures regime will undoubtedly be stress-tested by the granting of exploitation contracts by the International Seabed Authority. A ­ rticle 290(1) applies not only to dispute resolution mechanisms under Part xv of the Convention, but also to the Seabed Disputes Chamber of itlos. In front of that Chamber, standing is not only granted to States, but also to companies and legal persons party to contracts within the Area.79 If unclos is truly a legal order of the seas and oceans, then as litigation in this area proliferates, the Tribunal must continue to operate at the helm of this legal order and work to prevent new, challenging harms to the marine environment caused by exploitation of the Area. The current President of the Tribunal, Judge Vladimir Golitsyn, put it best when he said on the occasion of the Tribunal’s Twentieth anniversary: Building on the experience of the last 20 years, the Tribunal stands ready to meet the challenges of the future. We, the Judges of the Tribunal, are ready to serve the international community and the States Parties to the Convention for the settlement of their disputes related to the implementation and application of the Convention.80 79 80

unclos, Article 187(c). Judge Vladimir Golitsyn, Statement at the UN General Assembly on 7 December 2016, available at https://www.itlos.org/fileadmin/itlos/documents/statements_of_president/ Golitsyn/GA_2016_President_081216.pdf.

Chapter 6

Certain Controversial Issues in the Development of the International Law of the Sea Keyuan Zou* It is recalled that the United Nations Convention on the Law of the Sea (“Law of the Sea Convention,” or “losc”) has come into force for more than two decades. However, there are still remaining issues, some left over by the Third United Nations Conference on the Law of the Sea, such as innocent passage for warships, and some emerging in the course of its implementation, such as generic resources on the high seas. This chapter selects four such areas for discussion including straight baselines, regime of islands, military activities in the Exclusive Economic Zone (“eez”), and maritime historic rights. By discussing these issues, it is suggested that there be a review conference for the losc in the near future. 1 Introduction The current marine legal order in the world has been principally established by and maintained under the losc, which is commonly regarded as the constitution for the oceans, having incorporated previously existing conventional and customary rules and norms concerning the oceans. Pursuant to the provisions of the losc, a coastal State has the right to establish maritime zones under its jurisdiction: the internal waters inside the baselines which are used to measure the extent of the maritime zones and the territorial sea of 12 nautical miles (nm), eez of 200 nm, and continental shelf of 200 nm (or up to 350 nm in some cases) as measured outward from the baselines. Within these maritime zones, a coastal State is entitled to enjoy either sovereignty or sovereign rights and to exercise its jurisdiction and enforce its laws and regulations in accordance with international law. So far as of 2017, the losc has been in force for more than 20 years. As it is recalled, the adoption of the losc was a “package deal” comprising considerable compromises and ambiguities. Thus it is understandable that some * Harris Professor of International Law, University of Central Lancashire.

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controversial issues, such as innocent passage for warships, are left over by the losc, while others, such as military activities in the eez, are emerging from the implementation of the losc. This paper selects four areas for discussion including straight baselines, regime of islands, military activities in the eez, and maritime historic rights. The conclusion is the suggestion that there be a review conference for the losc in the near future. 2

Straight Baselines

According to the losc, straight baselines can be used when the coastal lines meet either of the following conditions: in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.1 The Convention further provides that “[t]he drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.”2 This method is a supplement to the use of normal baselines. Although there are no specific technical details about how to draw straight baselines, the United States takes the position that in order to meet the losc criteria, straight baseline segments must not depart to any appreciable extent from the general direction of the coastline, by reference to general direction which in each locality shall not exceed 60 miles in length; and result in sea areas situated landward of the straight baseline segments that are sufficiently closely linked to the land domain to be subject to the regime of internal waters.3 In State practice, however, in particular in East Asia, the use of straight baselines to measure maritime zones is more common than the use of normal baselines. For the People’s Republic of China (prc), the 1958 Declaration on China’s Territorial Sea declared that (1) The breadth of the territorial sea of China should be 12 nautical miles, which applies to all territories of China, including the Chinese mainland and its coastal islands, as well as all other islands 1 Article 7(1) of the losc. 2 Ibid. 3 J. Ashley Roach & Robert W. Smith, United States Responses to Excessive Maritime Claims, 2nd ed. (The Hague: Martinus Nijhoff, 1996), 64–65.

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belonging to China; and (2) China’s territorial sea would take, as its baseline, the line composed of the straight lines connecting basepoints on the mainland coast and on the outermost of the islands; the water area extending 12 nautical miles outward from the baseline would be China’s territorial sea, and the water areas inside the baseline would be China’s inland waters, ­including the Bohai Sea and the Chiungchow Strait.4 But at that time the prc ­Government did not publicize any geographical coordinates. Only in May 1996 was part of such baselines around the mainland and the Xisha Islands (Paracel Islands) publicized.5 The publicized baselines are divided into two sets: one c­ omprising 49 base points along features on, and adjacent to, its mainland coast and on Hainan Island beginning at point 1 (Shandong gaojiao) on the eastern tip of the Shandong peninsula situated to the southeast of Bohai, south to point 49 situated on the west coast of Hainan Island; and the other comprising 28 base points encompassing the Paracel Islands in the northern part of the South China Sea. Parts of the baselines have been criticized for not being consistent with the criteria set forth in the losc. The United States takes the view that “much of China’s coastline does not meet either of the two los Convention geographic conditions required for applying straight baselines. And, for the most part, the waters enclosed by the new straight baseline system do not have the close relationship with the land, but rather reflect the characteristics of high seas or territorial sea.”6 Further analysis gives the details about how China’s straight baselines deviate from the losc criteria. For example, the coastline from the Shandong peninsula to the area of Shanghai (point 1 to point 11) is essentially smooth with no fringing islands and few indentations. Thus, it is argued, the straight baseline method should not apply.7 The other criticism of China’s straight baselines is that the archipelagic straight baselines encircling the Paracel Islands should not be used because the prc is not a mid-ocean archipelagic State.8 4 An English version may be found in Office of Policy, Law and Regulation, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China, 3rd Edition (Beijing: Ocean Press, 2001), 197. 5 Declaration on the Baseline of the Territorial Sea of the People’s Republic of China, 15 May 1996; see Office of Policy, Law and Regulation, ibid., 206–209. 6 Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State (boiesa), Limits in the Seas: Straight Baseline Claim: China, No.117, 9 July 1996, 3. 7 See ibid., 5. 8 See ibid., 8. For further reference, see Hyun-Soo Kim, “The 1992 Chinese Territorial Sea Law in the Light of the UN Convention,” International and Comparative Law Quarterly, Vol. 43, 1994, 896–899; and Daniel J. Dzurek, “The People’s Republic of China Straight Baseline Claim,” ibru Boundary and Security Bulletin, Summer 1996, 77–89.

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Similar to China, other East Asian countries also have problematic baselines. The United States lodged a protest, in an aide mémoire, against a system of 10 straight baseline segments declared by Vietnam in November 1982. It took the view that the baselines claimed by Vietnam did not meet the corresponding criteria and “there is no basis in international law” for such a system of straight baselines.9 Further, it stated that “[e]ven if the Mekong delta qualifies the coastline in this locality as deeply indented, the islands selected are not appropriate as basepoints.”10 The United States also criticized the baselines claims made by Japan and the Republic of Korea (South Korea). For Japan, its coastline in many locations does not meet the losc geographic conditions required for applying straight baselines.11 As for South Korea, while acknowledging that its coastline is deeply indented in several areas and there are areas off the coast which are fringed with islands, the United States regards the means by which South Korea has drawn particular straight baseline segments in several locations as not meeting the losc criteria.12 In December 1998, Taiwan publicized part of its baselines, including those encircling the Taiwan Island and Penghu Islands.13 The Penghu Channel, once used to be an international waterway, has thus become part of Taiwan’s internal waters. The straight baseline segments which encircle the whole Penghu Islands are clearly problematic when examined under the criteria of the losc, for multiple reasons, and United States officials criticized these straight baselines drawn by Taiwan as not consistent with international law.14 Baselines are critical for the measurement of maritime zones under national jurisdiction as well as for maritime boundary delimitation between neighboring coastal States. Thus problematic baselines cause subsequent issues in the above two areas. When a coastal State uses problematic baselines to designate a maritime zone, it will become controversial under international law and challengeable by other countries. Potential maritime disputes or conflicts 9 10

Roach & Smith, supra note 2, 102. W. Michael Reisman & Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (New York: St. Martin’s Press, 1992), 133. 11 Bureau of Oceans and International Environmental and Scientific Affairs, United States Department of State (boiesa), Limits in the Seas: Straight Baseline and Territorial Sea Claims: Japan, No. 120, 30 April 1998, 2. 12 boiesa, Limits in the Seas: Straight Baseline and Territorial Sea Claims: South Korea, No.121, 30 September 1998, 2. 13 See United Daily News (Taipei) (in Chinese), 1 January 1999. 14 See J. Ashley Roach & Robert W. Smith, “Straight Baselines: The Need for a Universally Applied Norm,” Ocean Development and International Law, Vol. 31, 2000, 65. For further details, see J. Ashley Roach, “An International Law Analysis of Taiwan’s Maritime Claims,” Taiwan International Law Quarterly, Vol. 2(1), March 2005, 256–268.

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will then arise. In East Asia, many of the coastal States have drawn “excessive” straight baselines in the eyes of the United States. There is an interesting phenomenon in East Asia that “bad baselines beget bad baselines.”15 Now all the countries concerned have realized the need to delimit maritime boundaries between them. It is unknown whether they will use the existing baselines as points of departure to undertake maritime boundary delimitation or if they will reach an agreement to use a unified standard to adjust their baselines before settling the maritime boundary issues. 3

Regime of Islands

According to the losc, an “island” is a “naturally formed area of land, surrounded by water, which is above water at high tide.”16 This definition contains four essential factors: (i) a piece of land; (ii) naturally formed; (iii) surrounded by water; that is (iv) above the sea surface at high tide. But the Convention does not explain to what extent a piece of land surrounded by water and above water at high tide can be regarded as an island. Once defined as an island, it is treated as a piece of land which can have its own territorial sea, eez and continental shelf. For the purpose of measuring the breadth of the territorial sea, in the case of islands situated on atolls or of islands having fringing reefs, then the baseline is the seaward low-water line of the reef.17 In State practice, some countries use the term “island” in a very broad sense. Like Japan, which names “Okinotori” as “shima” (island in Japanese). China uses the term “qundao” (archipelagoes or groups of islands in Chinese) to name all the features, even including some permanently submerged features such as Macclesfield Bank in the South China Sea. The Spratly Islands in Chinese is called Nansha Archipelago. In 2010, China adopted the Regulations on the Naming of Sea Islands,18 where the term “sea islands” has been given both a specific and a general meaning; according to the general meaning, “sea islands” can include archipelagoes, groups of islands, islands, reefs, banks, submerged reefs and banks.19 In practice, even for the same maritime geographic feature, 15 16 17 18 19

Roach and Smith, “Straight Baselines: The Need for a Universally Applied Norm,” supra note 13, 53. See Article 121 of the losc. Article 6 of the losc. The Chinese version of the Regulations is reprinted in 2 China Oceans Law Review (2010), 331–334. Article 28 of the 2010 Regulations, ibid., at 334.

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there are different names from different countries. For example, Scarborough Reef in Chinese is Huangyan Island, and Okinotorishima in Chinese is Chongzhiniao Reef. However, it should be noted, as it is stated in the South China Sea arbitration case, that “the name of a feature provides no guidance as to whether it can sustain human habitation or an economic life of its own.”20 The losc further provides in Article 121 that “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”21 Given the substantial difference in maritime zone generation, coastal States attempt to consolidate a tiny piece of maritime land in order to get it qualified as an island. The recent example is Okinotorishima (Douglas Reef) of Japan.22 While the International Hydrographic Bureau suggests that a rock has an area less than 0.001 square miles (or 2,590 sq. m.),23 there are numerous other different definitions based on different criteria and parameters. Thus the problem of how to define an island remains a controversial issue in international law. The South China Sea arbitration has touched upon the regime of islands and explained in detail the differences between an island and a rock. According to the arbitral award issued on 12 July 2016, “the use of the word ‘rock’ does not limit the provision to features composed of solid rock. The geological and geomorphological characteristics of a high-tide feature are not relevant to its classification pursuant to Article 121(3).”24 Furthermore, “the status of a feature is to be determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own.”25 As for “human habitation,” according to the Tribunal 20 21 22

23 24 25

The South China Sea Arbitration Award of 12 July 2016, available at http://www.pcacases .com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, para 482. Article 121(3) of the losc. Yann-huei Song, “Okinotorishima: A ‘Rock’ or an ‘Island’? Recent Maritime Boundary Controversy between Japan and Taiwan/China,” in Seoung-Yong Hong & Jon M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Leiden: Martinus Nijhoff, 2009), at 148; also see Yann-huei Song, “The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Pacific Ocean,” 9 Chinese Journal of International Law (2010), 663–698, in particular, 691–694. Cited in Leticia Diaz, Barry Hart Dubner and Jason Parent, “When Is a ‘Rock’ an ‘Island’?— Another Unilateral Declaration Defies ‘Norms’ of International Law,” 15 Mich. St. J. Int’l L. (2007), at 535. The South China Sea Arbitration Award of 12 July 2016, available at http://www.pcacases .com/pcadocs/PH-CN%20-%2020160712%20-%20Award.pdf, para. 482. Ibid., para. 541.

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the critical factor is the non-transient character of the inhabitation, such that the inhabitants can fairly be said to constitute the natural population of the feature, for whose benefit the resources of the exclusive economic zone were seen to merit protection. The term “human habitation” should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain.26 As for the term “economic life of their own,” it is “linked to the requirement of human habitation, and the two will in most instances go hand in hand.”27 In other words, “[t]he Tribunal considers that the “economic life” in question will ordinarily be the life and livelihoods of the human population inhabiting and making its home on a maritime feature or group of features.” Additionally, Article 121(3) makes clear that the economic life in question must pertain to the feature as “of its own.” Economic life, therefore, must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea. Economic activity that is entirely dependent on external resources or devoted to using a feature as an object for extractive activities without the involvement of a local population would also fall short with respect to this necessary link to the feature itself. Extractive economic activity to harvest the natural resources of a feature for the benefit of a population elsewhere certainly constitutes the exploitation of resources for economic gain, but it cannot reasonably be considered to constitute the economic life of an island as its own.’28 In the Tribunal’s view, the text of Article 121(3) is disjunctive, such that the ability to sustain either human habitation or an economic life of its own would suffice to entitle a high-tide feature to an exclusive economic zone and continental shelf. However, as a practical matter, the Tribunal considers that a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community. One exception to that view should be noted for the case of populations sustaining themselves through a network of related maritime features. The Tribunal does not believe that maritime features can or should be considered in an atomized fashion. A population that is able to inhabit an area only by making use of multiple maritime features does not fail to inhabit the feature on the grounds that its habitation is not sustained by a single feature individually. Likewise, a population whose livelihood 26 27 28

Ibid., para. 542. Ibid., para. 543. Ibid., para. 543.

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and economic life extends across a constellation of maritime features is not disabled from recognizing that such features possess an economic life of their own merely because not all of the features are directly inhabited.29 The Tribunal also considers the capacity of a maritime feature to sustain human habitation or an economic life of its own, and takes the view that “The capacity of a feature is necessarily an objective criterion” and has no relation to the question of sovereignty over the feature. The principal factors cited that contribute to the natural capacity of a feature include the presence of water, food, and shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate period of time. “Such factors would also include considerations that would bear on the conditions for inhabiting and developing an economic life on a feature, including the prevailing climate, the proximity of the feature to other inhabited areas and populations, and the potential for livelihoods on and around the feature.”30 The Tribunal considers that the capacity of a feature should be assessed with due regard to the potential for a group of small island features to collectively sustain human habitation and economic life. On the one hand, the requirement in Article 121(3) that the feature itself sustain human habitation or economic life clearly excludes a dependence on external supply. A feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121(3). Nor does economic activity that remains entirely dependent on external resources or that is devoted to using a feature as an object for extractive activities, without the involvement of a local population, constitute a feature’s “own” economic life.31 The decision notes that there are instances where the inability or ability to sustain human habitation is clear. A lack of vegetation, drinkable water, and other sundries required for survival would make obvious the inability to sustain human habitation; conversely, where such resources are readily available, it is obviously habitable.32 The South China Sea arbitral award, though attempting to interpret Article 121 of the losc, has raised a number of controversial issues in the law of the sea 29 30 31 32

Ibid., para. 544. Ibid., para. 545. Ibid., para. 547. Ibid., paras. 540–548.

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concerning islands, groups of islands, or even archipelagic States and waters. The Tribunal re-defined the definition of island in Article 121: there would be no “island” in the meaning of Article 121 and the high tide geographic features are divided into two categories, fully-entitled island and rock. If a high tide geographic feature would become a fully-entitled island, it must meet the criteria set forth by the Tribunal, such as permanent residence, natural food and water, etc. Second, the Tribunal eliminated the meaning of the phrase “economic life of its own” in Article 121 (3) by subjecting it to “human habitation.” In the eye of the Tribunal, without “human habitation,” “economic life” becomes meaningless. Such an explanation raises the question of how to interpret the relevant wordings in this paragraph: does the word “or” mean in parallel one or the other, or mean “and” or “plus”? It seems that there is suspicion of excessive, if not abusive, interpretation by the Tribunal of the relevant provisions in the losc. Another related issue concerns artificial islands. While there is no definition under the losc, there are attempts in the international law academia to define “artificial islands.” The Encyclopedia of Public International Law defines artificial island as a temporary or permanent fixed platform made by man surrounded by water and above water at high tide.33 The losc to some extent defines the legal status of artificial islands. Its definition on islands clearly excludes any artificial island. Article 60 provides that “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.”34 While artificial islands do not generate any maritime zones, coastal States are allowed to establish safety zones around them. But such safety zone around an artificial island should not exceed a distance of 500 meters, “measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization.”35 Artificial islands constructed on natural rocks and reefs with the nature of permanence have become a new issue in international law. China (prc) has occupied several reefs in the Spratlys since 1988 and, for the purpose of military stationing or other purposes, it built artificial structures on these reefs (Johnson South/Chigua Reef, Subi/Zhubi Reef, Gaven/Nanxun Reef, Cuarteron/Huayang 33

Rudolf Bernhardt, Encyclopedia of Public International Law, Law of the Sea Volume (1989), at 38. 34 Article 60 of the losc. 35 Ibid.

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Reef, Hughes/Dongmen Reef, and Mischief/Meiji Reef). Some of them have been later expanded to become more like artificial islands, such as the one established on Fiery Cross/Yongshu Reef. Swallow Reef (Terumbu LayangLayang in Malay), occupied by Malaysia, has been massively reclaimed and has a fishing port, 15-room diving resort and a 1.5 km airstrip. In this sense, the international law community has acknowledged that due to artificial installations, for many of the islands, “it has become difficult to distinguish what is the natural feature and what is man-made.”36 While it is safe to say that the relevant provisions of the losc are applicable to natural islands and artificial islands, the legal status of the hybrid category is special and difficult to define under the losc, and even under applicable international law as a whole. If it is defined as a natural feature, it is mixed with artificial installations and structures; if it is defined as an artificial island, it is not artificially fixed to the sea bed, but rather is supported by a natural base such as a reef whether above water at high tide or not. Apparently, there is no regulation in international law governing such natural and artificial combinations. The relevant 1958 Convention on the Continental Shelf contains provisions only concerning the construction of artificial islands on the continental shelf as it provides that the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and exploitation of its natural resources, but such artificial installations and devices do not possess the status of islands.37 The issue of artificial islands is related to the application of Article 121(3) of the losc concerning rocks. The current situation of artificial construction in the South China Sea or elsewhere has been in fact triggered by this provision since States, in order to extend their maritime spaces, make every effort to turn those “rocks” into “islands” that can fulfill the conditions of sustaining human habitation or economic life of their own. The Okinotorishima is a typical example as mentioned above. The question is whether such artificial construction on the reef has changed its legal status. As expressed by China, the construction of artificial facilities on the reef “will not change its legal status.”38 However, this is only China’s legal position regarding the Okinotorishima and it is contrary to the real intention of Japan. What Japan has done and will do is to make the reef fulfill the conditions prescribed in Article 121(3) of the losc 36 37 38

Robert W. Smith, “Maritime Delimitation in the South China Sea: Potentiality and Challenges,” 41 Ocean Development and International Law (2010), at 223. Article 5 of the 1958 Convention on the Continental Shelf. See Qin Jize, Li Xiaokun & Cheng Guangjin, Japan atoll expansion “hurts neighbors,” China Daily, 11 February 2010, available at http://www.chinadaily.com.cn/world/2010-02/11/ content_9461259.htm.

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so as to enable Japan to claim not only territorial sea, but also eez and continental shelf from that reef. Thus the ultimate purpose of Japan is to change the legal status of the reef. Due to the opposition of China and South Korea, the Commission on the Limits of the Continental Shelf suspended its consideration of Japan’s submission concerning the part at least partially generating from Okinotorishima (Southern Kyushu-Palau Ridge Region) while giving its recommendations for other parts of Japan’s extended continental shelf claims.39 But this setback does not inhibit Japan from unilaterally claiming eez as well as continental shelf (though limited to 200 nm) allegedly generating from that reef. Recently, China’s massive reclamation activities in the South China Sea have caught the attention of the international community. Some describe the reclaimed lands as artificial islands, while others argue that the reclamation is subject to the international law of territorial acquisition and conform to one of the five types of territorial acquisition: accretion. 4

Military Activities in the eez

According to the losc, all the seas in the world shall be used peacefully, and 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, shall be prohibited.40 From this basic legal principle, military activities with threatening potentials should not be carried out in the eezs of other countries. As we know, there is controversy over whether the conduct of military ­activities in the eez of another country is legitimate. Some States may invoke Article 58(1) of the losc to justify their military activities in other countries’ eezs. The provision reads: In the exclusive economic zone, all States, whether coastal or landlocked, 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

39 40

For details, see UN Doc CLCS/74, 30 April 2012, available at http://daccess-dds-ny.un.org/ doc/UNDOC/GEN/N12/326/32/PDF/N1232632.pdf?OpenElement. See Art. 301 of the losc.

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with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. Freedoms in the high seas provided in Article 87 are thus applicable to the eez as long as they are not contrary to other provisions of the losc. According to maritime powers such as the United States, the wording freedoms “such as those associated with the operation of ships, aircraft [and other]” implies the legality of naval maneuvers in a foreign eez.41 One view even considers military exercises, aerial reconnaissance and all other activities of military aircraft freedoms of the high seas if due regard is paid to the rights and interests of third States.42 As advocated, since the losc mainly provides the rights of navigation and overflight, while keeping silent on the rights of military activities, a maritime superpower must defend and enforce such rights for its security interests.43 Then the question is whether military use constitutes an internationally lawful use of the ocean. The losc does not mention military use, so it becomes a gray area which leads to different interpretations. This lack of mention is criticized as one of the major defects in the new losc.44 On the other hand, it is argued that without an express mention in the Convention, military use is hardly regarded as one of such lawful uses. However, this argument may not be convincing. According to a fundamental legal principle, nothing is illegal if there is no law to make it so.45 Following this, military use is not prohibited since there is no such prohibition in the losc. Second, the losc affirms that matters which are not regulated under it should be continually governed by general international law including customary law. Tracing back through history, military activities were consistently allowed under customary international law, though in implied form. In that sense, military activities could be considered a historically lawful use of the high seas.46 Third, there is r­ ecognized 41 42 43 44 45 46

See Boleslaw Adam Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries,” Ocean Development and International Law, Vol. 19, 1988, 450. Kay Hailbronner, “Freedom of the Air and the Convention on the Law of the Sea,” 77 ajil (1983), 503. See Charles Pirtle, “Military Uses of Ocean Space and the Law of the Sea in the New Millennium,” Ocean Development and International Law, Vol. 31, 2000, 8–9. Shao Jin, “Legal Problems Concerning Military Use of Exclusive Economic Zones and Continental Shelves,” Chinese Yearbook of International Law (in Chinese), 1985, at 183. For example, “nullum crimen sine lege” (no crime without law), and “nullum crimen nulla poena sine lege” (no criminal punishment without law). See Douglas Guilfoyle, “Maritime Security,” in Jill Barrett & Richard Barnes (eds.), Law of the Sea: unclos as a Living Treaty (British Institute of International and Comparative Law, 2016), at 356.

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­difficulty in inferring that the establishment of the eez has limited foreign military operations other than pure navigation and communication from the text and legislative history of Article 58 of the losc.47 No specific regulation on military activities in foreign eezs under international law does not mean that they can be conducted in the eez at random. It should be borne in mind that the circumstances now are fundamentally different from those in the past. There was and still remains no controversy regarding the military activities conducted in the high seas which was and is open to all. The eez, however, is different from the high seas in that it is an area under national jurisdiction. While military activities are allowed there, the factor of national jurisdiction must be taken into account. There should be some kind of check-and-balance mechanism for foreign military activities in the eez. It is hard to understand the logic of the argument that while marine scientific research in the eez is subject to the consent of the coastal State, military activities can be conducted freely without any check by the coastal State. On the other hand, even if the military use is an internationally lawful use, arguably the losc limits it to navigation and overflight and other rights as provided in Article 87. This can be seen from some domestic eez legislation, such as Suriname’s.48 In practice, coastal States, including Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan, and Uruguay explicitly restrict unapproved military exercises or activities in or over their eezs conducted by other countries. Iran also lays down laws restricting foreign military activities in its eez by stipulating that “[f]oreign military activities and practices, collection of information and any other activity inconsistent with the rights and interests of the Islamic Republic of Iran in the exclusive economic zone and the continental shelf are prohibited.”49 This legal provision caused a diplomatic row between Iran and the United States. The United States lodged a protest stating that the 47 48

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Francesco Francioni, “Peacetime Use of Force, Military Activities, and the New Law of the Sea,” Cornell International Law Journal, Vol. 18, 1985, 216. As it provides, all nations, with the observance of the international law, enjoy: “… 4. Freedom to exercise internationally recognized rights in connection with navigation and communication,” Art. 5 of Law concerning the extension of the territorial sea and the establishment of a contiguous economic zone of 11 June 1978, in Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, The Law of the Sea: National Legislation on the Exclusive Economic Zone (New York: United Nations, 1993), 351. Honduras’ law contains a similar provision (Art. 2 of Decree No. 921 of 13 June 1980 on the Utilization of Marine Natural Resources). See Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations (1993), ibid., 129. Art. 16 of Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea, 1993, in Division for Ocean Affairs and the Law of the Sea, Office of Legal

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­ rohibition of military activities contravenes international law and the United p States reserves its rights in this regard. In reply, the Iranian diplomatic note states that due to the multiplicity of economic activities, it is possible that such activities, for which the coastal State enjoys sovereign rights, could be harmed by military practices and maneuvers; accordingly, those practices which affect the economic activities in the eez and the continental shelf are prohibited.50 It is interesting to note that the Iranian explanation does not deny the right of foreign military activities in the eez and the only reason for their prohibition is their possible harm to economic activities there. The regulations above are made under the rationale that military ­activities are inherently potential threats to the peace and good order of the coastal States. While such regulations are understandable, it should be borne in mind that not all military activities are threatening. Contrarily, some military activities, such as the activities undertaken by the UN peacekeeping forces, are indispensable to maintain peace and good order. In the same thinking, some civilian activities may be threatening, as illustrated by a severe marine pollution accident caused by a civilian activity or illegal fishing in the eez. In such context, what we should look into is not the form of a certain activity, but its nature. If a military activity is threatening in nature and conducted with clear bad intention and/or in a hostile manner, it should be banned in the eez. ­Otherwise, it can be allowed under certain conditions laid down by the coastal State, similar to the marine scientific research regime under the losc. There is no reason why the coastal State is prevented from regulating foreign military activities in its eez while it is allowed to regulate foreign marine scientific ­research there. It is worth mentioning that the East-West Center recently organized several workshops on “military and intelligence gathering activities in the eez.” The launch of this series of workshops was triggered by the EP-3 Incident between China and the United States. The first one was held in Bali, Indonesia in June 2002, which focused on identifying disagreements and contrasting positions as well as on areas of possible mutual understanding and agreement.51 The

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Affairs, United Nations, The Law of the Sea: Current Developments in State Practice No. iv (New York: United Nations, 1995), 67. See Protest from the United States of America, 11 January 1994; and Comments from the Islamic Republic of Iran concerning the viewpoints of the Government of the United States of America regarding the Act on Marine Areas in the Persian Gulf and the Oman Sea, in Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations (1995), ibid., 147–151. For details, see East-West Center, Military and Intelligence Gathering Activities in Exclusive Economic Zones: Consensus and Disagreement: A Summary of the Bali Dialogue (East-West Center, 2002).

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Honolulu Meeting in December 2003 drafted some guidelines for military and intelligence gathering activities in eezs, based on the disagreement between maritime powers and developing coastal countries.52 Through these efforts, it is hoped that some consensus can be reached in the world community regarding military and intelligence gathering activities in eezs, in particular in connection to a possible review of the losc after its entry into force for 10 years. 5

Historic Rights

There is no established definition of the term “historic rights” under international law. However, some scholars have attempted to explain it in their own ways. For example, according to Yehuda Blum, “the term ‘historic rights’ denotes the possession by a State, over certain land or maritime areas, of rights that would not normally accrue to it under the general rules of international law, such rights having been acquired by that State through a process of historical consolidation.”53 Blum further explains that “historic rights are a product of a lengthy process comprising a long series of acts, omissions and patterns of behaviors which, in their entirety, and through their cumulative effect, bring such rights into being and consolidate them into rights valid in international law.”54 Other scholars use the term “historic rights” to indicate “those rights which a state has acquired vis-à-vis one or more other states by effectively ­exercising those rights, with the acquiescence of the state or states concerned.”55 Like the concept of “historic bays,” the concept of historic waters is not clearly defined in international law either. A scholarly definition was offered by Leo Bouchez: “[h]istoric waters are waters over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States.”56 In international judiciary, the International Court of Justice gave a definition of “historic waters” in 52

See 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,” Marine Policy, Vol. 29(2), 2005, 175–183. 53 Yehuda Z. Blum, “Historic Rights,” in Rudolf Bernhardt (ed.), Encyclopaedia of Public International Law, Instalment 7 (Amsterdam: North-Holland Publishing Co., 1984), at 120. 54 Blum, ibid., at 121. 55 Sperduti, “Sul Regime Giuridico dei Mari,” 43 Rivista di Diritto Internazionale, 58, 72; cited in Andrea Gioia, “Tunisia’s Claims over Adjacent Seas and the Doctrine of ‘Historic Rights,’” Syr. J. Int’l L. & Com., Vol. 11, 1984, at 328. 56 Leo J. Bouchez, The Regime of Bays in International Law, 1964, at 281.

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the Fisheries Case: “[b]y ‘historic waters’ are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title.”57 According to the late Daniel O’Connell, there are three circumstances which could be considered as historic waters: (1) bays, claimed by States which are greater in extent, or less in configuration, than standard bays; (2) areas of claimed waters linked to a coast by offshore features but which are not enclosed under the standard rules; and (3) areas of claimed seas which would, but for the claim, be high seas because they are not covered by any rules specially concerned with bays or delimitation of coastal waters (maria clausa).58 Accordingly, the concept of historic waters is usually applicable to bays and gulfs. Once established as historic waters, the waters in question are then regarded as internal waters. There may be exceptions to this rule, i.e., some historic waters claimed by States are not bays or gulfs, but rather open seas, as seen in the practice of the Kingdom of Tonga. The United Nations International Law Commission (ilc) had discussed the concept of historic waters, and in 1962 the UN Secretariat, upon the request of the ilc, prepared a study on the juridical regime of historic waters, including historic bays. The study examined the elements of title to historic waters, the issues of burden of proof, the legal status of waters regarded as historic waters, and the settlement of disputes. However, it did not give a conclusive concept of historic waters and the standard according to which this concept could be applied.59 Generally speaking, there should be three conditions to be fulfilled to sustain a historic water claim. They are (1) the exercise of the authority over the area; (2) the continuity over time of this exercise of authority; and (3) the attitude of foreign States to the claim.60 The term “historic rights” is a general framework which is directly linked to the terms “historic waters” and “historic bays.” However, we have to realize that the term “historic rights” is not equivalent to “historic waters” or “historic bays,” though “historic rights” may carry a broader meaning including other closely related concepts such as historic title, historic waters, and historic bays. The term “historic rights” also covers certain special rights without involving a claim of full sovereignty, such as historic fishing rights which a State might have acquired in particular areas of the high seas.61 Since the term “historic 57 58 59 60 61

Fisheries Case (U.K. v. Norway), 1951 i.c.j. 132 (Judgement of Dec. 18). Daniel Patrick O’Connell, The International Law of the Sea (Oxford: Clarendon Press, 1982), Vol. 1, at 417. See U.N. Doc. A/CN.4/143, at 6. Ibid., at 13. See Bouchez, supra note 54, at 238. (As regards claims to historic rights over parts of the sea, a distinction must be made between (1) historic rights resulting in sovereignty over

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rights” contains an element of non-exclusiveness, the criteria for its establishment must be more lenient than those applicable to “historic title” or “historic waters.” The unclos iii did not discuss the issue of “historic rights” or “historic waters.”62 However, a variant term of historic bay and/or historic title is mentioned in the losc relating to bays, delimitation of the territorial sea between States with opposite or adjacent coasts, and limitations and exceptions in the settlement of disputes. Article 10 (6) provides that “[t]he foregoing provisions [on bays] do not apply to so-called ‘historic’ bays.”63 Article 15 does not allow the median line to apply to special circumstances such as “by reason of historic title” for the delimitation of the territorial seas of the two States.64 The last provision in the losc which mentions the historic bays or titles is Article 298 which permits the contracting States to exclude the compulsory procedure provided for in the losc from applying to the disputes “involving historic bays or titles.”65 It is obvious that the losc deliberately avoids the issue of “historic rights” or “historic waters,” and leaves it to be governed by customary international law as reaffirmed by its preamble.66 Conversely, the Convention bears some implications for the concept of “historic waters” in that those waters are related to the territorial seas or internal waters, since the Convention only mentions them in the sections of the rules for the territorial sea regime and the settlement of territorial disputes. On 26 June 1998, China officially promulgated the Law on the Exclusive Economic Zone and the Continental Shelf in which Article 14 provides that “the provisions of this Law shall not affect the historic rights enjoyed by the People’s Republic of China.”67 It is generally agreed that this clause is connected to a certain part of the sea, and (2) historic rights establishing special fishing rights.) See also Yehuda Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965), 247–248. (Both categories of such rights may justly be termed “historic rights.” It would appear, however, that only the first kind of historic rights relates to “historic waters” properly so-called, whereas the second deals with what may be termed “non-exclusive historic rights,” in the sense that they do not imply a claim of full sovereignty.) 62 During the conference, the proposal advanced in 1976 by Colombia regarding the standards of claiming historic waters was discarded. See unclos iii Official Records (1977), Vol. 5, at 202. 63 Articles 10(6), 15, and 298(1)(a)(i) of the losc. 64 Ibid. 65 Ibid. 66 The preamble of the losc affirms that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” 67 See People’s Daily (in Chinese), 30 June 1998. An unofficial English version was translated and published by this author and reprinted in Zou Keyuan, China’s Marine Legal System

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China’s claim to the South China Sea within the U-shaped line. The provision on historic rights can be understood in the following three interpretations: (1) it might be interpreted to mean that the sea areas which could not become China’s eez and/or continental shelf should have the same legal status as eez and/or continental shelf; (2) it might be interpreted to mean that the sea areas which embody China’s historic rights are beyond the 200 nm limit; and (3) it might be interpreted to mean that the sea areas which embody China’s historic rights but lie within the 200 nm limit can have an alternative management regime different from the eez and or continental shelf regime.68 When it comes to China’s historic rights in the South China Sea, it is inevitable to look at the U-shaped line. The U-shaped line has nine segments off the Chinese coast on the South China Sea, as displayed in the Chinese map and bearing the official Chinese name of “traditional maritime boundary line” (chuantong haijiang xian).69 On 1 December 1947, the Ministry of Interior renamed the islands in the South China Sea and formally allocated them into the administration of the Hainan Special Region. Meanwhile, the same ministry prepared a location map of the islands in the South China Sea. This official map remains in place today and there was no protest until the early 21st century. Based on the U-shaped line, China has claimed all the geographic features and their adjacent waters to be Chinese territory, its rights to marine resources adjacent to these features, and exercise of its maritime jurisdiction. While ­China has never claimed that the waters within the U-shaped line are Chinese historic waters, China has enjoyed historic rights within the line in addition to the maritime entitlement under the losc. As discussed above, the rules governing historic rights are a special regime in international law, exceptional to general rules of the losc. It is illogical, and completely incorrect, to assume that the Chinese territorial and maritime rights in the South China Sea are only historic rights. In fact, the Chinese historic rights are complementary to China’s general rights under international law. The existence of historic rights is widely recognized by the members of the international community including the Philippines. The Philippines only denies the existence of China’s historic rights in its eez. However, without the delimitation of a maritime boundary between China and the Philippines, the

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and the Law of the Sea (Leiden: Martinus Nijhoff, 2005), 342–345. Another variant English translation is available in Law of the Sea Bulletin, No. 38, 1998, 28–31. Zou Keyuan, “Historic Rights in International Law and in China’s Practice,” Ocean Development and International Law, Vol. 31, 2001, at 162. See Zou Keyuan, “The Chinese Traditional Maritime Boundary Line in the South C ­ hina Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly ­Islands,” International Journal of Marine and Coastal Law, Vol. 14(1), 1999, 27–55.

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limit line of the latter’s eez is not clear. The Philippines attempts to seek the limit line of its eez/continental shelf from the ad hoc tribunal by awarding to it the so-called maritime entitlement and negating the maritime entitlement of China in the South China Sea under losc, including China’s historic rights under general international law. To the Philippines’ great pleasure, the South China Sea arbitral tribunal fulfilled its wish by awarding it a big win. However, the tribunal’s interpretation of historic rights is controversial in many aspects.70 After the arbitral award, China, for the first time, made an express statement that it enjoys historic rights in the South China Sea. According to the statement, China has territorial sovereignty and maritime rights and interests in the South China Sea, including, inter alia: i. China has sovereignty over Nanhai Zhudao, consisting of Dongsha Qundao, Xisha Qundao, Zhongsha Qundao and Nansha Qundao; ii. China has internal waters, territorial sea and contiguous zone, based on Nanhai Zhudao; iii. China has exclusive economic zone and continental shelf, based on Nanhai Zhudao; iv. China has historic rights in the South China Sea.71 Clearly, China does not recognize the arbitral award in respect to historic rights. 6 Conclusion The development of the law of the sea depends upon the needs of the international community and also, primarily, on state practice. Since the adoption of the losc in 1982, there are many areas contributing to the development of the law of the sea. There are at least three visible sources of contributions. First is state practice, which can be seen through the domestic laws and regulations of states concerned in relation to the law of the sea and ocean affairs, through bilateral agreements between states concerned in relation to maritime boundary delimitation, maritime environmental protection, fisheries management, etc., and through regional arrangements made by groups of states governing 70 71

For details, see Keyuan Zou, “Historic Rights in the South China Sea Arbitration Case: A Preliminary Reflection,” Asia Pacific Journal of Ocean Law and Policy, Vol. 1(2), 2016, 268–272. Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea, 12 July 2016, available at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379493.shtml.

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­ aritime security, marine environmental protection, fisheries management, m and marine scientific research. The development of international law including the law of the sea depends upon state practice. Second is the contributions of international organizations and institutions such as the International Maritime Organization, UN Food and Agricultural Organization, and international judicial bodies including the International Court of Justice and the International Tribunal for the Law of the Sea. It is worth mentioning that ad hoc arbitral tribunals also contribute to the development of the law of the sea. Third is the contribution of the losc mechanism itself. Since 1994, when the Convention entered into force, there have been two associated agreements adopted under the losc umbrella,72 and it is anticipated that a new one on genetic resources is to be adopted in the near future. The institutions established in accordance with the losc, such as the International Seabed Authority and the Commission on the Limits of Continental Shelf contribute considerably to the development of the law of the sea. Nevertheless, law is always imperfect. There are defects and shortcomings in any legal system, and the law of the sea system is no exception. Even if law is good and adequate, it can be abused or misused when conditions ultra vires prevail. The controversial issues discussed above need to be further clarified and solved with the development of the law of the sea. One possible channel is through the review conference mechanism provided for by the losc.73 72

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They are the 1994 Agreement relating to the implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982, and the 1995 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. Article 312 of the losc provides that After the expiry of a period of 10 years from the date of entry into force of this Convention, a State Party may, by written communication addressed to the Secretary-General of the United Nations, propose specific amendments to this Convention, other than those relating to activities in the Area, and request the convening of a conference to consider such proposed amendments. The Secretary-General shall circulate such communication to all States Parties. If, within 12 months from the date of the circulation of the communication, not less than one half of the States Parties reply favourably to the request, the Secretary-General shall convene the conference.

Chapter 7

The South China Sea Arbitration and the China– Philippines Relations Beyond the Award Vasco Becker-Weinberg* Introduction The South China Sea is a semi-enclosed sea, bordered by China, Vietnam, Malaysia, Singapore, Indonesia, Brunei, and the Philippines, all parties to the United Nations Convention on the Law of the Sea (unclos).1 Of these seven coastal States, five have overlapping claims, namely China, Vietnam, Malaysia, Brunei and the Philippines. The dispute between the Philippines and China in the South China Sea is a longstanding one, and one that has varied from the adoption of hostile actions and extreme national rhetoric, to efforts to seek alternative legal solutions, such as the implementation of interim measures2 in an attempt by both countries to maintain a “healthy and stable development of the bilateral relations.”3 Yet, thus far, both States have not engaged in any negotiations regarding the settlement of their disputes in the South China Sea, nor is it likely that they will do so in the near future. In the last several years there have been significant developments in the China–Philippines South China Sea dispute, which culminated in the institution of arbitral proceedings by the latter against the former on 22 January 2013.4 * Faculty of Law of the Universidade nova de Lisboa. A preliminary version of this paper was published in Il Diritto Marittimo. 1 United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982 and entered into force on 16 November 1994, published at 1833 u.n.t.s. 3. 2 Communiqué by the Ministry of Foreign Affairs of the People’s Republic of China: Ambassador Liu Jianchao pays Courtesy call on Philippine Foreign Affairs Secretary Romulo, 13 March 2009 [online: http://www.fmprc.gov.cn/eng/wjb/zwjg/zwbd/t542281.htm (accessed on August 2013)]. 3 China and the Philippines held 19th Foreign Ministry Consultations, 14 June 2013 [online: http:// www.fmprc.gov.cn/eng/zxxx/t1050565.shtml (accessed on June 2013)]. 4 pca Case N.° 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, and Award, 12 July 2016 [All documents are available online: http://www.pcacases.com/web/view/7 (accessed on April 2017)].

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_009

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However, since the issuance of the Award on 12 July 2016 and greatly due to the change in the political situation in the Philippines and the recent state visit in October 2016 by President Rodrigo Duterte to China at the invitation of President Xi Jinping, the two States have made efforts towards a rapprochement that might result in side-tracking the outcome of the arbitration altogether.5 Indeed, following the visit, there were reports that the Chinese authorities allowed fishing by Philippine fishermen in the waters surrounding the Scarborough Shoal (Huangyan Dao in Chinese, and Panatag Shoal or Bajo de ­Masinloc in Filipino),6 which was one of the contentious issues between the two countries that prompted the Philippines to institute arbitral proceedings against China and that was addressed by the Arbitral Tribunal. However, this was mostly a gesture of good-will by China and not the recognition by it of 5 Joint Statement of the People’s Republic of China and the Republic of the Philippines, 21 October 2016 [online: http://www.fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/t1407682.shtml; http://www.dfa.gov.ph/newsroom/dfa-releases/10748-joint-statement-of-the-republic-of -the-philippines-and-the-people-s-republic-of-china (accessed on April 2017)]: “40. Both sides exchange views on issues regarding the South China Sea. Both sides affirm that contentious issues are not the sum total of the China–Philippines bilateral relationship. Both sides ­exchange views on the importance of handling the disputes in the South China Sea in an appropriate manner. Both sides also reaffirm the importance of maintaining and promoting peace and stability, freedom of navigation in and over-flight above the South China Sea, addressing their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the Charter of the United Nations and the 1982 unclos. 41. Both sides recall the 2002 Declaration on the Conduct of Parties in the South China Sea (doc) and the Joint Statement of the Foreign Ministers of asean Member States and China on the Full and Effective Implementation of the doc adopted in Vientiane on 25 July 2016. Both sides commit to the full and effective implementation of doc in its entirety, and work substantively toward the early conclusion of a Code of Conduct in the South China Sea (coc) based on consensus. 42. Both sides agree to continue discussions on confidence-building measures to increase mutual trust and confidence and to exercise selfrestraint in the conduct of activities in the South China Sea that would complicate or escalate disputes and affect peace and stability. In this regard, in addition to and without prejudice to other mechanisms, a bilateral consultation mechanism can be useful, which will meet regularly on current and other issues of concern to either side on the South China Sea. Both sides also agree to explore other areas of cooperation.” 6 Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on October 31, 2016 [online: http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1411718 .shtml (accessed on April 2017)]: “Q: Reports say that the Chinese coast guard okayed Philippine fishermen’s fishing near Huangyan Dao. Is there any string attached? Can they fish here every day, every week or permanently? A: The Chinese side has always been exercising normal jurisdiction over Huangyan Dao. The situation there is and will remain unchanged. We have seen allround improvement of China–Philippines relations following President Duterte’s visit to China. Under such circumstances, the Chinese side makes proper arrangements based on the friendship between China and the Philippines in response to the issue of President Duterte’s concern.”

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a right of the Philippines. Notwithstanding, there have also been recent reports of clashes in disputed maritime areas of the South China Sea involving Filipino fishermen.7 These reports were not confirmed in the immediate days following the clashes, although the authorities of both China and the Philippines stated at the time that they would be investigated.8 As part of the reconciliation efforts, both countries also signed thirteen arrangements, encompassing a wide variety of subjects, all of which with a significant economic impact in the bilateral relations between China and the Philippines. Reference should be made in particular to the Memorandum of Understanding between the China Coast Guard and the Philippine Coast Guard on the Establishment of a Joint Coast Guard Committee on Maritime Cooperation. Although the content of the memorandum has not been made public, based on the joint statement issued by both countries, it is likely to focus on the two States’ commitment “to enhance cooperation between their respective Coast Guards, to address maritime emergency incidents, as well as humanitarian and environmental concerns in the South China Sea, such as safety of lives and property at sea and the protection and preservation of the marine environment, in accordance with universally recognized principles of international law including the 1982 unclos.”9 The improvement of China–Philippines relations could be further bolstered during the 2017 chairmanship of the Association of Southeast Asia Nations (“asean”)10 by the Philippines, and when President Xi Jinping visits this country at the invitation of President Rodrigo Duterte. Also, the visit of President Duterte to Bejing at the invitation of President Xi Jinping to attend the Belt and Road International Cooperation Forum was an opportunity to continue the rapprochement efforts between both countries.11 Perhaps, with the decreasing of Sino-Philippine tensions and the enhancement of cooperation and exchange between the two States, there could be a real prospect for these countries to seek legal alternatives that allow for the implementation of a constructive modus vivendi in the South China Sea. 7 [online: http://news.mb.com.ph/2017/04/22/china-to-probe-alleged-harassment-of-filipi no-fishermen-on-disputed-sea/ (accessed on April 2017)]. 8 Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference on April 21, 2017 [http:// www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1455629.shtml (accessed on April 2017)]. 9 Supra note 5, para. 18. 10 [online: http://asean.org (accessed on April 2017)]. 11 [online: http://news.mb.com.ph/2017/04/20/dfa-verifying-harassment-claims-against -chinese-coast-guard-in-disputed-sea/ (accessed on April 2017)].

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unclos does not include specific provisions on disputed maritime areas or territorial disputes regarding islands and other offshore features. It does, however, provide rules applicable when States fail to reach an agreement on the delimitation of maritime boundaries. Consistent with these rules, it has been widely acknowledged that joint development offers a suitable legal solution for the South China Sea, especially as this alternative allows coastal States to lawfully develop resources found in disputed maritime areas, without prejudice to their respective claims. Furthermore, it has an important “saving face” element that results from joint development being a win-win option for States, which, in itself, is also extremely relevant in the overall context of the Asia-Pacific region. Yet, coastal States in the South China Sea have often refused, rejected or ignored attempts to settle their maritime disputes, mostly as the result of lacking trust or political susceptibility to negotiate and to end disputes, as well as to negotiate and to enter into a joint development agreement.12 This setting is not exclusive of the South China Sea and evidently several factors concur towards the implementation of joint development agreements, including non-legal factors. Indeed, although there are no ideal conditions for negotiating and entering into joint development agreements, in addition to political will, reliability and the existence of precedents of cooperation between States can favour reaching an agreement on the exploration and exploitation of common resources. Perhaps, the recent rapprochement between the Philippines and China might just present an opportunity for both States in that respect. This paper begins by examining the arbitral proceedings instituted by the Philippines against China and the legal impact of the findings of the Arbitral Tribunal regarding offshore features for the purpose of maritime delimitation. 12

For an in-depth analysis of State practice in the South China Sea and the greater AsiaPacific region, see Vasco Becker-Weinberg, Joint Development of Hydrocarbon Deposits in the Law of the Sea (Springer Verlag: Heidelberg, New York, Dordrecht, London, 2014), pp. 144–165. Also see, Robert Beckman, “The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea”, in: 107 American Journal of International Law (2013), pp. 142–163; Clive Schofield, “What’s at stake in the South China sea? Geographical and geopolitical considerations”, in: Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources, edited by Robert Beckman, Ian Townsend-Gault, Clive Schofield, Tara Davenport and Leonardo Bernard (Edward Elgar Publishing: Cheltenham, UK, Massachusetts, usa, 2013), pp. 11–46. On the political and diplomatic aspects of the maritime disputes in the South China Sea, see Bill Hayton, The South China Sea: The Struggle for Power in Asia (Yale University Press: New Haven, London, 2014).

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It will then consider the legal alternatives for both States in the absence of an agreement on the delimitation of maritime boundaries, which will allow the Philippines and China to manage their disputes in the South China Sea taking into consideration States’ obligations in disputed maritime areas, namely by implementing a durable and practical legal solution through the adoption of provisional arrangements such as joint development. 1 Part i – The South China Sea Arbitration 1.1 Instituting Proceedings On 22 January 2013, the Philippines conveyed to China a notification to submit the dispute between the two States regarding the South China Sea to arbitration, under Article 287 and Article 1 of Annex vii of unclos.13 The Philippines’ primary concern in instituting proceedings against China was to challenge the latter’s “claims to areas of the South China Sea and the underlying seabed as far as 870 nautical miles from the nearest Chinese coast, to which China has no entitlement under [unclos], and which, under the Convention, constitute the Philippines’ [eez] and continental shelf.”14 In a Note Verbal, China rejected the notification and statement of claim, based on the assertions that the dispute submitted to arbitration concerned maritime delimitation, which is excluded by China’s declaration upon ratification of unclos (“China’s 2006 Declaration”)15 and involved disputes on ­territorial sovereignty and not matters concerning the interpretation or application of unclos. The Note Verbal reiterated that China had indisputable sovereignty over the entire South China Sea as encompassed by China’s “nine-dash line” claim, and that China considers that “its sovereignty over the Nansha Islands [Spratly Islands in English, and Kalayann Islands in Filipino] and their adjacent waters is supported by abundant historical and legal evidence”. 13 14 15

Notification and Statement of Claim on the West Philippine Sea, 22 January 2013 [online: http://dfa.gov.ph/images/UNCLOS/Notification%20and%20Statement%20of%20 Claim%20on%20West%20Philippine%20Sea.pdf (accessed on April 2017)]. Ibid, para. 1. The Declaration of the People’s Republic of China under Article 298 of the 1982 United Nations Convention on the Law of the Sea, dated 25 August 2006: “The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part xv of the Convention with respect to all the categories of disputes referred to in paragraph 1(a) (b) and (c) of Article 298 of the Convention.” [online: http://www.un.org/Depts/los/ convention_agreements/convention_declarations.htm (accessed on April 2017)].

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China further stated that the notification and statement of claim submitted by the Philippines contained “many grave errors both in fact and in law” and included “many false accusations against China.”16 Moreover, China recalled that, “bearing in mind the larger interest of China– Philippines relations and regional peace and stability”, the Philippines should return to and uphold the established consensus between China and the asean countries, according to which disputes are to be resolved through bilateral negotiation stipulated in the China-asean Declaration on the Conduct of Parties in the South China Sea, dated 4 November 2002 (“2002 DoC”).17 China stated its belief that it has made every effort to maintain stability and to promote regional cooperation in the South China Sea, requesting the Philippines to respond “positively to China’s proposals on establishing a bilateral regular consultation mechanism on maritime issues” and resuming “the operation of the Confidence Building Measures Mechanism established between the two countries.”18 Yet, despite China’s Note Verbal and its position of non-acceptance and nonparticipation in the arbitral proceedings, the Philippines remained committed to pursuing the arbitration under Annex vii of unclos, underlying that “the 5-member arbitration panel will be formed with or without China.”19 The Philippines in its Memorial dated 30 March 2014 identified fifteen specific submissions that sought to obtain rulings in three inter-related matters: the legality of claimed historic rights within the “nine-dash line”, the legal ­status and projections of certain features, particularly if these are capable of generating entitlement to maritime zones greater than 12mn, and China’s 16

17 18 19

Chinese Spokesperson Hong Lei’s remarks on China returned the Philippines’ Notification on the submission of South China Sea issue to international Arbitration, 19 February 2013 [­online: http://ph.china-embassy.org/eng/xwfb/t1014903.htm (accessed on April 2017)]. Also see Foreign Ministry Spokesperson Hua Chunying’s Remarks on the Philippines’ Efforts in the Pushing for the Establishment of the Arbitral Tribunal in Relation to the Disputes between China and the Philippines in the South China Sea, 26 April 2013 [online: http://www.fmprc.gov.cn/eng/xwfw/s2510/2535/t1035577.shtml (accessed on August 2013)]. Ibid. [online: http://asean.org/?static_post=declaration-on-the-conduct-of-parties-in -the-south-china-sea-2 (accessed on April 2017)]. Ibid. The Department of Foreign Affairs’ Statement on China’s Response to the Philippines’ Arbitration Case, 19 February 2013 [online: http://www.gov.ph/2013/02/19/dfa-statement-on -chinas-response-to-the-ph-arbitration-case-before-unclos/ (accessed on April 2017)]. The Arbitrators were Judge Thomas A. Mensah (President), Judge Jean-Pierre Cot, Judge Stanislaw Pawlak, Professor Alfred H. Soons and Judge Rüdiger Wolfrum.

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­compliance with unclos.20 At a later stage, the Philippines sought also the Tribunal’s appraisal of China’s actions during the proceedings.21 The Philippines considered that China’s “nine-dash line” interfered with the eez and continental shelf of the Philippines, and also maintained that China’s claim and occupation within the “nine-dash line” of submerged banks, reefs and low tide elevations hinder its rights towards these features. In addition, the Philippines considered that China’s claim of maritime zones greater than 12nm surrounding features occupied by China, which the Philippines consider to be rocks under Article 121(3) of unclos, resulted in the encroachment of these zones on the Philippines’ eez. The main obstacle to the Philippines’s intent to pursue arbitration, and therefore for the Tribunal to find that it had jurisdiction, was China’s 2006 Declaration, which excluded the applicability of compulsory dispute settlement concerning certain matters. As such, the Philippines upheld that none of its submission was excluded by China’s 2006 Declaration. The Philippines underlined that the dispute before the Tribunal concerned the source of maritime entitlements and the lawfulness of Chinese activities in the South China Sea, and not matters related to territorial sovereignty or boundary delimitation,22 thus establishing a distinction between the dispute regarding maritime entitlements, and that concerning territorial sovereignty and boundary delimitation. The Philippines did not request the Tribunal to determine which State had territorial sovereignty over any of the features, or to proceed with the delimitation of a maritime boundary. For the Philippines, the two matters, i.e. entitlement and delimitation, were not intrinsically connected and are, therefore, distinguishable.23 1.2 Award on Jurisdiction and Admissibility Following the proceedings instituted on 22 January 2013 and the completion on 24 June 2013 of the five-member Annex vii Arbitral Tribunal,24 the Award on Jurisdiction and Admissibility was issued on 29 October 2015.25 20 21 22 23 24

25

Award on Jurisdiction and Admissibility, paras. 4–7, 101 [(14)]; Award on Merits, para. 112. Award on Jurisdiction and Admissibility, para. 72; Award on Merits, paras. 35, 46. Award on Jurisdiction and Admissibility, paras. 4–6. Ibid, para. 8. i.t.l.o.s. Press Release No. 191, 25 April 2013: New arbitrator and president appointed in the arbitral proceedings instituted by the Republic of the Philippines against the People’s ­Republic of China [online: http://www.itlos.org/fileadmin/itlos/documents/press_releases _english/PR_197_E.pdf (accessed on April 2017)]. Supra note 4.

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The Tribunal satisfied itself that it had jurisdiction pursuant to Articles 28626 and 287(3)27 and Articles 128 and 929 of Annex vii of unclos, despite of China’s refusal to accept and participate in the proceedings.30 Article 9 of Annex vii of unclos provides that non-participation and nonacceptance of proceedings by one party does not constitute an obstacle to the same,31 as long as the Tribunal satisfies itself of jurisdiction and that the claim is well founded. The arbitral award is final, binding and without appeal for all parties, including those that are absentees, unless parties agreed in advance to an appellate procedure, a possibility that China precluded by not participating in the proceedings.32 Other important consequences of China’s non-participation included foregoing the opportunity of determining the rules of procedure, appointing judges and experts, submitting evidence and overall presenting its case.33 26 27 28 29

30 31

32

33

Article 286 of unclos reads: “(…) dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached (…), be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.” Article 287(3) of unclos reads: “A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex vii.” Article 1 of Annex vii of unclos reads: “(…) any party to a dispute may submit the dispute to the arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute (…)”. Article 9 of Annex vii of unclos reads: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” Stefan Talmon, “The South China Sea Arbitration: is there a case to answer?”, in: The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia (Hart Publishing: Oxford and Portland, Oregon, 2014), pp. 25–59. Article 9 of Annex vii of unclos reads: “If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” Article 296(1) of unclos reads: “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.” Article 11 of Annex vii of unclos reads: “The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.” Articles 3 to 5 of Annex vii of unclos.

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During the proceedings the Tribunal issued Procedural Order No. 4, which determined the bifurcation of the proceedings in a phase addressing the matters on jurisdiction and admissibility and a second phase on merits.34 This is another aspect in which China could have made its case heard, particularly as the Philippines opposed the bifurcation of proceedings.35 However, non-acceptance and non-participation by China does not imply that the Tribunal should not take into consideration the position of China.36 Indeed, as the Tribunal recognized, “China’s non-participation does, however, impose a special responsibility on the Tribunal. The Tribunal does not simply adopt the Philippines’ claims, and there can be no default judgement as a result of China’s non-appearance. Rather, under the terms of Article 9 of Annex vii, the Tribunal ‘must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law’ before making any award.”37 In order to achieve this purpose and to provide an award that is “well founded in fact and law”, the Tribunal took into consideration in particular the Position Paper published by China (“China’s Position Paper”),38 which it viewed as constituting de facto preliminary objections, in addition to several communications issued by China, both to the Philippines and the Permanent Court of Arbitration (“pca”) that served as registry during the proceedings.39 Indeed, throughout the proceedings the Tribunal made significant efforts to safeguard China’s procedural rights.40 From China’s Position Paper it is possible to conclude first and foremost that China did not ignore the proceedings, despite the fact that it decided not to accept or participate in them, which, in accordance with its own view, was a decision based on international law.41 34 “The Arbitral Tribunal considers that, in light of the circumstances and its duty to ‘assure to each Party a full opportunity to be heard and to present its case,’ it is appropriate to bifurcate the proceedings and to convene a hearing to consider the matter of the Arbitral Tribunal’s jurisdiction and, as necessary, the admissibility of the Philippines’ submissions (‘Hearing on Jurisdiction’).” On the Philippines opposition to bifurcation, see Award on Jurisdiction and Admissibility, para. 63; Award on Merits, para. 45. 35 Award on Jurisdiction and Admissibility, paras. 15, 16, 68. 36 The Tribunal addresses at length the legal and practical consequences of China’s nonparticipation, see Award on Jurisdiction and Admissibility, paras. 112–123. 37 Award on Jurisdiction and Admissibility, para. 12. 38 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, dated 7 December 2014 [online: http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1368895. htm (accessed on April 2017). 39 Award on Jurisdiction and Admissibility, paras. 10, 15, 27, 64. 40 Award on Merits, paras. 116–144. 41 This position has not changed since the issuing of the Award on 12 July 2016, see Foreign Ministry Spokesperson Lu Kang’s Remarks on Statement by Spokesperson of US State

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Regarding the substance of the Chinese position, China maintained its “historic rights approach”42 and considered the issue of territorial sovereignty over maritime features ancillary to the Philippines’ submissions, which would be a matter outside the scope of unclos. China viewed the subject-matter of the arbitration initiated by the Philippines as an integral part of the issue of territorial sovereignty over some islands and reefs of Nansha Qundao (the Nansha Islands). Moreover, China considered that in addition to territorial issues not being subject to unclos, maritime delimitation disputes are excluded from compulsory dispute settlement procedures provided by the Convention as a result of the abovementioned China’s 2006 Declaration. China does not consider any of these matters related with disputes concerning the interpretation or application of unclos.

42

­Department on South China Sea Arbitration Ruling, 13 July 2016 [online: http://www.fmprc .gov.cn/nanhai/eng/fyrbt_1/t1380409.htm (accessed on April 2017)]: “The Foreign Ministry has issued a statement expounding on the solemn position of the Chinese government on the South China Sea arbitration case unilaterally initiated by the Philippine side and the socalled ruling. I want to stress again that the arbitration unilaterally filed by the Aquino iii government, which violated international law, is a political farce under the cloak of law. What the arbitral tribunal did and ruled severely deviated from the common practice of international arbitration. The ruling is null and void with no binding force. It will in no way a­ ffect China’s territorial sovereignty and maritime rights and interests in the South China Sea. We oppose and refuse to accept any proposal or action based on the ruling. China will continue to safeguard territorial sovereignty and maritime rights and interests, maintain peace and stability in the South China Sea, and endeavor to peacefully resolve relevant disputes in the South China Sea with parties directly concerned through negotiation and consultation on the basis of respecting historical facts and in accordance with international law.” Also see Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines, 12 July 2016: “With regard to the award rendered on 12 July 2016 by the Arbitral Tribunal in the South China Sea arbitration established at the unilateral request of the Republic of the Philippines (hereinafter referred to as the ‘Arbitral Tribunal’), the Ministry of Foreign Affairs of the People’s Republic of China solemnly declares that the award is null and void and has no binding force. China neither accepts nor recognizes it.” [online: http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm (accessed on April 2017)]. China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea, 13 July 2016: “3. The activities of the Chinese people in the South China Sea date back to over 2,000 years ago. China is the first to have discovered, named, and explored and exploited Nanhai Zhudao and relevant waters, and the first to have continuously, peacefully and effectively exercised sovereignty and jurisdiction over them. China’s sovereignty over Nanhai Zhudao and relevant rights and interests in the South China Sea have been established in the long course of history, and are solidly grounded in history and law.” [online: http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1380615 .htm (accessed on April 2017)].

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China also viewed that the unilateral initiation of arbitration by the Philippines violated the bilateral agreement reached between both countries to resolve relevant disputes in the South China Sea through negotiations, as well as that it disregarded the commitment made by China and asean countries in the 2002 DoC to resolve the relevant disputes through negotiations by states directly concerned. The Tribunal examined at length the matter of its jurisdiction. The Tribunal found that the 2002 DoC was not legally binding and that the Treaty of Amity and Cooperation in the Southeast Asia 197643 and the dispute settlement provisions included in the Convention on Biological Diversity,44 although legally binding, did not prevent the Tribunal’s jurisdiction under Article 281(1) of u ­ nclos because there was no agreement to settle through negotiations.45 The Tribunal’s findings were not without controversy. As noted by Yoshifumi Tanaka, the interpretation of the Tribunal regarding said Article 281 is different from the one adopted in the Southern Bluefin Tuna Arbitration regarding the exclusion of Part xv,46 which underlined the existence of “two contrasting approaches to the dispute settlement system set out in [unclos].”47 This author also questioned if the Tribunal in the arbitration proceedings initiated by the Philippines against China could adjudicate a territorial issue that is ancillary to a maritime issue, considering the mixed nature of the SinoPhilippine dispute involving simultaneously territorial and maritime issues,

43 44 45

46

47

The Treaty of Amity and Cooperation in Southeast Asia, made on 24 February 1976 and entered into force 21 June 1976, published at 1025 u.n.t.s. 15063. Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992 and entered into force 29 December 1993, published at 1760 u.n.t.s. 79. Award on Jurisdiction and Admissibility, paras. 189–353. Article 281(1) of unclos reads: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.” On a different perspective see Bing Bing Jia, “The issue of admissibility in inter-state arbitration”, in: The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia (Hart Publishing: Oxford and Portland, Oregon, 2014), pp. 111–125. i.t.l.o.s., Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Cases Nos. 3 and 4, Order of 27 August 1999, paras. 52–62 [online: https:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_3_4/Order.27.08.99.E.pdf ­(accessed on April 2017)]. Yoshifumi Tanaka, “Reflections on the Philippines/China Arbitration: Award on Jurisdiction and Admissibility”, in: 15 The Law and Practice of International Courts and Tribunals (2016), pp. 320–323.

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and the fact that there is not an agreement between the parties to settle territorial and maritime disputes closely intertwined in the same proceedings.48 Tanaka also recalled the position adopted by the Arbitral Tribunal in the Chagos Marine Protected Area49 and the “ancillary test”, whereby the “Arbitral Tribunal can adjudicate a ‘minor issue of territorial sovereignty’ which is ancillary to the real issue regarding the interpretation or application of the Convention that could fall within the ambit of Article 288(1).”50 The ensuing question to be raised is what should be considered within the scope of a “minor issue of territorial sovereignty.”51 Nonetheless, regarding both instances, i.e. exclusion of Part xv of unclos and the applicability of the “ancillary test”, it should be mentioned that paragraph 4 of Article 288 provides that: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” Lastly, the Tribunal in the South China Sea proceedings also made an appraisal of the possible applicability of the obligation to exchange views under Article 283 of unclos,52 taking into account the Chagos Marine Protected Area Arbitration.53 The Tribunal found that the two States had exchanged views and that, as such, the obligation had been met, thus not precluding the Tribunal’s jurisdiction.54 Following the decision on the bifurcation of proceedings pursuant to the abovementioned Procedural Order No. 4, the Award on Jurisdiction and Admissibility took into consideration the possible effects that a decision on jurisdiction could have on the merits.55 As such, the Tribunal concluded that its jurisdiction regarding certain submissions made by the Philippines could only be considered together with the merits.56 1.3 Award on Merits One of the most complex situations in the South China Sea concerns the overlap of claims in maritime areas adjacent to islands that are disputed by two or 48 49

Ibid., pp. 318–319. Chagos Marine Protected Area (Mauritius v. United Kingdom), Award of 18 March, para. 220–221. 50 Tanaka, supra note 47, pp. 316, 318–319. 51 Ibid., p. 319. 52 See Article 283 of unclos. 53 Chagos Marine Protected Area (Mauritius v. United Kingdom), paras. 382–383. 54 Award on Jurisdiction and Admissibility, para. 343. 55 Ibid., para. 397. 56 Ibid., paras. 398–412.

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more States, particularly as unclos does not provide rules applicable to the settlement of land disputes. There are many features in the South China Sea, including small islands, islets, rocks, shoals, drying reefs and low-tide elevations, the most relevant being the Paracel Islands, the Pratas Islands, the Scarborough Shoal (which is disputed by China and the Philippines), the Natuna Islands and the Spratly Islands.57 The legal definition and regime provided by Article 121(1) of unclos58 merely presents an unclear formula applicable to the characterization of islands and the indication of the maritime areas they are allowed as a result.59 The ambiguity of this formula is consistent with the wording used in Article 10(1) of the 1958 Convention on the Territorial Sea and Contiguous Zone,60 which has been considered being part of customary international law.61 The Arbitral Tribunal made great efforts to examine and review in detail the wording of Article 121(3) of unclos, concluding that a rock in a geological sense is not limited to rocks but can also include corals and other formations, and that the “natural capacity” to “sustain” or the relevance of historical evidence should prevail over certain features actually sustaining human habitation or economic life of their own. The Arbitral Tribunal also left significant ­leeway for discretion recognizing that the necessary assessments should be made on a case-by-case basis, as well as some margin for further discussion, for example, regarding what should be the required intensity of economic activity.62 57 Schofield, supra note 12, p. 19. 58 The text of Article 121(1) of unclos reads: “An island is a naturally formed area of land, surrounded by water, which is above water at high tide.” 59 See Myron H. Nordquist, “Textual interpretation of article 121 in the UN Convention on the Law of the Sea”, in: Coexistence, Cooperation and Solidarity. Liber Amicorum Rüdiger Wolfrum, vol. 1, edited by Holger P. Hestermeyer, Doris König, Nele Matz-Lück, Volker Röben, Anja Seibert-Fohr, Peter-Tobias Stoll and Silja Vöneky (Martinus Nijhoff Publishers: Leiden, Boston, 2012), pp. 991–1036; Clive Schofield, “The trouble with islands: the definition and role of islands and rocks in maritime delimitation”, in: Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, edited by Seoung-Yong Hong and Jon Van Dyke (Martinus Nijhoff Publishers: 2009), pp. 21–37; Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (Martinus Nijhoff Publishers: Leiden, Boston, 2005), pp. 57–89; Barbara Kwiatkowska and Alfred H.A. Soons, “Entitlement to maritime areas of rocks which cannot sustain human habitation or economic life of their own”, in: 21 Netherlands Yearbook of International Law (1990), pp. 139–181. 60 Convention on the Territorial Sea and Contiguous Zone, done at Geneva on 29 April 1958 and entered into force 10 September 1964, published at 516 u.n.t.s. 205. 61 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, i.c.j. Reports 2001, paras. 167, 185 and 195; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgement, i.c.j. Reports 2012, para. 139. 62 Award on Merits, paras. 479–497, 500, 505, 540.

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Although the basis of entitlement for States to project maritime zones from islands or rocks is found in Article 121(3) of unclos,63 this provision does not address the matter of delimitation, the applicable rules being those included in Articles 15, 74 and 83 of unclos regarding, respectively, the delimitation of the territorial sea in the case of islands and rocks, and to the delimitation of the eez and the continental shelf only regarding islands. Seeing that different offshore features may generate different maritime zones, the matter of legal qualification of offshore features is central for the delimitation of maritime boundaries. Indeed, islands may be instrumental and decisive to achieve a more advantageous outcome in the delimitation of maritime boundaries. In this respect, international jurisprudence has considered on several occasions that small islands should not be taken into account or given their full potential if they produce a disproportionate effect on the delimitation line under consideration and consequently have an inequitable outcome.64 Under certain circumstances, islands may be given a partial effect in order to meet these requirements.65 Additionally, not every feature constitutes an island and consequently is permitted full maritime areas.66 63

The text of Article 121(3) of unclos reads: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” 64 North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, i.c.j. Reports 1969, para. 57; Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, i.c.j. Reports 1985, paras. 53–54, 64–73; Qatar/Bahrain, paras, 185, 219; Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, 166–168, 179–188. Also see Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, i.c.j. Reports 1993, paras. 68, 69, and Separate Opinion of Judge Schwebel, para. 128; Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, i.c.j. Reports 1984, para. 157; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, i.c.j. Reports 2002, para. 301. 65 See Derek W. Bowett, “The arbitration between the United Kingdom and France concerning the continental shelf boundary in the English Channel and South-Western approaches”, in: 49 British Yearbook of International Law (1978), pp. 1–29. Also see Robert Beckman and Clive Schofield, “Moving beyond disputes over island sovereignty: icj decision sets stage for maritime boundary delimitation in the Singapore Strait”, in: 40 Ocean Development and International Law (2009), pp. 1–35; Clive Schofield and Dustin Kuan-Hsiung Wang, “The regime of islands under unclos: implications for the South China Sea”, in: Maritime Energy Resources in Asia: Legal Regimes and Cooperation, edited by Clive Schofield (The National Bureau of Asian Research: Seattle, 2012), pp. 61–77. 66 Article 121(2) and (3) of unclos. On the interpretation of this provision, see Yann-Huei Song, “Article 121(3) of the Law of the Sea Convention and the disputed offshore islands in East Asia: a tribute to Judge Choon-Ho Park”, in: Governing Ocean Resources. New Challenges and Emerging Regimes. A Tribute to Judge Choon-Ho Park, edited by Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and Jun-Hyun Paik (Martinus Nijhoff Publishers: Leiden, Boston, 2013), pp. 61–97.

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As a result, international courts and tribunals are entrusted with the task of determining what constitutes an island or a rock, and what should their relevance be for the purpose of delimitation. For example, the Arbitral Tribunal in the arbitration between the United Kingdom and France concluded that “[t]he case of the Channel Islands must, in view of the Court, be differentiated from that of the rocks or small islands which figure in some of the precedents canvassed by the Parties in their pleadings. Possessing a considerable population and a substantial agricultural and commercial economy, they are clearly ­territorial and political units which have their own separate existence, and which are of a certain importance in their own right separately from the United Kingdom.”67 This Arbitral Award notwithstanding, it is not completely unlikely that international courts and tribunals will avoid the difficult issue of determining the legal status of a feature, as happened in the Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine) in which the International Court of Justice (“icj”) considered that the confirmation of whether Serpents’ Island was in fact an island was not relevant for the outcome of the case.68 In the South China Sea Arbitration, after reviewing the status of the features, the Tribunal found that there are no islands in the disputed maritime area for the purpose of Article 121. In particular, the Tribunal considered that the high-tide features at Scarborough Shoal, Johnson Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North) and McKennan Reef are rocks, and that Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations which generate no maritime zones of their own and are part of the eez and continental shelf of the Philippines.69 The Tribunal further attempted to clarify the meaning of Article 121(3) of unclos,70 having concluded that: 549. In such circumstances, the Tribunal considers that the most reliable evidence of the capacity of a feature will usually be the historical use

67

68 69 70

Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf, Decision of the Court of Arbitration dated 30 June 1977, reproduced in: 54 International Law Reports 1979, p. 6, para. 184. Black Sea, paras. 180, 184, 187. Also see Nicaragua v. Colombia, para. 180; Aegean Sea Continental Shelf, Judgment, i.c.j. Reports 1978, para. 83; Qatar/Bahrain, paras. 191–195, 201, 219. Award on Merits, paras. 368, 383–384, 643–647, 750. Award on Merits, paras. 279–553.

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to which it has been put. Humans have shown no shortage of i­ngenuity in establishing communities in the far reaches of the world, often in ­extremely difficult conditions. If the historical record of a feature indicates that nothing resembling a stable community has ever developed there, the most reasonable conclusion would be that the natural conditions are simply too difficult for such a community to form and that the feature is not capable of sustaining such habitation. In such circumstances, the Tribunal should consider whether there is evidence that human habitation has been prevented or ended by forces that are separate from the intrinsic capacity of the feature. War, pollution, and environmental harm could all lead to the depopulation, for a prolonged period, of a feature that, in its natural state, was capable of sustaining human habitation. In the absence of such intervening forces, however, the Tribunal can reasonably conclude that a feature that has never historically sustained a human community lacks the capacity to sustain human habitation. 550. Conversely, if a feature is presently inhabited or has historically been inhabited, the Tribunal should consider whether there is evidence to indicate that habitation was only possible through outside support. Trade and links with the outside world do not disqualify a feature to the extent that they go to improving the quality of life of its inhabitants. Where outside support is so significant that it constitutes a necessary condition for the inhabitation of a feature, however, it is no longer the feature itself that sustains human habitation. In this respect, the Tribunal notes that a purely official or military population, serviced from the outside, does not constitute evidence that a feature is capable of sustaining human habitation. Bearing in mind that the purpose of Article 121(3) is to place limits on excessive and unfair claims by States, that purpose would be undermined if a population were installed on a feature that, as such, would not be capable of sustaining human habitation, precisely to stake a claim to the territory and the maritime zones generated by it. The Tribunal notes that, as a result, evidence of human habitation that predates the creation of exclusive economic zones may be more significant than contemporary evidence, if the latter is clouded by an apparent attempt to assert a maritime claim. As previously noted, the Tribunal did not and could not have addressed the implications of the legal qualification of the aforementioned features for the purpose of maritime delimitation. Nonetheless, one may raise the question as to the relevance of the said legal qualification of the features in a possible maritime delimitation case.

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In this regard, it is worth noting that often judicial discretion has little or, in some cases, no regard for “entitlement”. This has been the cause of uncertainty, as seen, for example, in Bangladesh/Myanmar, where the International Tribunal for the Law of the Sea (itlos) was quite clear in stating that there is no general rule regarding the “effect to be given to an island in the delimitation of maritime boundary” and that such effect depends “on the geographic realities and the circumstances of the specific case.”71 In that case itlos also found that, due to its location, taking St. Martin’s Island into consideration as a base point for drawing the delimitation line “would result in an unwarranted distortion of the delimitation line, and amount to ‘judicial refashioning of geography’”,72 while acknowledging that St. Martin’s Island was “an important feature which could be considered a relevant circumstance”.73 Undoubtedly, international courts and tribunals select the relevant base points,74 however, itlos by deciding not to consider St. Martin’s Island did “ignore” geography altogether, based on its perception of fairness and without referring to a legal argument for entirely dismissing the entitlement of Bangladesh to project maritime zones from St. Martin’s Island. The matter becomes more compelling when considering that itlos did give full effect to St. Martin’s Island in delimiting the territorial sea,75 thus establishing a distinction not based on treaty law, namely between the entitlement of Bangladesh to project a territorial sea but not an eez from the island.76 This aspect is particularly salient when considering that the existence of a territorial sea is precisely the basis for a coastal State to establish an eez.77 The icj’s “elimination” of basepoints of Serpents’ Island in the Black Sea for the sake of determination of the provisional equidistance line,78 while stating that using such basepoints would amount to “judicial refashioning of geography”, did in fact refashion geography by making the entitlement of the island 71 72 73 74 75 76 77 78

Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment of 14 March 2012, Case n. 16, para. 317. Bangladesh/Myanmar, paras. 265, 319. Bangladesh/Myanmar, para. 318. Bangladesh/Myanmar, para. 264. Also see Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (Bangladesh v. India), p.c.a. Award 7 July 2014, para. 221, Black Sea, para. 137. Bangladesh/Myanmar, para. 169. Also see Black Sea, paras. 187, 188. Bangladesh/Myanmar, para. 164. Article 55 of unclos. Black Sea, paras. 149, 110.

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“disappear”.79 Moreover, the Court adopted an interpretation that departed from that used in the North Sea Continental Shelf.80 Indeed, the Court could likely have arrived at a very similar result by “discounting” the effect of the island’s basepoints as an adjustment of the provisional equidistance. Such an approach would have much less stringent requirements at the level of legal argumentation. As already mentioned, in some instances, such as the Anglo-French Continental Shelf, certain islands were not given full effect by international courts and tribunals.81 In Gulf of Maine,82 Tunisia/Libya83 and Nicaragua/Columbia84 islands were given half effect, while in Tunisia/Libya,85 Qatar/Bahrain86 and Nicaragua/Honduras87 some islands were not given any effect at all. Also, in the Eritrea/Yemen the arbitral tribunal gave full effect to islands that were found to be uninhabited,88 when in Libya/Malta the icj did not give any effect to an uninhabited island.89 Judicial discretion has created significant disparity in case law and consequently some degree of uncertainty and unpredictability. This discretion is seen, for example, in the relevance given to islands in determining and adjusting the equidistance line depending on the disparity in the length of the relevant coasts,90 if islands are near91 or far from the coast from the respective State,92 or located close to the coast of the other State beyond the m ­ edian line,93 79 80

81 82 83 84 85 86 87 88 89 90 91 92 93

Commenting on the delimitation in the Channel Islands region, in Anglo-French Continental Shelf, O’Connell stated that “the Court came perilously close to doing what it had theoretically repudiated, [i.e.] refashioning nature” (O’Connell (1989) 725). North Sea Continental Shelf, paras. 88, 91: “It is therefore not a question of totally refashioning geography whatever the facts of the situation, but given a geographical situation of quasi-equality as between the number of States, of abating the effects of an incidental special feature which an unjustifiable difference of treatment could result.” Anglo-French Continental Shelf, paras. 70, 194–203, 251. Gulf of Maine, para. 222. Tunisia/Libya, para. 129. Nicaragua v. Columbia, paras. 229, 230. Tunisia/Libya, para. 79. Also see Dissenting Opinion of Judge Evensen, paras. 14–20. Qatar/Bahrain, paras. 245, 248. Nicaragua v. Honduras, para. 145. The Eritrea—Yemen, Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), 17 December 1999, paras. 150, 151. Libya/Malta, para. 64. Libya-Malta, paras. 65, 73. Eritrea/Yemen, para. 139. Eritrea/Yemen, paras. 117, 147. Nicaragua v. Colombia, para. 238.

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which in the case of the latter may lead to “enclaving” or creating an e­ nclave of islands.94 In this regard, it has been noted that certain States of Southeast Asia have also shown a significant degree of flexibility or “­conciliatory approach” regarding the relevance given to offshore features in maritime delimitation agreements.95 Contrary to islands (and implicitly also rocks), which are natural formations of land above water at high tide, low-tide elevations are features naturally formed that are visible at low-tide but are submerged at high-tide. They are not entitled to a territorial sea and, therefore, implicitly cannot project an eez or continental shelf, as these maritime zones depend on the baselines of the territorial sea.96 The entitlement of low-tide elevations to project maritime zones and their relevance for the purpose of delimitation of maritime boundaries has been addressed in the South China Sea Arbitration. The Arbitral Tribunal took the view that these features do not generate any maritime zones of their own, but can have relevance for the purpose of locating baselines,97 as part of the baselines or, when within the territorial sea, coastal States enjoy sovereignty over them, although the Tribunal also stated that it could decide not to consider them for the purpose of location of base points.98 In the case of islands the legal argumentation used by international courts and tribunals leading to the determination of a delimitation line has not been based-centred on the respective entitlement, but rather on the external factors in order to achieve an outcome that the such international courts and tribunals consider acceptable. Therefore, seeing that there is no scrutiny of legal reasoning other than judicial discretion, the question may be raised as to the legal implications of the Award on Merits for the delimitation of maritime boundaries in disputed maritime areas between China and the Philippines in the South China Sea, particularly when considering the prominent role that judicial discretion has had and its consequence for the legal certainty and predictability. In this regard, it is worth echoing the authoritative words of Judge Jens Ingebret Evensen in his Dissenting Opinion in the case concerning the continental shelf between Tunisia and Libya: “The ‘relevant circumstances’ to be evaluated must be applied in relation to some rules of law. However, in the present case, the 94 95 96 97 98

Nicaragua v. Colombia, paras. 180, 183, 238. Tara Davenport “Southeast Asian Approaches to Maritime Boundaries,” in: 4–2 Asian Journal of International Law (2014), p. 326. Philippines/China, para. 308. Article 13 of unclos. Also see Article 7(4) and 47(4) of unclos. Bangladesh v. India, paras. 259, 264.

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Court seems to consider that delimitation based on ‘relevant circumstances’ as a purely discretionary operation where the Court more or less at will can disregard relevant geographical factors (…).”99 Lastly, regarding the Award on Merits, other relevant aspects addressed by the Tribunal concern the conclusion that China’s “nine-dash line” claim in the South China Sea, also commonly referred to “nine-dotted lines” or “U-shaped line map”,100 which includes most part of the areas and features disputed in this region, as well as China’s claim to historic rights in the maritime areas of the South China Sea, have no basis in international law.101 Indeed, as noted by several authors, although China has always maintained an historic claim to sovereignty over all the features in the South China Sea, it does not mean that, consequently, it holds an historic claim to all of the waters in the South China Sea.102 The Arbitral Tribunal further concluded that: (a) China’s activities in the South China Sea interfered with the rights of the Philippines in its eez and continental shelf;103 99 Tunisia/Libya, Dissenting Opinion of Judge Evensen, 296, para. 14. 100 On the drawing of the “nine-dash line” and the Chinese perception of the South China Sea disputes, see Bing Bing Jia and Stefan Talmon, “Introduction”, in: The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia (Hart Publishing: Oxford and Portland, Oregon, 2014), pp. 2–8; Kuen-Chen Fu, “Safeguarding China’s national interests in the South China Sea: rectification, services, leadership, and maritime delimitation”, in: 17-1 China Oceans Law Review (2013), pp. 12–19; Wu Schicun, Solving Disputes for Regional Cooperation and Development in the South China Sea: A Chinese Perspective (Chandos Publishing: Oxford, Cambridge, Philadelphia, New Delhi, 2013), pp. 34–39, 77–83. 101 Award on Merits, paras. 169–278. 102 Robert Beckman, “International law, unclos and the South China Sea”, in: Beyond Territorial Disputes in the South China Sea: Legal Framework for the Joint Development of Hydrocarbon Resources, edited by Robert Beckman, Ian Townsend-Gault, Clive Schofield, Tara Davenport and Leonardo Bernard (Edward Elgar: Cheltenham UK and Northampton Massachusetts, 2013), p. 62. Also see Clive R. Symmons, “Maritime zones from islands and rocks”, in: The South China Sea Disputes and Law of the Sea, edited by S. Jayakumar, Tommy Koh and Robert Beckman (Edward Elgar: Cheltenham UK and Northampton Massachusetts, 2014), pp. 60–63; Ted L. McDorman, “Rights and jurisdiction over resources in the South China Sea: unclos and the ‘nine-dash line’”, in: The South China Sea Disputes and Law of the Sea, edited by S. Jayakumar, Tommy Koh and Robert Beckman (Edward Elgar: Cheltenham UK and Northampton Massachusetts, 2014), pp. 144–163. 103 Award on Merits, para. 716: “(…) China has, through the operation of its marine surveillance vessels with respect to M/V Veritas Voyager on 1 to 2 March 2011 breached Article 77 of the Convention with respect to the Philippines’ sovereign rights over the non-living resources of its continental shelf in the area of Reed Bank. The Tribunal further finds that China has, by promulgating its 2012 moratorium on fishing in the South China Sea, without exception for areas of the South China Sea falling within the exclusive economic zone of the Philippines

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(b) China aggravated the dispute by failing to prevent Chinese nationals from exploiting the Philippines’ living resources;104 (c) China unlawfully prevented Filipino fishermen from traditional fishing at Scarborough Shoal;105 (d) The construction of artificial islands by China is in breach of its obligations to protect and preserve the marine environment,106 as well as the rights of the Philippines in its eez and continental shelf;107 (e) China’s law enforcement operations at sea threatened the safety of navigation;108 (f) China’s actions during the arbitral proceedings aggravated or extended the dispute;109 and that

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and without limiting the moratorium to Chinese flagged vessels, breached Article 56 of the Convention with respect to the Philippines’ sovereign rights over the living resources of its exclusive economic zone.” Award on Merits, para. 757: “(…) China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to e­ xhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of the Convention.” Award on Merits, para. 814: “(…) China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal. The Tribunal records that this decision is entirely without prejudice to the question of sovereignty over Scarborough Shoal.” Award on Merits, paras. 992 and 993: “992. Based on the considerations outlined above, the Tribunal finds that China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the Convention. 993. The Tribunal further finds that China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123, and 206 of the Convention.” Award on Merits, para. 1043: “(…) China has, through its construction of installations and artificial islands at Mischief Reef without the authorisation of the Philippines, breached ­Articles 60 and 80 of the Convention with respect to the Philippines’ sovereign rights in its exclusive economic zone and continental shelf.” Award on Merits, para. 1109: “(…) China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of Scarborough Shoal, created serious risk of collision and danger to Philippine vessels and personnel. The Tribunal finds China to have violated Rules 2, 6, 7, 8, 15, and 16 of the colregs [Convention on the International Regulations for Preventing Collisions at Sea] and, as a consequence, to be in breach of Article 94 of the Convention.” Award on Merits, para. 1181: “(…) China has in the course of these proceedings aggravated and extended the disputes between the Parties through its dredging, artificial island-­ building, and construction activities.”

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(g) China has breached its obligations as provided in Articles 279,110 296111 and 300112 of unclos. 2 Part ii – China–Philippines Relations beyond the Arbitral Award 2.1 Provisional Arrangements of a Practical Nature The legal principle applicable to maritime boundaries is that of delimitation by agreement.113 There is no obligation under international law requiring States to enter into a maritime delimitation agreement. Should States fail to settle their maritime boundaries by means of negotiation or compulsory settlement mechanism, unclos provides that States may agree on the adoption of provisional arrangements pursuant to Articles 74(3) and 83(3). Similar to maritime delimitation treaties, although States are required by international law to enter into meaningful negotiations and to cooperate in trying to settle their disputes by peaceful means, they are not legally required to implement provisional arrangements. Indeed, these provisions merely reinforce the general obligation to negotiate in good faith and of mutual-restraint, without requiring or establishing the obligation to enter into an agreement regarding the development of common mineral resources. In addition, the legal regime applicable to enclosed and semi-enclosed seas – such as the South China Sea – determines that coastal States “should co-operate with each other in the exercise of the rights and in the performance of their duties under [unclos]”, without, however, making any reference to cooperation regarding non-living resources or to an obligation to enter into an agreement.114 Nonetheless, as claiming States may not unilaterally exploit non-living resources found in disputed maritime areas, cooperation is undoubtedly indispensable to legally develop these resources that would otherwise be off-limits. 110 Article 279 of unclos reads: “States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.” 111 Article 296 of unclos reads: “1. Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute. 2. Any such decision shall have no binding force except between the parties and in respect of that particular dispute.” 112 Article 300 of unclos reads: “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” 113 Articles 74(1) and 83(1) of unclos. 114 Article 123 of unclos.

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In this regard, joint development allows for two or more States to implement a cooperative regime in disputed maritime areas to their own benefit, but also of the interests of public or private entities undertaking exploitation and exploration activities, providing them with legal certainty and security.115 They create a legal regime applicable to the exploration and exploitation of marine natural resources, either or both living and non-living, as well as other uses and activities and the overall management of the disputed maritime area.116 These agreements can also be used in situations where common resources straddle a boundary line, i.e. after the delimitation of maritime boundaries.117 Moreover, cooperation promotes resource efficiency, seeing that competing drilling of the same hydrocarbon deposit not only is unlawful, but also inefficient and can potentially result in the waste of resources due to own characteristics and the uncontrolled release of pressure from within the deposit. Hence M.W. Mouton’s adage: “never two straws in one glass”.118 Joint development agreements essentially have a functional character and are driven by economic purposes. They are pragmatic arrangements that take into consideration, first and foremost, the interests of the respective States. They are exclusively the outcome of States willingness to cooperate and are strictly connected with the particular aspects of every situation upon which States draw their decision to negotiate and implement a joint development regime. As a result, the specificities of the relation between the relevant States and the regional context play a decisive role in the negotiation, drafting and implementation of a joint development agreement and may vary considerably from one case to the other. Nonetheless, despite the disparity of these practices and as also noted by Deng Xiaoping, they are based on the principle of setting aside disputes and 115 Vasco Becker-Weinberg, “Seabed activities and the protection and preservation of the marine environment in disputed maritime areas of the Asia-Pacific region”, in: Securing the Ocean for the Next Generation, Papers from the Law of the Sea Institute, UC BerkeleyKorean Institute of Ocean Science and Technology Conference, held in Seoul, Korea, May 2012 [online: http://www.law.berkeley.edu/files/Becker-Weinberg-final.pdf (accessed on April 2017)]; also published by the Law of the Sea Institute, edited by Harry N. Scheiber and Moon Sang Kwon, pp. 253–299. 116 Becker-Weinberg, Joint, p. 8. 117 For an analysis of State practice and of the legal regime applicable to joint development before and after the delimitation of maritime boundaries, see Becker-Weinberg, Joint, pp. 69–140. 118 M.W. Mouton, “The continental shelf”, in: 85 Recueil des Cours de l’Academie de Droit International (1954-I), p. 421.

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jointly developing common resources.119 Indeed, such arrangements do not hinder coastal States’ sovereignty claims. Notwithstanding certain models of agreements having been put forward, there is a significant disparity between existing agreements. This is also true regarding the joint development regimes adopted over the years in the South China Sea.120 Joint development agreements depend on States reaching a consensus on certain essential legal elements, namely the identification of the designated area and of the natural resources to be exploited, the establishment of a jurisdictional and legal framework, as well as the terms and conditions under which joint operations are to take place. 2.2 Economic Activities in Disputed Maritime Areas During the negotiation and drafting of unclos, several States expressed concern that lack of agreement on the delimitation of maritime areas should not hinder the possibility of undertaking economic activities in disputed maritime areas.121 In line with this general insight and as part of the compromise on (a) the criteria to be applied to delimitation of the exclusive economic zone (eez) and the continental shelf, (b) on interim measures and (c) on the settlement of delimitation disputes,122 Articles 74(3) and 83(3) of unclos determine that “[p]ending agreement (…), 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.”

119 Deng Xiaoping, “Speech at the third plenary session of the Central Advisory Commission of the Communist Party of China, October 22, 1984”, in: Selected Works of Deng Xiaoping, vol. 3 (Foreign Languages Press: Beijing, 1984). 120 Becker-Weinberg, Joint, pp. 163–165. 121 Report by the Chairman of Negotiating Group 7 on the work of the Group at its 17th–27th meetings, NG7/24, 14 September 1978, Document A/CONF.62/RCNG/2, unclos iii Off. Rec. Volume x, p. 171. Also see Report of the Chairman of the negotiating group 7, Document NG7/45, unclos Off. Rec. V. xii; Reports of the Committees and Negotiating Groups on negotiations at the resumed seventh session contained in a single document both for the purposes of record and for the convenience of delegations, Document A/CONF.62/ RCNG/1, unclos iii Off. Rec. Volume x., pp. 123–124. 122 Report by the Chairman of Negotiating Group 7 on the work of the Group at its 17th–27th meetings, NG7/24, 14 September 1978, Document A/CONF.62/RCNG/2, unclos iii Off. Rec. Volume x, pp. 170–172.

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International courts and tribunals have also recognized the notion that maritime disputes should not be an obstacle to the development of economic activities. In 2007, the Arbitral Tribunal in the case between Guyana and ­Suriname underlined that the obligation contained in Article 83(3) of unclos “constitutes an implicit acknowledgment of the importance of avoiding the suspension of economic development in a disputed maritime area, as long as such activities do not affect the reaching of a final agreement.”123 It has been noted, however, that despite encouraging restraint and practical co-operation pending final delimitation, in light of the negotiating history of Article 83(3) of unclos it may “be difficult to see that any great purpose is served by this provision.”124 In fact, Rainer Lagoni considered this provision and Article 74(3) of unclos as not being “very enlightening”.125 These provisions are undeniably not of much use for the delimitation of the eez or the continental shelf between States with opposite or adjacent coasts, nor for the assessment of the scope and content of provisional arrangements referred therein. Nonetheless, State practice and international jurisprudence have considered the implementation of provisional measures a valuable legal option pending delimitation, particularly joint development agreements of offshore hydrocarbon deposits. The early examples of joint development pending maritime delimitation precede the drafting of unclos.126 Moreover, also before unclos, and despite of the reservations of international courts and tribunals in granting full weight to offshore hydrocarbon deposits for the purpose of maritime delimitation, the complexities represented by transboundary resources and the advantages of joint development agreements in these cases has been acknowledged by international jurisprudence. 123 Guyana/Suriname, Award of the Arbitral Tribunal, 17 September 2007, para. 460. 124 Edward Duncan Brown, The International Law of the Sea, vol. 1, Introductory Manual (Dartmouth: Aldershot, Broofield usa, Singapore, Sydney, 1994), p. 159. Brown underlines that “it can certainly do no harm to encourage restraint and practical co-operation pending the establishment of boundaries.” On the drafting history of Article 83(3) of unclos see Centre for Oceans Law and Policy, University of Virginia School of Law, United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 2, edited by Satya N. Nandan and Shabtai Rosenne (Martinus Nijhoff Publishers: Dordrecht, Boston, London), pp. 948– 985. It underlines the concern manifested by certain States regarding the possible interpretation of this provision as introducing a moratorium prohibiting economic activities in the disputed maritime area (p. 975). 125 Rainer Lagoni, “Interim measures pending maritime delimitation agreements”, in: 78-2 American Journal of International Law (April 1984), p. 358. 126 Bahrain-Saudi Arabia Frontier Agreement, done on 22 February 1958 and entered into force on 26 February 1958, published at 1733 u.n.t.s. 3.

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In the landmark North Sea Continental Shelf cases, the icj considered that it would be within States’ powers to determine how to proceed in the event of transboundary resources, acknowledging as a possible outcome the “joint jurisdiction” of all or part of the overlapping maritime areas, should States fail to reach an agreement or not intend to equally divide such areas.127 Judge Jessup further stated in his Separate Opinion that the reference made to the cooperative development of offshore hydrocarbon deposits constituted an attempt to contribute towards a better understanding of the principles of equity.128 Likewise, the recommendations made by Judge Evensen in his Dissenting Opinion in the Case Concerning the Continental Shelf between Tunisia and Libya had also the same intent and reportedly did contribute towards the implementation of a joint development regime between both countries.129 Judge Evensen essentially considered that cooperative regimes, such as joint ­development agreements, could be a corollary for other equity considerations that had already been referred by the icj in the North Sea Continental Shelf cases.130 The Arbitral Tribunal also considered in the second stage of proceedings concerning maritime delimitation between Eritrea and Yemen that these countries should give every consideration to cooperative exploitation of resources that straddle maritime boundaries.131 In fact, in the case between Guyana and Suriname, the Arbitral Tribunal went as far as acknowledging that joint development agreements have been “particularly encouraged by international courts and tribunals”, although it did not elaborate on the grounds for such a solution being legally required u ­ nder 127 North Sea Continental Shelf cases, paras. 94, 97, 99, 101(C)(2), (D)(2). 128 Separate Opinion of Judge Jessup, paras. 78, 83, North Sea Continental Shelf cases. Also see Dissenting Opinion of Vice-President Weeramantry, paras. 108–113, Kasikilil Sedudu Island (Botswana/Namibia) Judgment, i.c.j. Report 1999, p. 1045. 129 Agreement between the Great Libyan Arab Socialist People’s Jamahariya and the Republic of Tunisia to Implement the Judgment of the International Court of Justice in the Tunisia/Libya Continental Shelf Case, done at Benghazi on 8 August 1988, reproduced in: International Maritime Boundaries, vol. 2, edited by Jonathan. I. Charney and Lewis M. Alexander (Martinus Nijhoff Publishers: Dordrecht, Boston, London, 1993), pp. 1679–1680. On the case before the icj see Jonathan I. Charney, “The delimitation of ocean boundaries”, in: Rights to Oceanic Resources. Deciding and Drawing Maritime Boundaries, edited by Dorinda G. Dallmeyer and Louis Devorsey, Jr. (Martinus Nijhoff Publishers: Dordrecht, Boston, London, 1989), pp. 40–41. On the agreement see Masahiro Miyoshi, “The joint development of offshore oil and gas in relation to maritime boundary delimitation”, in: 2–5 Maritime Briefing/International Boundaries Research Unit (1999), pp. 35–36. 130 Dissenting Opinion of Judge Evensen, pp. 320–321, Continental Shelf case (Tunisia/Libya). 131 Eritrea/Yemen, paras. 84–86.

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international law.132 In that case, the Tribunal also considered that the “oil practice” between States could not be taken into account in the delimitation of the maritime boundary, except if such practice would have been based on express or tacit agreement between States.133 In the maritime delimitation case between Myanmar and Bangladesh, ­i tlos noted that it was not “unusual” for States to enter into agreements to address the “complex legal and practical problems” resulting from the delimitation of maritime boundaries, such as those involving transboundary resources. itlos specifically referred to an area that was beyond 200nm from the coast of Bangladesh but within 200nm from the coast of Myanmar, thus accepting the possibility of such agreements taking place in areas of overlapping claims beyond 200nm, in the outer continental shelf.134 In the 2014 award on the Bay of Bengal Maritime Boundary Arbitration, the Tribunal found that “[t]he establishment of a maritime area in which States concerned have shared rights is not unknown under the Convention”, and that “[i]t is for the [States] to determine the measures they consider appropriate in this respect, including through the conclusion of further agreements or the creation of a cooperative arrangement.”135 2.3 States’ Obligations in Disputed Maritime Areas As previously mentioned, the Arbitral Tribunal in the South China Sea arbitration examined China’s actions in the disputed maritime areas and the fulfilment of her obligations in these areas, namely concerning fishing, construction, use and operation of offshore installations and artificial islands, the protection and preservation of the marine environment, and the safety of navigation. In this regard, it is worth mentioning from the outset that the lack of an obligation to enter into provisional arrangements,136 or for that matter to establish maritime boundaries, does not mean that States are not bound to certain obligations in a disputed maritime area.137 These include the aforementioned 132 133 134 135 136

Guyana/Suriname, paras. 462–463. Ibid, para. 390. Bangladesh/Myanmar, para. 472. Bangladesh v. India, paras. 507–508. Ian Townsend-Gault and William G. Stormont, “Offshore petroleum joint development arrangements: functional instrument? Compromise? Obligation?”, in: The Peaceful Management of Transboundary Resources, edited by Gerald H. Blake, William J. Hildesley, Martin A. Pratt, Rebecca J. Ridley and Clive H. Schofield (Graham and Trotman/Martinus Nijhoff: London, Dordrecht, Boston, 1995), p. 58. 137 Peter D. Cameron, “The rules of engagement: developing cross-border petroleum deposits in the North Sea and the Caribbean”, in: 55 International and Comparative Law Quarterly

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obligation to cooperate and negotiate in good faith the peaceful settlement of disputes, to clarify claims and their consistency with unclos, to identify the disputed maritime area, to exercise self-restraint and to refrain from the use or threat of the use of force. States must also inform neighbouring States of the existence and the known location of common resources. The obligation of due regard in unclos is the reflection of the balance achieved with respect to the rights and freedoms of States, which is intrinsically connected with the organization of the different maritime areas, both within and beyond national jurisdiction. Accordingly, States must exercise their rights while having due regard for the rights and freedoms of other States and in a manner that does not constitute an abuse of right.138 Such rights have a “relative character”. Indeed, the icj in the Fisheries Jurisdiction case noted that the concept of “reasonable regard” implied that the rights of coastal States were not absolute and that, consequently, the different interests of States in the high seas should be reconciled.139 unclos includes several provisions that safeguard the rights and duties of third States in the exclusive economic zone (eez). Article 58(1) provides that all States enjoy in the eez the freedoms of navigation, over-flight and of laying submarine cables and pipelines.140 In paragraph 3 of this provision, the Convention also specifies that States shall have due regard for the rights and obligations of coastal States and shall comply with its laws and regulations in the eez. The reference to due regard had already been included in Article 2 of the 1958 Geneva Convention on the High Seas when mentioning that the freedoms of the high seas should be exercised with “reasonable regard to the interests of other States”. Yet, the content and extent of the due regard obligation must be considered in light of the circumstances of each case when different uses are in conflict. This is the same ratio as included in Article 59 of unclos that is applicable to situations where the Convention does not determine the rights and jurisdiction of coastal States and other States in the eez, despite the fact that

(2006), pp. 565–567. Also see Ian Townsend-Gault, “Petroleum development offshore: legal and contractual issues”, in: Petroleum Investment Policies in Developing Countries, edited by Nicky Beredjick and Thomas Wälde (Graham and Trotman: London, 1988), p. 145; Rainer Lagoni, “Oil and gas deposits across national frontiers”, in: 73-1 American Journal of International Law (January 1979), p. 243. 138 Article 300 of unclos. 139 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, i.c.j. Reports 1974, paras. 52, 55, 57 to 60, 66, 68 to 70. 140 Articles 55, 56(2) and 87 of unclos.

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unclos did not include these situations within the scope of the compulsory settlement mechanism in Part xv.141 unclos does not include rules concerning the exercise of States’ rights in disputed maritime areas, even though, in these cases, the need for a similar balance is indispensable. In certain situations, despite two or more States making opposing or overlapping legal claims, it may happen that one or more of these States unilaterally undertakes seabed activities and constructs and operates offshore installations, while not having regard for the rights and freedoms of other claiming States, as well as those of third States. This is the case of States’ obligation to protect and preserve the marine environment and the obligation to safeguard the rights of third States, such as the freedom of navigation. Particularly in what concerns the general obligation of protection and preservation of the marine environment, it should be noted that this is not a vague obligation. As a matter of fact, the Convention recognizes in Article 192 that this is an obligation for all States, without making any distinction or referring to maritime areas within or outside national jurisdiction. It also provides in Section 4 of Part xii that States shall monitor the risks and effects of pollution.142 In this respect, itlos recognized that the requirement under general international law to undertake an environmental impact assessment where there is a risk that activities may have a significant adverse impact in a transboundary context, in particular, with respect to shared natural resources, may also be applicable to activities in the Area. itlos concluded that customary international law provided that environmental impact assessments should be included in the system of consultations and prior notifications set out in ­Article 142 of unclos.143 Considering the itlos’s dictum that States are required to make environmental impact assessments in areas within their national jurisdiction and in the Area, it could be supported that there would be a similar concern for activities in disputed maritime areas under the duty of due regard, even though itlos reaffirmed that general international law does not specify the scope and content of environmental impact assessments.144 In the case between Guyana and Suriname the Arbitral Tribunal considered that the duty to negotiate in good faith required States to have “a conciliatory 141 Article 297(1) lit. a) of unclos, a contrario. 142 Articles 204 to 206 of unclos. 143 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, paras. 147–150. 144 Ibid.

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approach to negotiations, pursuant to which they would be prepared to make ­concessions in the pursuit of a provisional arrangement”, particularly in view of the fact that such provisional arrangements are by definition temporary and without prejudice of final delimitation.145 In that particular case, the Arbitral Tribunal concluded that both countries had violated their obligation to make every effort to enter into provisional arrangements and consequently for having jeopardised a final delimitation agreement. Specifically, Guyana for not having informed Suriname of the intention to explore the resources of the disputed maritime area and failing to provide official detailed notice of the planned activities, as well as for not having engaged Suriname earlier on in discussions concerning drilling activities. Concerning Suriname, the Arbitral Tribunal considered that it had not engaged in dialogue with Guyana in the spirit of understanding and cooperation as required by unclos, resorting instead to a threatening conduct.146 The Tribunal also concluded that within such efforts to enter into provisional arrangements, Guyana should have further attempted to seek the cooperation of Suriname regarding the undertaking of activities. Accordingly, Guyana should have offered to share the results of the exploration and given Suriname the opportunity to observe these activities, as well as to share the financial benefits gained.147 The Arbitral Tribunal also considered that only acts that do not cause a physical change to the marine environment, such as seismic surveys, would generally be regarded as acts that, although unilateral, would not have the effect of jeopardizing or hampering a final agreement on maritime delimitation.148 However, in the order issued by the Special Chamber of itlos following the request by Côte d’Ivoire that the Special Chamber prescribe provisional measures to suspend all ongoing oil exploration and exploitation operations ­conducted by Ghana in the disputed area and to refrain from granting any new permit for oil exploration and exploitation there, the Special Chamber found that “the acquisition and use of information about the resources of the disputed area would create a risk of irreversible prejudice to the rights of Côte d’Ivoire should the Special Chamber, in its decision on the merits, find that Côte d’Ivoire has rights in all or any part of the disputed area;” and “that the exploration and exploitation activities, as planned by Ghana, may cause irreparable prejudice to the 145 146 147 148

Guyana/Suriname, para. 461. Ibid, paras. 471–486, 488. Ibid, para. 477. Ibid, paras. 466–467, 480–481.

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sovereign and exclusive rights invoked by Côte d’Ivoire in the continental shelf and ­superjacent waters of the disputed area, before a decision on the merits is given by the Special Chamber, and that the risk of such prejudice is imminent.”149 But the Special Chamber also found that “the suspension of ongoing activities conducted by Ghana in respect of which drilling has already taken place would entail the risk of considerable financial loss to Ghana and its concessionaires and could also pose a serious danger to the marine environment resulting, in particular, from the deterioration of equipment.”150 The Special Chamber further considered “an order suspending all exploration or exploitation activities conducted by or on behalf of Ghana in the disputed area, including activities in respect of which drilling has already taken place, would therefore cause prejudice to the rights claimed by Ghana and create an undue burden on it.”151 In balancing the different interests at hand, on the one hand, safeguarding the rights of Côte d’Ivoire, and on the other hand, the protection and preservation of the marine environment, the Chamber ordered Ghana to refrain from making new drilling in the disputed maritime area, instead of suspending all on-going exploration and exploitation activities, as Côte d’Ivoire had requested.152 The Special Chamber further ordered Ghana to take all necessary measures to prevent information on such activities to be used in any manner to the detriment of Côte d’Ivoire, as well as to monitor said activities to prevent serious harm to the marine environment. The Special Chamber also ordered that both States should pursue cooperation and refrain from unilateral action that could aggravate the dispute. It should be noted, however, that this order is, to a certain extent, a deviation from previous decisions by international courts and tribunals, namely the aforementioned case between Guyana and Suriname with regard to the understanding that drilling by one State in a disputed maritime area may be accepted pending the settlement of the dispute, in this case, based on economic and environmental considerations.153

149 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Request for the prescription of provisional measures, Case n. 23, 25 April 2015, paras. 95–96. 150 Ibid, para. 98. 151 Ibid, para. 100. 152 Ibid, para. 102. 153 On this case, see 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”, in: 46 Ocean Development & International Law (2015), pp. 315–330.

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3 Conclusions The assessments made the Arbitral Tribunal in the South China Sea arbitration seek to clarify the legal consistency of States’ claims and the status of offshore features located in the disputed maritime area and hence the maritime zones they can project. Indeed, it is noteworthy that the Award on Merits was the very first attempt made by an international court or tribunal to clarify the interpretation and application of Article 121(3) of unclos. As such, despite the fact that the Award on Merits is only legally binding on the Philippines and China, it may also be expected to have an impact on other States in the South China Sea regarding many of their respective maritime claims. Consequently, it might potentially facilitate the identification of possible maritime areas where provisional arrangements could be implemented, such as joint development regimes, seeing that the identification of a joint development area is one of the most complex elements to tackle, particularly when States are ambiguous regarding the identification of disputed maritime areas and the legal title upon which they build their respective claims. The findings of the Arbitral Tribunal could also have a wider influence on State practice, particularly in other parts of the world that share some of the complexities of the South China Sea. Notwithstanding, it remains uncertain what is the real legal impact for the purpose of maritime delimitation, if any, of the appraisal made by the Tribunal regarding the offshore features, seeing that case law on maritime boundary delimitation thus far has predominately placed emphasis in achieving a delimitation that is equitable, making use of considerable judicial discretion, rather than perhaps dealing with many of the complex questions regarding the intricate relation between “entitlement” and “delimitation”. The predominant use of judicial discretion to achieve an equitable result as a rule rather than a safeguard, and the absence of legal interpretation and application of treaty law, has resulted in little progress being made in developing international law or improving consistency and predictability of case law. An important contribution made by the arbitral proceedings was to confirm what are some of the most important States’ obligations in disputed maritime areas, particularly regarding the protection and the preservation of the marine environment, as well as the rights of the Philippines in certain maritime areas, such as regarding fishing by Philippine fishermen in the waters surrounding the Scarborough Shoal. This recognition might have some impact between the two States but also in the region and beyond. Consistent with China’s position of non-participation and non-acceptance adopted during the arbitral proceedings – which has no relevance on the legal binding nature of the arbitration proceedings instituted by the Philippines

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against China – it might be the case that China has chosen not to comply with the Award on Merits but does not ignore completely the outcome of the arbitration. Indeed, this was a decision that was highly anticipated by the relevant States, as well as by the international community as a whole. As a result, the recently unlocked path of cooperation chosen by China together with the current leadership of the Philippines and the overall attempt by both countries to pursue the goal of improving China–Philippines relations might constitute an opportunity to implement a cooperative regime that indirectly reflects some of the assessments made by the Tribunal. Yet, although joint development could be a valuable path for both States to pursue and encourage economic activities in disputed maritime areas, while, at the same time, undertaking their obligations in disputed maritime areas and providing the necessary legal framework and certainty that is indispensable, its seems unlikely that China and the Philippines will agree on the implementation of a provisional arrangement, essentially due to political reasons. Nonetheless, it seems that for the moment the Philippines and China have chosen to decrease tensions and to seek rapprochement between the two countries.

Part 2 The Interface of unclos and Emerging Environmental, Disaster & Energy Challenges

∵

Chapter 8

Interpreting the Dispute Settlement Limitation on Fisheries after the Chagos Marine Protected Area Arbitration Alexandros X.M. Ntovas 1 Introduction The disagreement between the Republic of Mauritius (Mauritius) and the United Kingdom of Great Britain and Northern Ireland (UK) over the ­establishment, by the latter within the context of its administration over the ­British Indian Ocean Territory (biot), of a Marine Protected Area (mpa) around the Chagos Archipelago on 1 April 2010, put under scrutiny the United Nations Convention on the Law of the Sea1 with respect to several provisions of both substantive and procedural nature, as well as lex specialis between the Parties.2 Mauritius contended that the unilateral establishment of the mpa took place in violation of the Convention, and other rules of international law not incompatible with the Convention, in seeking to obtain an authoritative and legally binding declaration regarding its legality. In particular, Mauritius submitted four claims, in which requested the Tribunal to adjudge and declare that: first, the UK was not entitled to declare an mpa or other maritime zones because it was not the ‘coastal State’ within the meaning of inter alia arts 2, 55, 56 and 76 of the Convention; and/or, second, having regard to the commitments that it has made in relation to the Chagos Archipelago, UK was not entitled unilaterally to declare an mpa or other maritime zones because Mauritius has rights as a coastal State within the meaning of inter alia arts 56(1) (b-iii) and 76(8) losc; and/or, third, that UK should take no steps that may prevent the Commission on the Limits of the Continental Shelf (ccls) from making recommendations to Mauritius in respect of any full submission that 1 Signed in Montego Bay on 10 December 1982 and entered into force on 16 November 1994 [1833UNTS3] (hereinafter the ‘Convention’ or losc). 2 As such, they have been considered the undertakings made by the UK at the time of the detachment of the Chagos Archipelago, and repeatedly reaffirmed thereafter; qv., ‘Record of a Meeting held in Lancaster House at 2.30 p.m. on Thursday 23rd September 1965’ (hereinafter the ‘Lancaster House Undertakings’).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_010

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Mauritius may make thereto regarding the Chagos Archipelago under art. 76 losc. UK in response counter-claimed that the Tribunal should declare itself without jurisdiction over each of the claims, or in the alternative to dismiss them. The Tribunal’s award found by a majority of three votes to two, that it lacked jurisdiction to consider Mauritius’ first two claims in holding that the dispute between the Parties expressed through these claims in fact concerned the question of sovereignty over the Chagos Archipelago; a matter that insofar as did not concern the interpretation or application of the Convention divested the Tribunal of its jurisdiction to decide thereon. Concerning the third claim, the Tribunal, however, unanimously found that there was not a dispute between the Parties concerning submissions to the ccls and that it was therefore unnecessary to exercise jurisdiction in this respect on the issue.3 The dispute, as such, featured not only important questions characterising the evolving rights and obligations of States regarding the protection and preservation of the marine environment, but moreover as these were put forward against the fundamental background of sovereignty, one of the most iconic themes that run through general public international law, their legal nature transcended the jurisdictional limits of the Convention. In that sense, as it would have been inappropriate not to acknowledge the main intentions prompting Mauritius’ claims, it would be respectively futile – in view of the organic development of the Convention’s reach within a constitutional discourse4– to admonish such claims as ‘artificial and baseless’.5 Despite the lack of a substantive decision in view of the jurisdictional grounds on the two first claims, the disagreement being canvassed against claims of sovereignty it may have uttered the law of the sea in a post-modern era, when States will need to revisit crucial issues that were intentionally dealt with vague and ambiguous drafting due to unresolved political differences6 at the time in the context of

3 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18th March 2015, Arbitration under Annex vii of the United Nations Convention on the Law of the Sea / Permanent Court of Arbitration as the administering institution – case number 2011/03 (hereinafter ‘Award’ or ‘Chagos award’), pg. 215 §547(A) dispositif. The decision has not been included yet in the Reports of International Arbitral Awards (riaa), but it can be accessed directly, along with all the materials cited, at . 4 Among others, see P. Allott, ‘Mare Nostrum: A New International Law of the Sea’, American Journal of International Law 86 (1992): 764 and B.H. Oxman, ‘The Rule of Law and the United Nations Convention on the Law of the Sea’, European Journal of International Law 7 (1996): 353. 5 Counter-Memorial submitted by the United Kingdom (15 July 2013), pg 3. ¶1.10. 6 H. Caminos and M.R. Molito, ‘Progressive Development of International Law and the Package Deal’, American Journal of International Law, 79 (1985): 871.

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package deal negotiations7 and put its application in perspective in the light of other processes, such as the request for an advisory opinion by the International Court of Justice under the circumstances.8 In its last submission, Mauritius requested the Tribunal to adjudge and declare the mpa incompatible with the substantive and procedural obligations of the UK under the Convention, including inter alia arts 2, 55, 56, 63, 64, 194 and 300, as well as art. 7 of the 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’ (‘fourth submission’).9 Following the objections made by the UK, the Tribunal declared itself without jurisdiction based on art. 297(3)(a) losc (‘fishery limitation’) to pronounce on arts 63 and 64 losc, and art. 7 unfsa, but it found unanimously that its jurisdiction remained unaffected by the other limitation provided in art. 297(1) losc, and considered the fourth submission in relation to the remaining articles of the Convention. On the merits it found also unanimously that Mauritius holds: legally binding rights to fish in the waters surrounding the Chagos Archipelago; to the eventual return of the Chagos Archipelago when no longer needed by the UK for defence purposes; and to the preservation of the benefit of any minerals or oil discovered in or near the Chagos Archipelago pending its eventual return. In finding so, the Tribunal held that UK failed to give due regard to these rights and breached its obligations under the Convention in declaring the mpa.10 The present chapter places its focus accordingly on the jurisdictional aspects by examining the interpretation of the fishery limitation in the context of the fourth submission, and the interplay between the Convention and the Agreement, in arguing that in the context of the latter the pronouncements of the Tribunal have provided a rather dubious authority for future reference. The voluminous written submissions and lengthy hearings transcript reveal the considerable formative effect exerted by the pleadings at hearing on shaping the concluding arguments of the Parties. With regard to the fishery limitation in particular, Mauritius seemed to be throughout the proceedings locked in a 7 8 9 10

B. Buzan, ‘Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea’, American Journal of International Law, 75 (1981): 324. At the time of writing the United Nations General Assembly requested by means of Resolution 71/292 (22 June 2017) the Court to render an advisory opinion on the ‘Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965’. Signed in New York on 4 August 1995 and entered into force on 11 December 2001 [2167UNTS3] (hereinafter ‘the Agreement’ or unfsa). Award, pg. 215 §547(B) dispositif.

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sterile sovereign argument that deflected attention from, or obscured, promising yet in parts incoherently developed arguments that failed to make clear connections with the black letter provisions of the Convention, and even more so to establish a meaningful connection with those provided in the Agreement. On the contrary, the UK brought a robust objection strategy focused on a conservative approach ingrained in a thorough textbook analysis that sought to shine up to the Tribunal’s textual favouritism and downplay the latently underlying constructive ambiguities and unresolved issues in the provisions of the Convention. Overall, the dynamic of the arguments with regard to the fishery limitation, resembled to a situation of ‘bringing a knife to a gunfight’ with its interpretation resulting into an overly restrictive yet unconvincing in all its brevity pronouncement by the Tribunal, while the minority tried to keep the provision intact by considering it inapplicable on the facts. Due to space restriction in the chapter, it is assumed that the reader has some prior knowledge of the Award, and of the facts surrounding the arbitration, along with the arguments advanced by the Parties in the course of the proceedings. 2

The Tribunal’s Pronouncements on the Fishery Limitation

Mauritius in the context of its fourth submission contended that the mpa was incompatible with the substantive and procedural obligations of the UK under the Convention, including inter alia arts 63, 64, as well as art. 7 unfsa. On this point, the UK objected to the jurisdiction of the Tribunal on the ground of the mpa constituting ‘a fisheries measure’,11 which the Convention subsequently excludes from its third-party settlement procedures entailing binding decisions due to the operation of the automatic limitations in art. 297(3)(a) losc.12 The Tribunal in approaching the question of its jurisdiction rightly observed that the point dividing the Parties was the interpretation and application of art. 297 of the Convention, which in turn essentially required the characterization proper of the dispute in this context.13 In doing so, it did not accept that the mpa under the expansive terms proclaimed by the UK was solely a measure relating to fisheries.14 Siding for the rest of the argument on this point 11

12 13 14

‘Hearing on jurisdiction and the merits, in the Matter of arbitration between the Republic of Mauritius and the United Kingdom of Great Britain and Northern Ireland’ (22 April – 9 May 2014), Permanent Court of Arbitration – Arbitration under Annex vii of the United Nations Convention on the Law of the Sea (hereinafter ‘Final Transcript’), pg. 1274:22-3. Final Transcript, pg. 804:2-8. Award, pg. 111 §283. Ibid., pgs 111–112 §286.

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with the UK, the Tribunal’s ratio specific to the application of art. 297(3)(a) losc is to be found essentially in paragraphs 297, 299 and 300, along with an obiter dictum following up in paragraph 301 of the Award. The line of reasoning begins with the finding that a part of the UK’S Lancaster House Undertakings addressed fishing rights, clearly related to living resources, yet insofar as these apply to the exclusive economic zone (eez), they fall under the exclusion from jurisdiction as set out in art. 297(3)(a) losc. This is premised on the rejection of the argument posited by Mauritius that ‘a distinction can be made between disputes regarding the sovereign rights of the coastal State with respect to living resources, and disputes regarding the rights of other States in the [eez]’,15 which it would have seen only the former to be excluded from compulsory settlement.16 The Tribunal held that ‘the two are intertwined, and a dispute regarding Mauritius’ claimed fishing rights in the eez cannot be separated from the exercise of the United Kingdom’s sovereign rights with respect to living resources’, while in extrapolating even further viewed that ‘in nearly any imaginable situation, a dispute will exist precisely because the coastal State’s conception of its sovereign rights conflicts with the other party’s understanding of its own rights’.17 The reasoning was then directed to consider the procedural rights to consultation and coordination claimed by Mauritius pursuant to arts 63, 64 losc, and art. 7 unfsa, which similarly to their substantive obligations, the Tribunal noted to arise directly from the Convention and apply wherever the nationals of another State fish for straddling or highly migratory fish stocks, without being depended on the Lancaster House Undertakings. The Tribunal accepted that arts 63 and 64 losc, as well as art. 7 of the unfsa, are on their face fishery measures and consequently in their application in the eez are subject to the exclusion in art. 297(3)(a). In doing so, the Tribunal fitted in the line of reasoning the precedent of the Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them,18 which contrary to Mauritius’ assertion, found to afford no basis for the proposition that procedural obligations are not caught by the exclusion, reiterating its holding that a distinction between disputes in the eez of the coastal State over sovereign rights and those 15 16 17 18

Final Transcript, pg. 477:16-9. Ibid., pgs 477:16-18, and 1119–1122. Award, pg. 116 §297. Award of 11th April 2006, Arbitration under Annex vii of the United Nations Convention on the Law of the Sea / Permanent Court of Arbitration as the administering institution – case number 2004/02, (2008) riaa xxvii, pgs 147–251 (hereinafter ‘Barbados/Trinidad and Tobago award’).

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over the rights of another State cannot be maintained in either substantive or procedural terms. Likewise, it found no support in the award of the Southern Bluefin Tuna case, including the Separate Opinion by Sir Kenneth Keith,19 as argued by Mauritius. 3

The Fishery Limitation under the Convention

It has been rightly observed that Part xv, Section 3, of the Convention, which provides for limitations and exceptions to the applicability of compulsory procedures, is fraught with ambiguity.20 In contemplating the disruptive effect of the politically inspired limitations to the compulsory procedures it can be said that ‘the treaty is not a neat legal document, capable of withstanding, in all respects, the onslaught of detached legal criticism’.21 In this respect, the limitation that applies to fishery disputes may be considered unfortunately as a provision that exemplifies the drafting technique of a deliberately created uncertainty. A careful reading of the relevant provision exonerates indeed those sternly criticising the dispute settlement provisions under the Convention in this respect.22 The operating limitation is contained in art. 297(3)(a) losc, which consists of three clauses – separated below for the convenience of the reader with vertical lines – and reads as follows: | Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with Section 2, | except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, | including its discretionary powers for 19

20 21 22

Southern Bluefin Tuna Case between Australia and Japan and between New Zealand and Japan, Award on jurisdiction and admissibility, Decision of 4 August 2000, Arbitration under Annex vii of the United Nations Convention on the Law of the Sea / International Centre for Settlement of Investment Disputes acting as ad hoc registrar, (2006) riaa xxiii, pgs 1–57 (hereinafter ‘Southern Bluefin Tuna case’). A.L.C de Mestral, ‘Compulsory Dispute Settlement in the Third United Nations Convention on the Law of the Sea: A Canadian Perspective’, in T. Buergenthal, eds., Contemporary Issues in International Law, Essays in Honor of Louis B. Sohn (Kehl: N.P. Engel, 1984), 182. A.O. Adede, ‘Prolegomena to the Disputes Settlement Part of the Law of the Sea Convention’, NY University Journal of International Law & Politics, 10 (1977–1978): 386. See among others, M.P. Gaertner, ‘The Dispute Settlement Provisions of the Convention on the Law of the Sea: Critique and Alternatives to the International Tribunal for the Law of the Sea’, San Diego Law Review, 19 (1982): 592 et seq.

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determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations |. The categorical statement in the opening clause enunciates as a matter of principle, that any fishery dispute regarding the interpretation or application of the provisions of the Convention is subject to the compulsory settlement procedures of Part xv, Section 2.23 This is also supported by the legislative history of the provision revealing that fishery disputes are in principle susceptible to compulsory procedures. More specifically, the dispute settlement procedures were the subject of unofficial negotiations in the context of the informal working group on the settlement of disputes until 1975, at what time the issue opened for discussion in the plenary. During the 1974 Caracas session the group produced a working paper containing a draft on dispute settlement, which was later officially circulated as a co-sponsored national proposal.24 Thereunder, a draft article being formulated in three alternative versions, made provision for compulsory procedures leading to binding decisions with respect to disputes presenting elements of a gross, or persistent, violation of the Convention or an alleged abuse of the normal exercise of regulatory or enforcement jurisdiction of the coastal State. This principle was upheld also in the refined document that was developed during the 1975 Geneva session.25 On this premise, the President of the Conference prepared an informal text dealing exclusively with the settlement of disputes26 to supplement the Single Negotiating Texts prepared by the chairmen of the three committees. In relation to the applicable limitations, the President’s text, however, suggested a negative wording in effectively overturning the principle of compulsory settlement regarding fishery disputes except from certain occasions. In particular, it provided that: ‘Nothing contained in the present Convention shall require any Contracting Party to submit to the dispute settlement procedures … any dispute arising out of the exercise by a coastal State of its exclusive jurisdiction under the present Convention, except when…’.27 During the 1976 session the President was called to review its text on dispute settlement in order to keep up with the Conference’s revision of the ­Single 23

See, G. Singh, United Nations Convention on the Law of the Sea: Dispute Settlement Mechanisms (Delhi: Academic Publications, 1985), 137. 24 A/Conf.62/L.7. 25 A/Conf.62/BackgroundPaper1. 26 A/Conf.62/WP.9/Add.1. 27 A/Conf.62/WP.8/Parts i–iii.

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Negotiating Text (rsnt).28 In this respect the plenary debates of the 1976 New York session regarding the dispute settlement system in the rsnt revolved predominantly around ‘the most knotty problem’ in that context, which was ‘the scope of permissible limits of exceptions … and the type of disputes in which the parties might be free to exclude a system of binding settlement’ in viewing that ‘if exceptions were … too broadly defined, the value of the system would be nullified’.29 In his new document, the limitations continued to reflect the substance of the previous formulation but notably the wording of the draft article had departed from the negative formulation suppressing the principle of compulsory settlement. The conflict between the views, on the one hand, on the forthcoming economic zone having a sui generis nature distinct from the high seas, with those, on the other hand, considering the zone part of the high seas being subject to certain coastal State rights and jurisdiction, set the tone for an extensive discussion about the quality and quantity of the ­respective legal rights therein. Against this background, the provision on limitations regressed to an explicitly negative formulation in order to avow the exclusive fishing rights of coastal States within the zone. In doing so, the Informal Composite Negotiating Text (icnt) in its corresponding draft article read that: ‘No dispute relating to the interpretation or application of the provisions of the present Convention with respect to the living resources of the sea shall be brought before such court or tribunal unless…’30 Nevertheless, regardless of the above formulation as an exception to exclusion, the intention of the provision was to retain the compulsory applicability of the binding procedures.31 The rigid utterance to limitations, among other issues, precipitated the resumption of special negotiations in the form of separate working groups. The mandate of Negotiating Group 5, which examined the icnt with respect to compulsory settlement, was carefully limited to those disputes concerning sovereign rights of coastal States in the eez.32 In parallel to the 1978 session, the group managed to agree on a compromise formula, which was included in 28 A/Conf.62/WP.8/Rev.1. 29 J.N. Saxena, ‘Limits of Compulsory Jurisdiction in Respect of the Law of the Sea Disputes’, in R.P. Anand, ed., Law of the Sea: Caracas and Beyond (The Hague: Martinus Nijhoff Publishers, 1980): 335. 30 A/Conf.62/WP.10. 31 See, A.O. Adede, ‘Law of the Sea – The Integration of the System of Settlement of Disputes under the Draft Convention as a Whole’, American Journal of International Law 72 (1978):94–95; B.H. Oxman, ‘The Third United Nation’s Conference on the Law of the Sea: The 1977 New York Session’, 72 (1978):67, 78ff., and E.D. Brown, ‘Dispute Settlement and the Law of the Sea: The UN Convention Regime’, Marine Policy 21 (1997): 22. 32 x unclos iii Off. Records 6.

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the Group’s Chairman Report.33 The Plenary revised the icnt along the proposed formula by circumscribing inter alia the purported broadness of limitations with the introduction of a comprehensive positive statement asserting ab initio the applicability of compulsory procedures to fishery disputes. More specifically, it was provided that ‘Unless otherwise agreed or decided by the parties concerned, disputes relating to the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with Section 2 of Part xv of this Convention, except…’.34 Through an amendment of that nature, unclos iii could be seen at that stage as ­moving from the position of compulsory settlement to that of compulsory exclusions.35 The provision on limitations received its final significant redrafting in the context of the Informal Draft Convention on the Law of the Sea, where it was further restricted by the refinement of the introductory statement on the applicability of compulsory procedures entailing binding decisions, as to clarify that ‘disputes relating to the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with Section 2, except…’.36 Considering the above expression, Oxman has observed that it ‘refers to compulsory jurisdiction over all fisheries disputes, and then excludes sovereign rights only with respect to the living resources in the economic zone’.37 Thus, although the opening clause can be constructed as stipulating that any fishery dispute (other than those strictly confined within the eez) can as a matter of principle be submitted to its compulsory procedures – what in the proceedings during the Chagos arbitration was invariably referred to between the Parties and accepted as an affirmative grant of jurisdiction – immediately after, nonetheless, the second clause conveys the impression of a quasi ­counter-principle that coastal States shall not be obliged to accept the submission to such procedures of any dispute relating to their sovereign rights with respect to the living resources in the eez, or disputes related to the exercise of such rights. Nonetheless, the impression that there is further scope to exclude disputes from judicial procedures other than those mentioned by name is amplified by the grammatical inflection of the verb ‘include’ in gerund form – i.e., 33 Q.v., A/CONF.62/RCNG/1, and x unclos iii Off. Records 117 et seq. 34 A/Conf.62/WP.10/Rev.1. 35 See, Adede, 378–379. Considering the major unresolved issues underlying the discussions on dispute settlement, see A. Yankov, ‘The Law of the Sea Conference at the Crossroads’, Virginia Journal of International Law 18 (1977):31–41. 36 A/Conf.62/WP.10/Rev.3. 37 Bernard H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)’, American Journal of International Law 76 (1982):19.

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as a ­non-finite verb – serving practically as a clausal conjunction with the final clause that emphasises three limitations.38 These, automatic exceptions, concern the discretionary powers of coastal States to determine the allowable catch in the eez, their harvesting capacity, the allocation of surpluses to other States, and the terms and conditions established in its conservation and management laws and regulations. Disputes falling into the aforementioned categories are to be submitted to non-binding conciliation under Annex v, Section 2, of the Convention, when there is any allegation against the coastal State about a manifested failure to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the eez is not seriously endangered; an arbitrary refusal to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in fishing; or an arbitrary refusal to allocate to any State, under the pertinent losc provisions, the whole or part of the surplus that it has declared to exist.39 It is interesting to note, however, that the sweeping generality of the second clause in an ordinary and plain reading renders superfluous the specific stipulations that are mentioned by name in the third clause, since by definition, the eez is a zone wherein ‘the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, …’40 Such superfluity can be effectively disposed only through a narrow interpretation of the purported counter-principle, as for example per the interpretation given to the scope of art. 56 losc in the Affaire Concernant le Filetage à l’Intérieur du Golfe du Saint-Laurent entre le Canada et la France.41 It will be recalled that in the context of the Chagos proceedings, UK maintained an argument putting forward an overly general approach to the fishery limitation in holding that art. 297(3)(a) losc ‘is unambiguous and there is no basis for looking beyond its clear terms’.42 It considered, furthermore, that in 38

The inflections of ‘y compris’ and ‘incluidas’ to be found in the French and Spanish text respectively carry out the same grammatical function as in the English text. The former, yet, deriving from the verb ‘comprendre’ can be susceptible to more restrictive interpretations as to be read as having the cumulative meaning of ‘comprising’. 39 losc, art. 297(3)(b). 40 Ibid., art. 56(1)(a). 41 (‘La Bretagne Award’) Sentence du 17 Juillet 1986, (2006) xix riaa pgs 225–296, at pgs 255–256§50; see further W.T. Burke, ‘Coastal State Fishery Regulation under International Law: A Comment on the La Bretagne Award of July 17, 1986 (The Arbitration between Canada and France)’, San Diego Law Review 25 (1988): 495. 42 Award, pg. 98 §246, and in the Final Transcript, pg. 806:15-6.

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practice the provision effectively grants jurisdiction over fishery disputes in general and then excludes jurisdiction over fisheries disputes in the eez,43 without any jurisdictional distinction between the exercise of sovereign rights on account of affecting or not other States,44 and with such rights to include a decision on granting or denying fishing licences in the eez for the purpose of conservation and management.45 As a result, it contended that ‘high seas fisheries disputes are within compulsory jurisdiction, eez living resources, quite deliberately, are not’.46 In support, it viewed that this reading is entirely consistent also with the unclos iii negotiating record,47 and in particular with the views expressed then by the delegation of Mauritius.48 On this specific aspect, a question posed by judge Wolfrum to the UK counsel sought to clarify as to whether the latter part of the fishery limitation, referred to above as the third clause, was to be read according to UK’s views to refer to everything done in the eez – concerning the conservation and management of living resources – or it did only apply to activities of the coastal State under arts 61 and 62 losc. In reply, it was further viewed that the general approach as put forward correlates in this context arts 56(1)(a) and 297(3)(a) LOSC, which echoes the anxiety of the coastal States during unclos iii to get hold of extensive powers to manage, conserve and exploit fish stocks and living resources in the eez, and embodies the outcome to their satisfaction to keep coastal State fisheries ­disputes out of court as far as possible.49 Finally, on this point, a valuable insight into the Tribunal’s making of the Award as far as the fourth submission is concerned can be deduced from the  joint Dissenting and Concurring Opinion issued by two of its members. While concurring that jurisdiction over Mauritius’ claims was dependent upon the characterization of the Parties’ dispute, which consequently had a bearing on the interpretation and application of the automatic exclusions provided in art. 297(3) LOSC, it considered that since the decision on the case was one considering a mpa, rather than a decision on fishing, the provision did not apply.50 The Opinion further viewed that if that limitation is considered to be applicable then it would need to be narrowly construed. More specifically, if the first part of the clause, whereby jurisdiction is confirmed, is to retain some 43 44 45 46 47 48 49 50

Counter-Memorial submitted by the United Kingdom (15 July 2013), pgs 163-4 ¶¶6.32-5. Award, pgs 98–99 §247, and in the Final Transcript, pg. 1278:14-16. Final Transcript, pg. 1278:9-12. Ibid., pg. 804:24-5. Ibid., pgs 810:23 to 811:1, and 815:22-4. Ibid., pgs 806:21-3, and 807:1-14. Final Transcript, pgs 813–816. Dissenting and Concurring Opinion of Judges Kateka and Wolfrum, pgs 13 §50 and 15 §57.

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meaning, not all disputes on fisheries can be interpreted as ‘any dispute relating to its sovereign rights with respect to living resources’. Therefore, the exclusions envisaged in the remaining of the provision must be narrower in scope.51 4 The Chagos Award in a State of Limbo Having regard to the foregoing discussion, the Chagos award found a leeway to steer away the interpretation on the fishery limitation under art. 297(3)(a) losc from the principle of compulsory dispute settlement regarding straddling and highly migratory stocks by broadening the scope of limitations in the second and third clause. Indeed, as Boyle (who acted as a counsel for the UK in the Chagos arbitration), observed in his academic writings in the late 1990s, the negotiations in unclos iii, and the text of the Convention itself, have left unanswered the difficult question whether disputes of this kind are within or outside the exclusion from compulsory binding settlement.52 More emphatically, de Mestral had presaged, in early 1980s, that in fact the limitations provided for in art. 297 losc across the three paragraphs can be interpreted either broadly or narrowly (restrictively), as there is nothing in the Convention to imply a broad exclusion of the application of compulsory settlement procedures to disputes arising in the eez per se.53 Assuming a strict adherence of international courts and tribunals to the doctrine of jurisprudence constante, the Chagos award may have bequeathed to case-law thus a rather doubtful authority in terms of its subsequent application concerning the fish stocks in question under the ambit of the Agreement’s provisions. Consequently, the question is whether any ground exists to distinguish the Award in the context of the Agreement. To this end, three points may open the prospect for such discussion. First, by looking in more detail Mauritius’ strategy to circumvent the application of art. 297(3) losc ‘taken as a whole’,54 it will be recalled that it had primarily argued for a correlation between arts 56 and 297 losc with a view to drawing a distinction between the effect of the provisions on the coastal sovereign rights and the rights of third States in the eez. In doing so, it advanced that since in relation to the latter it would involve only the jurisdiction of the 51 52 53 54

Ibid., pg. 15§58. A.E. Boyle, ‘Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks’, The International Journal of Marine and Coastal Law 25 (1999): 11. de Mestral, 183. Award, pg. 99 §249, and in the Final Transcript, pg. 477:16-8.

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coastal State, disputes of that kind would not be caught by the fisheries limitation.55 The backup argument was that even if the dispute were to be characterized as one related to fishing, it would not fall within the exceptions provided in art. 297(3)(a) losc. The substantiation for this, however, was rather thin and did not withstand the pressure mounted by UK’s objections. As put in its written submissions, and emphasized in the oral pleadings, Mauritius contended ‘UK’s failure to respect Mauritian fishing rights in the EEZ,56 in averring more specifically that: the dispute is not based on the purported sovereign rights of the UK as a coastal State in relation to the living resources in the eez. That is not how the dispute should be characterized…, the dispute concerns the rights of Mauritius. This includes its right to fish in the eez of the Chagos Archipelago; its right to be consulted about matters that can affect its interests; its right to have fulfilled the [UK’s undertaking] … it is these rights – the rights of Mauritius – that are at issue.57 Therefore, the essential claim of Mauritius did not arise under arts 63(2) or 64(1) losc, neither from art. 7 unfsa, as it will be discussed shortly below. These articles do not address sovereign, or otherwise afford a legal basis for, access to fisheries within the eez of a coastal State; and in a sense, this was a claim linked to sovereignty under the guise of conservation and management for fisheries within the mpa. Even when Mauritius sought to deploy the secondary line of arguments in encompassing procedural obligations of consultation and cooperation owned to it under these provisions, as a fishing State for stocks in an area adjacent to the Chagos Archipelago,58 there was no material dispute crystallised at the time of initiating the proceedings with a bearing on the conservation and management measures under art. 7 unfsa. In ­citing selectively the latter’s paragraph 3 considering the obligation incumbent upon States to make ‘every effort to agree on compatible conservation and management measures within a reasonable period of time’,59 it notably failed to acknowledge that this obligation is provided in reference to a dispute over compatible measures as contemplated in paragraph 2. The disagreement underpinning Mauritius’ fourth submission with regard to straddling and highly 55 56 57 58 59

Final Transcript, pgs 1119–1122. Ibid., pg. 322:3. Ibid., pg. 477:19-25. Ibid., pgs 321: 16-20, 335:17-20, and 336. Ibid., pg. 335:7-9.

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migratory stocks did not raise, at least as it was presented in the Parties’ written submissions and oral pleadings, issues pertaining to a substantive dispute crystallised at the time when the settlement procedures were invoked. ­Mauritius did not raise or consistently argue issues arising from the proclaimed mpa pertaining to a negative impact on fishing beyond the mpa. As counter argued by the UK, in the face of the mpa establishing a ban on commercial fishing, the resultant dispute would have arisen in relation to Mauritius’ ongoing fishing beyond the eez on account of possibly undermining the effectiveness of these measures, and not vice-versa.60 Secondly, the Tribunal in its reasoning invoked the authority of the Barbados/Trinidad and Tobago award, which was also debated between the Parties regarding its bearing on the procedural obligations under consideration. The fishery claim in that case had been brought up by Barbados in the form of infra petita remedy during the oral pleadings, whereon the tribunal found itself lacking the jurisdiction to render a substantive decision on fisheries access regime in the eez, but nevertheless pronounced on the duty upon the Parties ‘to agree upon the measures necessary to co-ordinate and ensure the conservation and development’ of the stock in question.61 The Chagos award accepted that ‘articles 63 and 64 (as well as the 1995 Fish Stocks Agreement) are, on their face, measures in respect of fisheries and in their application in the exclusive economic zone are subject to the exclusion in article 297(3)(a)’,62 but is not clear under what terms it invoked the authority above. The authority has been partially misapplied in the context of the Chagos Award for the reason that it was decided concerning the flying fish stocks in reference to art. 63(1) losc,63 addressing the so-called ‘shared’ stocks, and as such does not, therefore, relate to either straddling or highly migratory stocks, which constitute the focus of the Agreement. It should be noted that in the course of the pleadings by the Parties, including the references made by the Tribunal in the Award, the employment of the term straddling stocks in the context of art. 63 losc subsumed two different – in terms of jurisdictional provisions – types of fish stocks. While some of the claims were phrased by Mauritius in the terms of art. 63(1) losc, the blanket application by the Tribunal insofar as arts 63(2) and 64(1) losc, as well as art. 7 unfsa, are concerned is unfounded and especially with regards to highly migratory stocks in view of the pactum de contrahendo. Another relevant remark considering the application of the authority to bear 60 61 62 63

Ibid., pgs 894–895. Barbados/Trinidad and Tobago award, pg. 226 §286. Award, pg. 117 §300. Barbados/Trinidad and Tobago award, pg. 226 §283.

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in mind in the light of paragraphs 1 and 2 of art. 63 losc having in common a pactum de negotiando obligation, is that the authority was given in the context of the Convention, with the Agreement not being in force as between the Parties.64 Finally, and in combing the observations above, the interpretation of the fishery limitation as presented in the Tribunal’s reasoning was confined within the Convention and not the Agreement. For instance, a fundamental provision of the latter, which it would have been expected to feature in the Parties’ respective arguments and reasonably in the Tribunal’s reasoning is this of art. 3(1) unfsa considering its application within areas of national jurisdiction (discussed in more detail below). In fact, Mauritius did so yet in an inconclusive manner that could be best described as merely ‘flagging up’ the provision,65 but utterly abandoning it thereafter; plausibly this was in keeping with a tactical course that required to see how it would play out on the arguments within its first and second submissions, taking into account also any implications from the declaration filed upon its accession to the Convention and the Agreement.66 From a purely procedural point of view, the Tribunal’s distancing from the Agreement can be argued indeed as being the proper way to proceed in the case. The dispute was brought in its entirety within the jurisdiction of the Tribunal pursuant solely to paragraph 1, and not paragraph 2 of art. 288 losc. Mauritius initiated arbitral proceedings pursuant to arts 286 and 287(5) losc,67 and only at the stage of filing its Memorial included a rather brief reference in a footnote whereby alluded to jurisdiction also under art. 30(1) unfsa in respect of art. 7,68 followed by a more assertive statement mentioning that ‘art. 30 of the Agreement provides that the dispute settlement provisions of the 1982 Convention apply to disputes regarding the interpretation or application of the

64 65 66

67 68

Barbados acceded to the Agreement on 22 September 2000, while Trinidad and Tobago only 5 months after the award, on 13 September 2006. Memorial of the Republic of Mauritius (1 August 2012), volume i pg. 144 ¶7.66. Upon accession to both treaties on 25 March 1997, Mauritius filed a declaration that ‘rejects the inclusion of any reference to the so-called British Indian Ocean Territory by the United Kingdom of Great Britain and Northern Ireland as territories on whose behalf it could sign the said Agreement, and reaffirms its sovereignty over these islands, namely the Chagos Archipelago which form an integral part of the national territory of Mauritius and over their surrounding maritime spaces’.; [ST/LEG/SER.E/22] Multilateral Treaties Deposited with the Secretary-General, xxi 7 ‘Law of the Sea’, p. 309. Republic of Mauritius, Notification under Article 287 and Annex vii, Article 1 of unclos (20 December 2010). Memorial of the Republic of Mauritius, pg. 87 ¶5.6, footnote 378.

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Agreement’.69 This was not ignored by the UK, which in turn noted in filing its preliminary objections, also by means of a footnote for plausible understandably reasons, that ‘the Tribunal is not a court or tribunal to which a dispute has been submitted under Part viii of the [A]greement’;70 a position reiterated in the same form also in the Counter-Memorial.71 While the concept of inducing a Party’s behaviour as to imply consent under the application of the forum prorogatum principle could be appealing, no less by reading such jurisdiction between the footnotes, the question of having the dispute referred under the terms of the Agreement was not touched further upon by the Parties either in the Reply and Rejoinder submissions, or the oral pleadings. As a matter of fact, Mauritius not only abstained from fleshing out any such proposition but owning sensibly to how the dynamic of the arguments were shifted in the course of the pleadings in the context of the discussion over the Convention’s jurisdiction for sovereignty claims, it stated clearly that the ‘claims were not submitted in accordance with the dispute settlement provisions of any other agreement’ but ‘in accordance with the dispute settlement provisions of Part xv of the Convention itself, invoking the Tribunal’s jurisdiction expressly under art. 288(1), because they arise directly under various substantive articles of the Convention, including art. 2(3), whose interpretation or application is clearly called for’.72 Moreover, the Tribunal found unanimously its subject-matter jurisdiction pursuant to art. 288(1) losc in relation to the fourth submission,73 and this puts beyond any doubt that jurisdiction-wise the Chagos award interpreted the fishery limitation contained in art. 297(3)(a) exclusively within the Convention. 5

The Relationship between the Agreement and the Convention: Consistency as Interpretative Requisite

The question over the legal relationship between the Convention and the Agreement, especially as to the interpretation and application of the respective rights and obligations, far exceeds a simple reading of the latter’s formal 69 70 71 72 73

Ibid., pg. 9 ¶5.35(viii). Preliminary Objections to Jurisdiction submitted by the United Kingdom (31 October 2012), pg. 39 ¶4.2, footnote 113. Counter-Memorial submitted by the United Kingdom (15 July 2013), pg. 132 ¶5.16, footnote 382. Final Transcript, pg. 484:6-13, as noted also in full quote by the Tribunal in the Award at pg. 107 §269. Award, pgs 86 §204, and 215 §547(A3) as stated in the dispositif.

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title. The precise construction of the conceptual term ‘implementation’ bears particularly significant implications for the interpretation of both instruments; depending especially on whether the interpreter may take either a substantive or procedural approach through a constitutional discourse of international law.74 The legal relationship between the two treaties is being addressed in art. 4 unfsa, where is stipulated that ‘nothing [therein] shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention’. The requirement of consistency, therefore, constitutes essentially an interpretative rule for the understanding of its provisions. As it has been emphatically stated by the Chairman of the Fish Stocks Conference upon the conclusion of the Agreement, ‘[i]ts provisions are firmly based on the principles enshrined in the Convention. The Agreement and the Convention are intrinsically linked and are inseparable’.75 Nonetheless, Treves had commented ex cathedra – in the Southern Bluefin Tuna case, of which some pronouncements featured in the Chagos ­proceedings – that although there are remarkable links between the two treaties, the Agreement is independent from the Convention.76 In this respect it has been very appositely drawn attention to the fact that even though the Agreement intends to implement the specific provisions of the Convention, hence consistency between the two instruments shall be maintained, the latter due to its ambitious scope was not intended to contain detailed provisions on the specific topic of fish stocks and it provides only for ‘general obligations relating to the conservation and management of the living resources of coastal States’ ­exclusive zones and of the high seas’.77 Taking into account, moreover, ‘the intention to serve the general interest’, in the light of the Convention’s rudimentary provisions, there can be no doubt that the intention of the Agreement’s drafters was to fill the lacunae left by the Convention in respect of the obligation to cooperate in the conservation and management of the straddling 74 E.g., see supra note 4 and accompanying text. 75 A/Conf.164/35. 76 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan) Cases № 3 & 4, Provisional Measures, Order of 27 August 1999, itlos Reports 1999, p. 280, Separate Opinion of Judge Tulio Treves, at ¶10. For a further explanation of that statement see T. Treves, ‘The Settlement of Disputes According to the Straddling Stocks Agreement of 1995’ in A.E. Boyle and D. Freestone, eds., International Law and Sustainable Development – Past Achievements and Future Challenges (Oxford: Oxford University Press, 2001), 253–269. 77 G. Vigneron, ‘Compliance and International Environmental Agreements: A Case Study of the 1995 United Nations Straddling Fish Stocks Agreement’, Georgetown Environmental Law Review 10 (1998): 583.

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and highly migratory stocks.78 Furthermore, Scovazzi, observes that the socalled implementation Agreement instead of merely implementing the Convention introduces substantial innovations thereto and thus the prudent word implementation is used with a broader sense being very close to the meaning of ‘change to improve’.79 In addition, the former itlos judge Anderson also makes a similar remark by considering art. 31(3)(a) of the Vienna Convention on the Law of Treaties highly relevant with regard to the element of subsequent treaty practice.80 Notwithstanding that the two instruments are intimately bound together, he argues that ‘in construing the relevant provisions of the Convention … it would probably now be considered appropriate … to take into account the terms of the Agreement, if only because the interpretation and application of a treaty are inextricably bound up with its implementation’.81 In this respect, there is arguably scope left by the Convention wherein the provisions of the Agreement can be interpretatively expanded. The question of the relationship between the two instruments, and the fulfilment of the resulting requirement for consistent interpretation, accordingly bears particular significance especially with regard to art. 7 unfsa in two respects. First, in terms of substantive law, attention shall be paid to the fact that in its opening paragraph it recites arts 63(2) and 64(1) losc. Secondly, in terms of procedural law, the Agreement applies under Part viii mutatis mutandis – a legal expression bearing its very own interpretive difficulties and distinctive value – the entire Sections 1 and 2 of Part xv losc, and art. 32 unfsa introduces art. 297(3)(a) losc by reference, which unless be interpreted within the context, object and purpose of both the Convention and the Agreement, it is bound to give rise to an internal textual non sequitur in view of inter alia art. 7(4) unfsa. 6

The Recitation of arts 63(2) and 64(1) losc in art. 7 unfsa

One of the main aims sought to be achieved in the Fish Stocks Conference was the clarification of the jurisdictional régime over straddling and highly migratory stocks. The Convention left that crucial question essentially unresolved, 78 79 80 81

R. Rayfuse, ‘The United Nations Agreement on Straddling and Highly Migratory Fish Stocks as an Objective Regime: A Case of Wishful Thinking?’, Australian Year Book of International Law 20 (1999): 265. T. Scovazzi, ‘The Evolution of International Law of the Sea: New Issues, New Challenges’, Recueil des Cours de l’Académie de Droit International de la Haye 286 (2001): 143. Signed at Vienna on 23 May 1969 and entered into force on 27 January 1980 [1155UNTS331]. D. Anderson, Modern Law of the Sea, Selected Essays (Leiden: Martinus Nijhoff Publishers, 2008), 368.

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which resulted into great uncertainty as to States’ legal rights and obligations over such stocks while these were to be found beyond the eez.82 The Agreement in addressing that question adopted a rule whereby envisages that conservation and management measures taken in the respective jurisdictional areas shall be compatible as to fulfil ‘[t]he objective of ensuring long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention’.83 However, the rule of compatible conservation and management measures is regarded as representing one of the most controversial issues of the Agreement,84 and therefore is expected to raise complex issues of interpretation.85 The controversy lies particularly in the legal uncertainty over the measures to be regarded as the basis of the conservation and management scheme. In other words, which measures shall be compatible with what measures?86 In this respect, the phrasing of the chapeau in art. 7(2) unfsa, vaguely provides that: ‘Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the ­straddling fish stocks and highly migratory fish stocks in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks’. However, in determining compatible conservation and management measures the Agreement enlists six factors that need to be considered. In accordance to those criteria, States shall: (i) take into account the conservation and management measures adopted and applied in accordance with art. 61 losc in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for 82

83 84 85 86

See, among others, F. Orrego-Vicuña, ‘Coastal States’ Competences over High Seas Fisheries and the Changing Role of International Law’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 55 (1995): 521, and W.T. Burke, ‘The Importance of the 1982 UN Convention on the Law of the Sea and its Future Development’, Ocean Development and International Law 27 (1996): 2. unfsa, art. 2. D. Nelson, ‘The Development of the Legal Regime of High Seas Fisheries’, in Boyle and Freestone, International Law and Sustainable Development – Past Achievements and Future Challenges (Oxford: Oxford University Press, 2001), 130. A.G. Oude-Elferink, ‘The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks’, Max Planck Yearbook of United Nations Law (2001): 553. D.A. Balton, ‘Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks’, Ocean Development and International Law 27 (1996): 137.

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the high seas do not undermine the effectiveness of such measures; (ii) take into account previously agreed measures established and applied for the high seas in accordance with the Convention in respect of the same stocks by relevant coastal States and States fishing on the high seas; (iii) take into account previously agreed measures established and applied in accordance with the Convention in respect of the same stocks by a subregional or regional fisheries management organization or arrangement; (iv) take into account the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction; (v) take into account the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned; and finally (vi) ensure that such measures do not result in harmful impact on the living marine resources as a whole.87 Still, the crucial question being involved in the interpretation of the rule of compatibility relates to the specific legal meaning that the word ‘compatibility’ conveys regarding the imposition of a bidirectional obligation to coastal and high seas fishing States. While is not to be questioned that the rule imposes in principle a common and shared obligation to the respective categories of States, the symmetry of such obligation is being seriously debated. The crux of this question necessitates as a corollary also the clarification of the legal effect that the jurisdictional differentiation between the legal régime of straddling stocks and highly migratory species entails for the interpretation and application of the compatibility rule. It has been rightly proposed that in interpreting the rule of compatibility as provided in paragraph 2, due regard shall be paid to paragraph 1 of art. 7. More specifically, as mentioned above, paragraph 1 reintroduces the two separate conservation and management régimes for straddling and highly migratory stocks, respectively. In particular, lit. (a) stipulates that, ‘with respect to straddling fish stocks … coastal States and the States whose nationals fish for such stocks in the adjacent high seas area, shall seek … to agree upon the measures necessary for the conservation of these stocks in the adjacent high seas area’. Respectively, lit. (b) provides that ‘with respect to highly migratory fish stocks … States and other States whose nationals fish for such stocks in the region shall cooperate … with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region…’. Thus, paragraph 1 of the compatibility article in this respect tentatively reaffirms the distinction between the two types of stocks contained in the Convention, and renders paragraph 1 an important part of the context for the interpretation of paragraph 2. Essentially, this means that 87

unfsa, art. 7(2)(a-f).

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in determining compatible conservation and management measures any interpretation of the rule in order to fulfil the requirement of consistency should be extremely careful as to reiterate the respective jurisdictional balance envisaged in those articles under the Convention, and to avoid in the context of the Agreement tilting the balance in favour of either of the interests involved.88 For instance, in the Chagos proceedings, UK briefly mentioned in passing that the obligation for coastal States to take account of the conservation measures applied to the adjacent high seas areas ‘is a much weaker’ one.89 The re-introduction of this jurisdictional division under paragraph 1 poses subsequently a challenge to the concept of compatibility, given that the object and purpose of the rule is to address the difficulties, which originally arose from those provisions in the context of the Convention. Under the compatibility rule, it seems consequently that the Agreement introduces an ecosystem management area of a single biological unity with two jurisdictional ­systems.90 However, the text of the Agreement itself remains rather equivocal on this matter when the geographical scope of the compatibility rule is to be taken into account, with art. 3(1) ambiguously stipulating that: Unless otherwise provided, this Agreement applies to the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction, except that articles 6 and 7 apply also to the conservation and management of such stocks within areas under national jurisdiction, subject to the different legal ­regimes that apply within areas under national jurisdiction and in areas beyond national jurisdiction as provided for in the Convention. The uncertainty created from the circularity of the above stipulation is obvious. While is provided that the rule of compatibility under the Agreement does ‘apply also to the conservation and management of such stocks within areas under national jurisdiction’, it simultaneously subjects this applicability ‘to the different legal regimes that apply within areas under national jurisdiction and in areas beyond national jurisdiction’ under the Convention. The last clause of course bears great significance with respect to the application of the compatibility rule to straddling stocks regimes. The oxymoron conclusion that seems to arise from a first reading is that the rule of compatibility applies also to stocks within areas under national jurisdiction subject to 88 89 90

Oude-Elferink, 555–556. Final Transcript, pg. 894:8-9. F. Orrego-Vicuña, ‘The International Law of High Seas Fisheries: From Freedom of Fishing to Sustainable Use’, in O.S Stokke, ed., Governing High Seas Fisheries, The Interplay of Global and Regional Regimes (Oxford: Oxford University Press, 2001), 38–40.

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art. 63(2) losc – as also reproduced in art. 7(1)(a) – which provides that States shall seek to agree upon the measures necessary for the conservation of these stocks in the adjacent area. The case of straddling stocks becomes even more controversial in taking into account that, art. 5(a) unfsa, firmly stipulates that ‘coastal States and States fishing on the high seas shall, in giving e­ ffect to their duty to cooperate … adopt measures to ensure long-term sustainability of straddling fish stocks and highly migratory fish stocks and promote the objective of their optimum utilization’. On the one hand, the Agreement by setting out this common objective not only overcomes the controversial obligation of pactum de negotiando but also unifies in terms of management a­ pproach the two conservation regimes since it sets as a general principle that straddling stocks shall be also conserved and managed with the aim of optimum utilization, as highly migratory species and the fishery resources within the eez.91 On the other hand, however, the general principle of art. 5(a) unfsa seems to raise a tension with art. 7(1)(a) unfsa, which does not provide for this aim. Unless the latter receive a restrictive interpretation as to conform to the general principle there will be a legal non sequitur between the two provisions.92 7

The Interpretation of the Fishery Limitation in the Agreement

As shown in the Chagos award, compulsory procedures under the Convention may be hindered through the operation of the fishery limitation as it is furnished in art. 297(3)(a) losc regarding disputes relating to coastal States’ ­sovereign rights with respect to the living resources in the eez. As briefly mentioned above, the limitation is introduced en bloc into Part iii unfsa through art. 32 thereof, which laconically stipulates that ‘Article 297, ­paragraph 3, of the Convention applies also to this Agreement’. The intrinsic uncertainty d­ ominating 91 92

losc article. 62(1), stipulates that ‘the coastal State shall promote the objective of optimum utilization of the living resources in the [eez] without prejudice to article 61 [i.e., to the aim of conservation]’. For this purposive interpretation in reading the general principle in article 5 lit. (a) as not attaching particular importance to the conceptual difference between the two jurisdictional regimes under the Convention, but to the contrary the Agreement’s deliberate intention lies in unifying them in terms of management, see. A. Tahindro, ‘Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks’, Ocean Development and International Law 28 (1997): 9–10.

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the original text of the limitation under the Convention has thus given rise to two conflicting approaches of interpretation thereon also in the context of art. 32 unfsa. Namely, the first approach is one that broadly interprets the procedural aspect of the fishery limitation as to restrict the principle of compulsory settlement of disputes for these stocks. This approach is associated with the interpretations of compatibility rule in art. 7 unfsa that favour the extension of coastal States rights seawards in areas beyond the eez. On the other hand, there is the approach that interprets restrictively the fishery limitation as to allow compulsory procedures to apply on straddling and highly migratory stocks on the premise that such stocks are not susceptible wholly to the exclusive jurisdiction of coastal States. 7.1 The Broad Interpretation of the Fishery Limitation A number of academic commentaries have admittedly advanced a cautious approach in favour of interpreting broadly the fishery limitation. For instance, it has been acknowledged that throughout the Fish Stocks Conference there was a ‘general recognition of the important biological unity’ attached to these stocks. This recognition was manifested in the text of the Agreement through the general principles governing the conservation and management of stocks and more specifically in the adoption of the compatibility rule. However, a broad interpretation on art. 297(3) losc, would not lead to the ‘uniting of the procedures for the settlement of disputes for the whole geographical distribution of these stocks’.93 Hence, the compulsory settlement provisions may be seen as operating essentially only in favour of the coastal State, which may launch a challenge against any high seas fishing State resulting in compulsory binding procedures with respect to measures undermining the respective conservation and management measures that have been established for the same stock in its eez. The same would not apply for high seas States due to the operation of art. 297(3) losc. This asymmetrical obligation is viewed to exist because coastal States enjoy sovereign rights regarding fisheries within their eez.94 The broad scope of such interpretations is derived mainly from academic commentaries analysing the text of the limitation exclusively in the context of the Convention. For instance, a traditional view holds that ‘certain disputes relating to fisheries will be completely excluded from the dispute settlement system due to the broad discretionary power of the coastal States with respect to 93 94

Tahindro, 49. E. Meltzer, The Quest for Sustainable International Fisheries, Regional Efforts to Implement the 1995 United Nations Fish Stocks Agreement (Ottawa: National Research Council of Canada, 2009), 207.

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several aspects of coastal fisheries’ and furthermore ‘the substantive discretion is so broad and plenary that it is no easy to imagine a situation in which third States would have the right to question the exercise of the sovereign rights of the coastal State’.95 These quotes may read familiar to those who can recall the Tribunal’s views in paragraph 297 of the Chagos Award. In sum, the arguments accepting a broad interpretation on the crossreference of the Convention’s fishery limitation in art. 32 unfsa, regard the latter as continuing an explicit desire by States not to subject national decisions ­respecting marine living resource use within their eez to compulsory third-party adjudication.96 Discretional fishery measures by coastal States will remain unaffected by the compulsory dispute settlement procedures of the Agreement, either generally or in specific terms; eg., in determining total allowable catches, etc.97 Overall, the part of academic commentary that reaches a conclusion towards the broad interpretation on the limitation varies from firmly supporting in a same manner the view that disputes over such stocks are definitely excluded from compulsory jurisdiction under the Convention, yet remaining silent as to the effect thereon of the procedures through the Agreement,98 to views that assume more resolutely that the Agreement, like the Convention, does not ­address fishery disputes of this kind without the consent of the coastal State.99 7.2 The Restrictive Interpretation of the Fishery Limitation On the other hand, it has been developed an approach advocating a restrictive interpretation of the art. 32 unfsa, which advances that compatibility disputes are not being caught by the fishery limitation of the Convention. Notwithstanding that the Agreement incorporates the dispute settlement procedures of the latter, their application shall be consonant with the substantive law provided in the former. Arguments affirming the validity of this purposive interpretation point out that ‘in the light of [art. 3], the question that arises in interpreting art. 32 unfsa is whether disputes concerning the interpretation or application of arts 6 and/or 7 unfsa may be referred unilaterally to adjudication under the settlement procedures provided for in the Convention’.100 95

E.g., L.B. Sohn and K. Gustafson, The Law of the Sea in a Nutshell (St. Paul, Minn.: West Publishing Co., 1984), and de Mestral, 184. 96 L.T. McDorman, ‘The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention’, Canadian Yearbook of International Law 35 (1997): 66. 97 Orrego-Vicuña, 36. 98 M.A. Orellana, ‘The Law on Highly Migratory Fish Stocks: itlos Jurisprudence in Context’, Golden Gate University Law Review 34 (2004): 460. 99 A. Zumwalt, A. ‘Straddling Stocks Spawn Fish War on the High Seas’, University of California Davis International Law and Policy 3 (1997): 56. 100 Treves, 258.

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In other words, the interpretation of the limitations of the Convention shall be construed restrictively within the interpretative context of the lex specialis principles under the Agreement; such as the principle of precautionary approach and compatibility rule. It shall be here once again be recalled that in respect to these principles the Agreement geographically applies explicitly to the conservation and management of both straddling and highly migratory fish stocks also ‘within areas under national jurisdiction’.101 In this respect, Kwiatwoska for instance although favouring a broad interpretation of art. 297(3) losc, remained uncertain about the interpretation of the same limitation under art. 32 unfsa. At this point, it may be worth looking in some more detail her views on the Southern Bluefin Tuna case having in mind the references made thereto in the Chagos proceedings. More specifically, reflecting on the fact that itlos’ Order on provisional measures in the Southern Bluefin Tuna case did not consider the applicability of the fishery limitation, she viewed that this presumably applies to the stocks in question, in spite of the high seas fishing States rights being inseparable from the sovereign rights enjoyed by coastal State’s within eez.102 Nevertheless, she implied, in the light of the final remarks made by the tribunal in its award regarding the dispute settlement procedures under the Agreement, that the impact of art. 297(3) losc, may not affect disputes arising under the principles of precautionary approach and compatibility, which are applicable to both the eez and the high seas.103 Churchill, also commenting on the Order, considered that itlos left open the question of whether its measures apply only to the high seas or include the eez in order to avoid becoming involved in the controversy over the application of the fishery limitation upon the compulsory settlement procedures of the Part xv of the Convention.104 101 unfsa, art. 3(1). 102 B. Kwiatkowska, ‘The Australia and New Zealand v. Japan Southern Bluefin Tuna (Jurisdiction and Admissibility) Award of the First Law of the Sea Convention Annex vii Arbitral Tribunal’, International Journal of Marine and Coastal Law 16 (2001): 276. 103 B. Kwiatkowska, ‘International Decisions – Southern Bluefin Tuna’, American Journal of International Law 95 (2001): 167, and by the same author ‘The Australia and New Zealand v. Japan Southern Bluefin Tuna (Jurisdiction and Admissibility) Award of the First Law of the Sea Convention Annex vii Arbitral Tribunal’, International Journal of Marine and Coastal Law 16 (2001): 278, wherein is viewed that ‘it seems that both the itlos and the Arbitral Tribunal have given important guidance and encouragement [to the application of compulsory settlement]’. 104 Q.v., R.R. Churchill, ‘International Tribunal for the Law of the Sea the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan): Order for Provisional Measures of 27 August 1999’, International & Comparative Law Quarterly 49 (2000): 987–988; for a more comprehensive exposition of his views on the applicability of limitations to compulsory jurisdiction in contentious cases, see R. Churchill, ‘Some Reflections on the Operation of the Dispute Settlement System of the UN Convention on the Law of the Sea During

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Academic commentaries that would not preclude a restrictive interpretation of the limitation argue, as for example Oxman in this respect, that ‘it is important to bear in mind that art. 297 LOSC does not by any means exclude all disputes concerning the exercise of coastal State rights in the areas affected … [and that] these exclusions do not apply to matters such as high seas fisheries beyond the eez’.105 This view is also espoused by Boyle, and in following a similar argument to that propounded by Treves, as discussed above, states in a forthright way that: The question whether disputes concerning all or part of a straddling stock fall inside or outside compulsory jurisdiction is thus more than a technical question of treaty interpretation. It poses some fundamental questions about the nature of equitable utilisation as a legal principle governing use of common resources. Both in the interests of equitable access to justice, and the effective management and sustainable use of straddling stocks, compulsory jurisdiction should apply to all aspects of such a dispute. The rights of coastal states must of course be maintained, but they should also be accountable for compliance with their obligations insofar as these affect other states or the international community as a whole. The exception for sovereign rights created by art. 297(3) of the Convention and incorporated in the 1995 Agreement should thus be construed narrowly, to cover only the exercise of coastal State discretion on matters that are purely of eez concern only, i.e., matters which do not affect straddling stocks, whether inside or outside the eez.106 Klein, also arrives at the same conclusion by recalling the reliance of the high seas fishing provisions as well as of those governing straddling and highly migratory stocks, on the availability of compulsory settlement procedures to elaborate on the content of obligations with regard to cooperation and conservation in case of disputes. It is further noted that the Agreement, which has been specifically concluded in order to implement these provisions under the Convention, will be able to achieve the sought balance of interests between coastal and high seas fishing States by providing a court or tribunal with compulsory jurisdiction to resolve such disputes and thus safeguard the respective its First Decade’, in D. Freestone et al., eds., The Law of the Sea, Progress and Prospects (­Oxford: Oxford University Press, 2006), 407–409. 105 B.H. Oxman, ‘The Rule of Law and the United Nations Convention on the Law of the Sea’, European Journal of International Law 7 (1996): 368. 106 Boyle, 1–2.

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rights.107 Considering that environmental treaties often lack precision in terms of objective rules of conduct and are deeply ambivalent in terms of their objects and purposes, Stephens puts forward a similar argument in viewing that especially the high seas fisheries provisions in the Convention were drafted under a procedural tactic with the expectation that open substantive questions will be later resolved in an international court or diplomatic body.108 Boyle, once again, makes even a more audacious statement, to the same direction with Klein and Stephen, in perceiving essentially the Agreement as a context of continuous interpretation of the Convention’s fishery provisions; given their inherently evolutionary nature insofar as they set standards for the conservation and management measures that States are required to take in the eez and on the high seas.109 8 Conclusions The Chagos Award, while focused on several provisions of the Convention being common to the Agreement – i.e., art.s 63(2), 64(1), and 297(3)(a) losc, did not interpret any of these within the context of the latter in spite of the Mauritius’ submission citing – albeit in a rather fragmented, if not selective – ­fashion, art. 7 unfsa as one of the grounds; as discussed earlier nevertheless Mauritius did not follow through its own argument. In fact, the Tribunal as seen, at least in the text of the Award, did not rely its analysis on the Agreement, but rather confined it entirely within the Convention. Nonetheless, it is interesting to note in its obiter dictum with regards to the Agreement the views expressed, where it held: the Tribunal is aware of the view, advanced in certain academic settings, that art. 297(3) should be construed narrowly in its application to arts 107 N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005), 204. 108 T. Stephens, ‘The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’, International Journal of Marine and Coastal Law 19 (2004): 173, 191–192. 109 A.E. Boyle, ‘Further Development of the 1982 Convention on the Law of the Sea: Mechanisms for Change’, in Freestone et al., 48. I have not quoted Boyle’s views expressed in A.E. Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’, International and Comparative Law Quarterly 46 (1997), as himself stated (Final Transcript, pg. 812:9-12) that his views therein were consistent with the argument pleaded on behalf of the UK, despite being invoked differently in the Reply of the Republic of Mauritius (18 November 2013), Volume iii.

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63 and 64 [losc] and to the 1995 Fish Stocks Agreement on the grounds that the entire purpose of the special regime for these species is to enable populations to be managed as a unified whole, and that this object and purpose is potentially frustrated by providing distinct dispute resolution regimes for such species in the exclusive economic zone and in the high seas. However desirable this purpose may be as a matter of policy, the Tribunal can see no textual basis for such a construction in either the Convention or the 1995 Fish Stocks Agreement. The latter agreement afforded ample opportunity to remedy any ambiguity of drafting in the earlier Convention, but nevertheless expressly provides that ‘Article 297, paragraph 3, of the Convention applies also to this Agreement’.110 Quite interesting, in relation to the above passage, is another comment made also in passing, this time by the arbitral tribunal in the Southern Bluefin Tuna case, where while resigning itself to the fact that Part xv of the Convention ‘falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction’,111 it noted that when the Agreement comes into force ‘should for State parties to it, not to go far towards resolving procedural problems’, as thereunder ‘the articles relating to peaceful settlement of disputes are specified by substantive provisions more detailed and far reaching than the ­pertinent ­provisions [of the Convention]’.112 Whatever may be the worth of  obiters,  one cannot disregard the irony when these two are to be read together. The restrictive interpretation of art. 32 unfsa, and by extension of art. 297(3)(a) losc, does not contradict the stipulation that the former ‘shall be interpreted and applied in the context of and in a manner consistent with the Convention’.113 The rationale of the restrictive approach, in general, views that the indeterminate wording of the limitation shall not be construed as to give any degree of primacy to coastal States, which would thus endorse a false impression emanating itself not from a point of law but rather from the inaccurate perception that only coastal States bear a genuine interest in the c­ onservation and management of such stocks.114 This kind of belief has been long in decline 110 Award, pgs 117–118, §301. 111 Southern Bluefin Tuna cases (Award on Jurisdiction and Admissibility, Decision of 4 August 2000), pg. 45 ¶62. 112 Ibid., at pg. 48 ¶71. 113 unfsa, art. 4. 114 For instance, it has been argued that ‘[a] tip of the balance toward coastal state interests is beneficial, since the coastal states are probably more “invested” in the long-term health of the straddling stock resource than a distant-water fishing nation, and thus, are

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as evidenced in numerous collapses of stocks within national jurisdiction, and subsequent treaty developments at many key fishery regions. To the contrary, and on the point of law, it would constitute a contra legem interpretation to construe broadly a limitation like this, which was adopted with the view of excluding high seas States fishing within the eez;115 in the sense that such broad interpretation will not any more fulfil its purpose to exclude essentially high seas fishing States ‘in’ the eez but it inversely expands coastal rights beyond the eez onto the high seas.116 In this respect, the restrictive interpretation on the limitation of compulsory dispute settlement is more harmonious with one of the main purposes underlying the regime of the Agreement, which is to eliminate any scope for creeping jurisdiction.117 more ­motivated to preserve that resource’, see W. Martin, ‘Fisheries Conservation and Management of Straddling Stocks and Highly Migratory Stocks under the United Nations ­Convention on the Law of the Sea’, Georgetown Environmental Law Review 7 (1995): 766. 115 For the latent tendency of coastal rights expansion seawards inhabiting the concept of limitations see G. Erasmus, ‘Dispute Settlement in the Law of the Sea’, Acta Juridica, 1 (1986): 22. 116 Per Treves, this is explained easily if considered that the concept of eez presents two complementary aspects: on the one hand, an important extension of the rights of the coastal States, and, on the other the prescription of a limit to these new rights, in particular in terms of space; qv., T. Treves, ‘La Pêcheen Haute Mer et l’Avenir de la Convention des Nations Unies sur le Droit de la Mer’, Annuaire Français 38 (1992), 889. 117 C. Higgenson, ‘The Law of the Sea Convention and the Protection of Fisheries’, Georgetown Environmental Law Review 7 (1995): 771.

Chapter 9

Protection Standards for the Marine Environment: Updating Part xii of the Law of the Sea Convention? Maria Gavouneli* It is a truth universally acknowledged that the Law of the Sea Convention (losc) is the most comprehensive global environmental treaty. It is equally true, however, that although the Law of the Sea Convention is the “constitution of the oceans”,1 it is inevitably maturing into a venerable old(er) instrument which would require additional efforts of interpretation so as to face, fully and adequately, the evolving challenges of today’s world.2 Amending losc was never considered an easy – or even desirable – task.3 Indeed, the on-going saga “for the development of an international legally binding instrument under the [losc]” in the context of biodiversity conservation clearly illustrates the complexities of the process and the political and legal difficulties to be encountered in the international arena.4 * Associate Professor of International Law, Faculty of Law, National & Kapodistrian University of Athens; Associate Research Fellow, Institute of Advanced Legal Studies, University of London. With grateful thanks to the instant reaction team in Oxford: Akis Papastavridis and Nikiforos Panagis. 1 In the famous words of Tommy Koh: “A Constitution for the Oceans”, Remarks by Tommy T.B. Koh of Singapore, President of the Third United Nations Conference on the Law of the Sea, Montego Bay, Jamaica, 11 December 1982, available at http://www.un.org/deps/los/ convention_agreements/texts/koh_english.pdf (last accessed: 4 October 2017). 2 Michael Wood, “Reflections on the United Nations Convention on the Law of the Sea: A living instrument”, in Jill Barrett & Richard Barnes (eds), Law of the Sea. unclos as a living treaty (biicl, London 2016), lxxvii–lxxxii. 3 losc Articles 312–313 have never been utilized; Irina Buga, “Between stability and change in the Law of the Sea Convention: Subsequent practice, treaty modification and regime interaction”, in Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott & Tim Stephens (eds), The Oxford Handbook on the Law of the Sea (oup, 2015), 46–67; M.J. Bowman, “The multilateral treaty amendment process – A case study”, 44 iclq 1995, 540–559; O.R. Young, “Commentary on Shirley Scott, The los Convention as a constitutional regime for the oceans”, in A.G. Oude Elferink (ed.), Stability and change in the Law of the Sea: The role of the los Convention (Martinus Nijhoff, 2005), 45. 4 Report of the Preparatory Committee established by General Assembly Resolution 69/292: 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, adopted on 21 July 2017, available at © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_011

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The question then remains: Are the provisions of Part xii of the Convention adequate for our present circumstances? If yes, then we may applaud the framers of the Convention and concentrate on implementing faithfully the rules we are so privileged to have. If, however, that is not the case, then we need to avail ourselves of the tools available to international law in order to ensure that the scope and purpose of the treaty remains fulfilled in spite of any inadequacies of content.5 All stakeholders and especially States are involved in this exercise, which is carried out in everyday diplomatic practice but also – and perhaps more visibly – in the jurisprudence generated by international courts and ­tribunals. The following sections address these issues, discussing both the general obligation to protect and preserve the marine environment (Part i) and the specific obligation to conduct an environmental impact assessment prior to any action undertaken by States (-parties) in the marine environment (Part ii). I

A General Obligation to Protect and Preserve the Marine Environment

Article 192 of the Law of the Sea Convention is a monument of elegant simplicity: “States have the obligation to protect and preserve the marine environment”. The wording may be traced to the Principles adopted by the 1971 Intergovernmental Working Group on Marine Pollution6 and the 1972 Stockholm Declaration, Principle 7, the latter of which reads: “States shall take all possible steps to prevent pollution of the sea by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea”.7 http://www.un.org/depts/los/biodiversity/prepcom_files/Procedural_report_of_BBNJ_Prep Com.pdf (last accessed: 4 October 2017). 5 The main such tool remains the Vienna Convention on the Law of Treaties (vclt), signed in Vienna on 23 May 1969 and entered into force on 27 January 1980, 1155 unts 18232; M.E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009); Olivier Corten & Pierre Klein (eds), The Vienna Conventions on the Law of Treaties. A Commentary (oup, 2011). See also I. Venzke, How interpretation makes international law: On semantic change and normative twists (oup, 2012); A. Orakhelashvili, The interpretation of acts and rules in public international law (oup, 2008). 6 Principle I stated: “Every State has a duty to protect and preserve the marine environment and, in particular, to prevent pollution that may affect areas where an internationally shared recourse is located”; unchr, Report of the Intergovernmental Working Group on Marine Pollution on its second session, UN Doc. A/CONF.48/WGMP.II/5 (1971), at 3. 7 The Stockholm Declaration was adopted on 16 June 1972, UN Doc. A/Conf.48/14/Rev.1 (1973), available at http://untreaty.un.org/cod/avl/ha/dunche.html (last accessed: 4 October 2017).

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In spite of the soft law providence, however, it is clear that Article 192 of the losc constitutes an all-encompassing general obligation,8 which is further specified in the subsequent provisions of Part xii, both in the more detailed provisions of Article 194 but also in the substantive stipulations of Articles 198–202, the procedural obligations set out in Article 197 on cooperation and Articles 204–206 on environmental impact assessment. It has long been argued that the reference to simply “States” rather than “States-parties” in the text underlined the customary nature of the principle enshrined in Article 192.9 The contractual character of the reference, though, is evident and the supposed message is obscured by the use of the same wording elsewhere in the Convention, including Parts xiii and xiv. Yet it is widely understood that Article 192 of the losc reflects customary law, as it was already agreed during the negotiations that all the environmental articles of the Convention were supported by a strong measure of opinio iuris and constituted a codification of preexisting obligations.10 Further express pronouncements are scattered in the cornucopia of environmental law documents, from the endorsement of the Secretary-General in his 1989 Report to the General Assembly11 to the 1992 Agenda 21,12 both drafted before the Convention came into force. The question remained, however: would the laconic formulation of the principle cover the full extent of the need for environmental protection in the marine environment? After two decades of observation, to some extent, the answer must be in the affirmative. There is no doubt that Article 192 of the losc lacks a spatial element, despite the fact the whole structure of the Convention is based on the concept of maritime zones over which the coastal State exerts jurisdiction directly proportional to their distance from the land.13 ­Consequently, 8 9 10 11 12

13

Detlef Czybulka, “Article 192”, in Alexander Proelss (ed.), United Nations Convention on the Law of the Sea. A Commentary (Beck, 2017), 1279. Myron Nordquist, Shabtai Rosenne & Alexander Yankov (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. iv, Martinus Nijhoff, 1991, at 39. Ibid., 1285; Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law & the Environment (3rd ed., oup, 2009), 387–390; Myron Nordquist (ed.), United Nations Convention on the Law of the Sea 1982. A Commentary, vol. iv (Martinus Nijhoff, 1991), 35–43. General Assembly resolution 44/461 of 18 September 1989, available at www.un.org. Paragraph 17.1 reads: “…International law, as reflected in the provisions of the United Nations Convention on the Law of the Sea, …, sets forth rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources…” (emphasis added); Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (vol. ii), 13 August 1992, available at http://www.un.org/depts/los/­ consultative_process/documents/A21-Ch17.htm (last accessed: 4 October 2017). Cornelius van Bynkershoek (van Bijnkershoek), De dominio maris dissertatio, Opera Minora, olim separatim, nunc conjunctim edita, recensuit & nonnulla addidit Auctor,

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the obligation of States to protect and preserve the marine environment extends to all maritime areas, both those directly under the jurisdiction of the coastal State and those beyond national jurisdiction in the high seas or the Area.14 The arbitral award in the South China Sea Arbitration confirmed this reading and concluded that because the environmental obligations in Part xii apply to States irrespective of where the alleged harmful activities took place, its jurisdiction is not dependent on the question of sovereignty over any particular feature, on a prior determination of the status of any maritime feature, on the existence of an entitlement by China or the Philippines to an exclusive economic zone in the area or on the prior delimitation of any overlapping entitlements.15 This blanket coverage does not constitute an allocation of jurisdiction over maritime areas: the power to intervene in support of the marine environment remains regulated by the specific provisions of the Convention. A typical example may be found in Article 56 on the Exclusive Economic Zone. In the same formulation used in Article 192, the coastal State is called upon to “protect and preserve the marine environment” in the area allocated to its exclusive jurisdiction as per Article 56(1)(b)(iii) – rather than a substitution of the general rule by a more specific one, the two provisions run in parallel, complementing

14

15

Editio secunda, Lugduni Batavorum, apud Joannem van Kerckhem, 1744 (a photographic reproduction with an English translation by Ralph van Deman Magoffin and an introduction by James Brown Scott, Oxford University Press, 1923), at 44: "...potestatem terrae finiri, ubi finitur armorum vis;..."; with special thanks to Nikoforos Panagis. itlos, Case no 21, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (srfc), Advisory Opinion of 2 April 2015, para. 120, available at https:// www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/C21 _AdvOp_02.04.pdf (last accessed: 4 October 2017); Massimo Lando, The advisory jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission, 29 Leiden jil 2016, 441–461. In the matter of the South China Sea Arbitration before an arbitral tribunal constituted under Annex vii to the 1982 UN Convention on the Law of the Sea between the Republic of the Philippines and The People’s Republic of China, pca case no. 2013-19, Award, 12 July 2016, para. 927 (emphasis added); see also with the same wording Maria Gavouneli, “State jurisdiction in relation to the protection and preservation of the marine environment”, in David Attard, Malgosia Fitzmaurice, Norman Martínez Gutiérrez & Riyaz Hamza (eds), imli Manual on International Maritime Law, vol. iii: Marine environmental law and international maritime security law (oup 2016), 5–26.

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each other. The same is true regarding the obligations incumbent upon flag States: the obligation to protect and preserve the marine environment suffices as a legal basis for unilateral actions in the high seas, which may not be specifically inscribed in other conventional instruments.16 As time goes by, international courts and tribunals have added to the regulatory depth of the principle and expanded its scope of application. Although the emphasis on pollution is evident in the text of the Convention, the International Tribunal on the Law of the Sea (itlos) had no difficulty in declaring in the Southern Bluefin Tuna cases that “the conservation of living resources of the sea is an element in the protection and preservation of the marine environment”.17 To a certain extent, this could be a typical case of evolutionary interpretation, solidly based on Articles 31(1) and 31(3)(c) of the Vienna Convention on the Law of Treaties, where the term is construed in light of changing conditions but with the original intention of the drafters strictly respected and the final result remaining squarely within the confines of the text and not crossing into a tacit modification of the original text.18 Indeed, the International Court of Justice (icj) seems to agree: There are situations in which the Parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used – or some of them – a meaning or content capable of evolving, not once fixed once and for all, so as to make allowance for, among other things, developments in international law.19 The arbitral tribunal in the Chagos case went a step further and read the limitations to the compulsory jurisdiction for the settlement of disputes under Part 16

See, for instance, the legal basis claimed by the European Council in adopting EC Regulation No 734/2008 of 15 July 2008 on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears, OJ L 201, 30 July 2008, 8–13, recital 2; an example offered by Czybulka, supra note 8, at 1280–1281. 17 itlos case nos 3 & 4, Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan), Provisional measures, Order of 27 August 1999, para. 70, available at https:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_3_4/Order.27.08.99.E.pdf (last accessed: 4 October 2017). 18 Buga, supra note 3, at 52; Julian Arato, Subsequent practice and evolutive interpretation, 9 Law and Practice of International Courts and Tribunals 2010, 443–494; N. Kontou, The termination and revision of treaties in the light of new customary international law (oup, 1994). 19 icj, Dispute regarding navigational and related rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, para. 64, available at http://www.icj-cij.org/files/case-related/133/133 -20090713-JUD-01-00-EN.pdf (last accessed: 4 October 2017).

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xv set out in Article 297 of the losc as simply indicative.20 In essence, the arbitral tribunal suggested that the reference in Article 297(1)(c) to “specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal State and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention” does not restrict but rather expands the scope of jurisdiction over disputes arising from the interpretation of such other rules and standards.21 As a result, cases addressing environmental issues may well find their way into compulsory adjudication, where courts and tribunals will be called upon to also apply such generally accepted standards enshrined in instruments that are as yet not subject to compulsory jurisdiction.22 The South China Sea tribunal confirmed as to the substance of the rule. It reiterated that Article 192 of the Convention imposes a duty on States parties, “the content of which is informed by the other provisions of Part xii and other applicable rules of international law”.23 It then proceeded to posit the protection of “rare or fragile ecosystems”, as defined in Article 2 of the 1992 Convention on Biological Diversity (cbd);24 an “obligation to prevent the harvesting of species that are recognized internationally as being at risk of extinction and requiring international protection”25 in application of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (cites);26 and the “incorporation” of the Convention on the International Regulations for

20

21 22

23 24 25 26

Chagos Marine Protected Area arbitration (Mauritius v. UK), pca case 2011-03, Award, 18 March 2015, para. 314, available at https://files.pca-cpa.org/pcadocs/MU-UK%20201503 18%20Award.pdf (last accessed: 4 October 2017); Stefan Talmon, “The Chagos Marine Protected Area arbitration: Expansion of the jurisdiction of unclos Part xv courts and tribunals”, 65 iclq 2016, 927–951; Nguyen Lan Ngoc, “The Chagos Marine Protected Area arbitration: Has the scope of losc compulsory jurisdiction been clarified?”, 31 International Journal of Marine and Coastal Law 2016, 120–143. Chagos Marine Protected Area arbitration, supra note 20, para. 316. Bernard H. Oxman, “Judicial application of environmental standards under the Law of the Sea Convention”, in James Crawford, Abdul G. Koroma, Said Mahmoudi & Alain Pellet (eds), The international legal order: Current needs and possible responses. Essays in honour of Djamchid Momtaz (Brill Nijhoff, 2017), 452–459, at 455–458. South China Sea arbitration, supra note 15, para. 941 (emphasis added). Ibid., para. 945. The cbd was concluded 5 June 1992 and entered into force on 29 December 1993, 1760 unts 79, available at http://www.cbd.int/convention/text (last accessed: 4 October 2017). South China Sea arbitration, supra note 15, para. 956. cites was concluded on 3 March 1973 and entered into force on 1 July 1975, 993 unts 243, available at http://www.cites.org/eng/disc/text/php (last accessed: 4 October 2017).

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Preventing Collisions at Sea (colregs)27 into the Convention, as “generally accepted international regulations” concerning measures necessary to ensure maritime safety, any breach of which constitutes a violation of the Convention itself.28 It is worth remembering that the Law of the Sea Convention regulates the relationship between the provisions of Part xii and “obligations under other conventions on the protection and preservation of the marine environment” in Article 237. The latter establishes a general “without prejudice rule” that allows States to conclude special or regional agreements “in furtherance of the general principles set forth in the Convention”,29 provided that obligations assumed under such agreements are “carried out in a manner consistent with the general principles and objectives”30 of the Convention. The outer limit of this freedom is prescribed in Article 311: such agreements must “not relate to a provision derogation from which if incompatible with the effective execution of the object and purpose”31 of the Convention, do “not affect the application of the basic principles embodied herein”32 and “do not affect the enjoyment by other State Parties of their rights or the performance of their obligations”33 under the Convention. With the scope of application of the rule thus confirmed, the tribunal was able to revisit the general obligation enshrined in Article 192 and add substance to the bare bones stated in the Convention. It read the brief 11 words as the statement of a composite obligation, comprised of a positive obligation to take measures “to prevent or at least mitigate”34 significant harm to the environment; and a negative obligation not to allow activities carried out within their jurisdiction and control to degrade the marine environment. Both 27 28 29 30 31 32 33 34

colregs was adopted on 20 October 1972 and entered into force on 15 July 1977, 1050 unts 16, outline available at http://www.imo.org/en/About/conventions/listofconven tions/pages/colreg.aspx (last accessed: 4 October 2017). South China Sea arbitration, supra note 15, para. 1083. losc Article 237(1). losc Article 237(2); see also in general R. Wolfrum & Nele Matz, Conflicts in international environmental law (Springer, Berlin 2010). losc Article 311(3). Ibid. Ibid. South China Sea arbitration, supra note 15, para. 941; Indus Waters Kishenganga arbitration (Pakistan v. India), pca case 2011-01, Partial Award, 18 February 2013, para. 451, available at https://www.pcacases.com/web/sendAttach/1681 (last accessed: 4 October 2017); quoting Arbitration regarding the Iron Rhine (IJzeren Rijn) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Award of 24 May 2005, xxvii riia 35–125, at para. 59, available at http://legal.un.org/riaa/cases/vol_XXVII/35-125.pdf (last accessed: 4 October 2017).

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parts obligate the State involved to “ensure that activities within their jurisdiction and control respect the environment of other States or of areas b­ eyond ­national control”35 and “ensure [that such activities do not] undermine a flag State’s r­ esponsibilities under the Convention in respect of the conservation of living resources and the obligation to protect and preserve the marine environment”.36 This obligation to ensure prevention of harm is an obligation of conduct37 and is to be carried out with due diligence, the latter further broken down in distinct elements: an obligation to adopt appropriate rules and measures, in essence an obligation to legislate; a “certain level of vigilance in their enforcement and the exercise of administrative control”;38 and an obligation to remedy, which includes an obligation to investigate a report of non-compliance, take any action necessary to remedy the situation and, finally, inform the reporting State of that action.39 The normative depth of such a regulation goes well beyond the general principle originally enunciated in Article 192. It displays a significant expansion of both the scope of application and the degree of specificity required of the rule. Would such an expansion be considered the product of interpretation, a simple evolution of the rule so as to follow the growing needs of society?40 This would address a need acknowledged in judicial practice, where both the icj in the Gabčíkovo-Nagymaros case and the arbitral tribunal in the Iron Rhine case 35 36

37

38 39 40

South China Sea arbitration, supra note 15; quoting icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 29, available at http://www.icj-cij .org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf (last accessed: 4 October 2017). South China Sea arbitration, supra note 15 (emphasis added) (specifically referring to the responsibilities of the flag state in relation to its fishing vessels); also referring to ­i tlos, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (srfc), supra note 14, paras. 118–136. South China Sea arbitration, supra note 15, para. 944, referring to the icj, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, para. 187, available at http://www.icj-cij.org/files/case-related/135/135-20100420-JUD-01-00-EN.pdf (last accessed: 4 October 2017); itlos Case no 17, Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), Advisory Opinion of 1 February 2011, paras. 111–116, available at https://www.itlos.org/fileadmin/itlos/documents/cases/ case_no_17/17_adv_op_010211_en.pdf (last accessed: 4 October 2017). South China Sea arbitration, supra note 15, para. 944; itlos, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission, supra note 14, para. 131. South China Sea arbitration, supra note 15; itlos, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission, supra note 14, para. 139. Panos Merkouris, “(Inter)temporal considerations in the interpretative process of the vclt: Do treaties endure, perdure or exdure?”, 45 Netherlands ybil 2014, 121–156.

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reiterated that the duty to prevent or at least mitigate environmental harm “has now become a principle of general international law”,41 as a result of which “new norms have to be taken into consideration, and … new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past”.42 Or would such expansion be an excellent example of tacit treaty modification by the subsequent practice of the parties?43 It is notoriously difficult to distinguish the different stages in a de facto amending process, as all such instances require a case-by-case approach. II

A Specific Obligation to Conduct an Environmental Impact Assessment

The best showcase of regulatory evolution, which may indeed amount to tacit modification of the contractual obligation, may be found in the losc provisions relating to the need for an environmental impact assessment (eia) for all activities undertaken in the marine environment. Article 206 of the losc creates a State obligation to assess the potential effects on the marine environment of planned activities under their jurisdiction or control, which may cause substantial pollution of or significant and harmful changes to the marine environment, but only when the State has “reasonable grounds for believing” thus and only “as far as practicable”. It is difficult to recognize in this convoluted arrangement the present-day detailed eia regulation in international law. Originally created by domestic legislation in the United States,44 the obligation to conduct an eia was not included in the 1972 Stockholm Declaration because it was considered too intrusive upon the exclusive jurisdiction of the State. Its utility, however, as the ultimate environmental tool was already understood and the need for an eia 41 42 43

44

Arbitration regarding the Iron Rhine (IJzeren Rijn) Railway, supra note 34, para. 59. Ibid; icj, Case concerning the Gabčíkovo–Nagymaros project (Hungary/Slovakia), Judgment of 25 September 1997, para. 140, available at http://www.icj-cij.org/files/case -related/92/092-19970925-JUD-01-00-EN.pdf (last accessed: 4 October 2017). Panos Merkouris, Article 31(3)(c) vclt and the principle of systemic integration: Normative shadows in Plato’s cave (Brill Nijhoff 2015); Georg Nolte, “Jurisprudence of the International Court of Justice and arbitral tribunals of ad hoc jurisdiction relating to subsequent agreements and subsequent practice: Introductory Report for the ilc Study Group on Treaties over Time”, in Georg Nolte (ed.), Treaties and Subsequent Practice (oup 2013), 169–209. National Environmental Policy Act (nepa), 42 usc §§4321–4370 (f) (1970).

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eventually found its way into recommendations 51 and 61 of the Action Plan for the Human Environment.45 Escaping its humble beginnings, the obligation to conduct an eia has flourished in almost all the countries of the world and has developed into standard State practice. Nevertheless, the particulars of implementation remain squarely within the discretion of each State, with a distinct lack of a global agreement prescribing the specific content of the eia required. The 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context46 remains essentially regional in character, although its open clause allows n ­ on-European States to adhere to it and slowly turn it into the world standard.47 The icj acknowledged in the Pulp Mills case that, in the absence of any minimum requirements in international law for such an assessment, it is for each State to determine the specific content of the obligation.48 In doing so, however, the Court unequivocally affirmed the customary law character of the “practice”,49 and proceeded to specify that an eia “must be conducted prior to the implementation of the project”50 and that “continuous monitoring of its effects on the environment shall be undertaken” “once operations have started and, where necessary, throughout the life of the project”.51 The Court determined also the applicable standard of care, suggesting that “due diligence and the duty of vigilance and prevention which it implies would not be considered

45

46 47

48 49 50 51

Stockholm Declaration, supra note 7. Cf. Principle 17 of the Rio Declaration on Environment and Development, concluded on 13 June 1992, UN Doc. A/CONF.151/26 (vol. i), ­available at http://www.unep.org/Documents/Default.asp?DocumentID=78&ArticleID= 1163 (last accessed: 4 October 2017); Neil Craik, “Principle 17: Environmental Impact ­Assessment”, in Jorge E. Viñuales (ed.), The Rio Declaration on Environment and Development: A Commentary (oup 2015), 451–470. Adopted on 25 February 1991 under the auspices of the UN Economic Commission for ­Europe, it entered into force on 10 September 1997, 1989 unts 309, available at http:// www.unece.org/env/eia/eia.html (last accessed: 4 October 2017). Timo Koivurova, “Could the Espoo Convention become a global regime for Environmental Impact Assessment and Strategic Environmental Assessment?”, in Robin Warner & Simon Marsden (eds), Transboundary environmental governance: Inland, coastal and marine perspectives (Ashgate, 2012), 323–342; Alan Boyle, “Developments in the international law of Environmental Impact Assessment and their relation to the Espoo Convention”, 20 reciel 2011, 227–231. Pulp Mills case, supra note 37, para. 205. Ibid., para. 204. Ibid., para. 205. Ibid; see also Nicolas Bremer, Post-environmental Impact Assessment monitoring of measures or activities with significant transboundary impact: an assessment of customary international law, 26 reciel 2017, 80–90.

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to have been exercised, if a party planning works”52 did not “undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context”.53 One could hardly recognize the rudimentary obligations set out in Article 206 of the losc compared to this standard articulated by the icj and itlos and in other multilateral agreements.54 The threshold requirement under losc is “substantial pollution of or significant and harmful changes to the marine environment”, which does not necessarily coincide with the “likelihood of a significant environmental harm” employed by the International Law Commission in the 2001 Articles on Prevention of transboundary harm from hazardous activities,55 or the risk indicated as the triggering circumstance by the icj in the Pulp Mills case and by itlos in both the Land Reclamation56 and the Southern Bluefin Tuna cases.57 The losc itself does not define any of those terms. Doctrinal debate suggests a distinction between “harmful” persistent changes to ecosystems as compared to “significant” transient pollution,58 but there is no indication that such a consideration was ever raised during the long negotiation process. In addition, the objective level of “substantial” or “significant harm” or “risk of significant adverse impact” is further diluted by an objective requirement: for the obligation to be triggered, the State must have “reasonable grounds for believing” that the planned activity may cause the aforementioned harm or impact, and must proceed only “as far as practicable”. The phrase is a typical relic of the 1970s, testament of an era that sought to acknowledge the particular circumstances of developing States. The itlos Chamber took into consideration such requirements in the Advisory Opinion on the Responsibilities and Obligations of Sponsoring States, but it eventually rejected a two-tiered approach to responsibility and liability.59 52 53 54 55 56

57 58 59

Pulp Mills case, supra note 37, para. 204. Ibid; Ilias Plakokefalos, “The Pulp Mills case”, 26 tijmcl 2011, 169–183. Lingjie Kong, “Environmental impact assessment under the United Nations Convention on the Law of the Sea”, Chinese jil 2011, 651–669. ilc Report, UN Doc. A/56/10, 2001, Chapter v, paras. 78–98, as approved by the Sixth Committee of the General Assembly, UN Doc. A/CN.4/521 and Corr.1. itlos, Case no. 12, Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional measures, Order of 8 October 2003, para. 99, available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_12/ 12_order_081003_en.pdf (last accessed: 4 October 2017). Southern Bluefin Tuna cases, supra note 17. Eike Blitza, “Article 206”, in Proelss (ed.), supra note 8, 1375. itlos, Responsibilities and Obligations of Sponsoring States, supra note 37, para. 158; Rosemary Rayfuse, “Differentiating the common? The responsibilities and obligations of

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A conspicuous omission is also evident in Article 206 of the losc: the o­ bligation to conduct an eia is not dependent upon any transboundary effect.60 This lies in stark contrast with most other instruments, including the European Union Directive on Environmental Impact Assessment.61 The lack of boundaries reinforces the lack of any spatial element across Part xii of the losc. The obligation therefore arises regarding any activity wherever undertaken in the marine environment, in areas both within and beyond national jurisdiction.62 In essence, the summary of these prerequisites – as informed by subsequent developments in general international law – transforms the bare bones of the duty to conduct an eia into yet another composite obligation. The obligation is triggered when there are reasonable grounds to believe that planned activities under their jurisdiction and control will have significant and/or harmful impacts on the marine environment, in which case the State will assess, as far as practicable, potential effects of such activities on the marine environment both prior to the implementation of the project and throughout its life; and will eventually communicate the results of such assessment in a continuous manner to all States. The South China Sea arbitral tribunal considers the whole process an “essential part of the comprehensive environmental management system”, which contains both instances of State discretion (the triggers of “reasonable grounds” and “as far as practicable”) and absolute obligations (the duty to communicate).63 It also makes clear that the procedural obligation to con­ duct an eia is linked to the substantive obligation to protect and preserve the

60 61 62 63

States sponsoring deep seabed mining activities in the Area”, 54 German ybil 2011, 459– 488; Ilias Plakokefalos, “Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area”, 24 jel 2012, 133–143; Laura Pineschi, “The duty of environmental impact assessment in the first itlos Chamber’s Advisory Opinion: Towards the supremacy of the general rule to protect and preserve the marine environment as a common value?”, in Nerina Boschiero, Tullio Scovazzi, Cesare Pitea & Chiara Ragni (eds), International courts and the development of international law (2013), 425–439. Warwick Gullett, “Transboundary Environmental Impact Assessment in marine areas”, in Warner & Marsden (eds), supra note 47, 269–296. Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, amending Directive 2011/92/EU on the assessment of the effects if certain public and private projects on the environment, OJ L 124, 25 April 2014, 1–18. Alex G. Oude Elferink, “Environmental Impact Assessment in areas beyond national jurisdiction”, 27 tijmcl 2012, 449–480. See also Alistair Rieu-Clarke, “Notification and consultation on planned measures concerning international watercourses: Learning lessons from the Pulp Mills and Kishenganga cases”, 24 Yearbook of International Environmental Law 2013, 102–130.

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marine environment, as an aspect of the duty of prevention.64 As prevention (and causation) extends into precaution (and risk), the obligation is further reinforced and the discretion of the State is commensurately reduced. Indeed, in its 2011 advisory opinion the itlos Chamber declared that the isba Nodules65 and Sulphides Regulations66 have turned the soft-law precautionary approach in Principle 15 of the 1992 Rio Declaration into a hard-law obligation for activities in the Area.67

…

In the preceding paragraphs I have reviewed the regulatory breadth of both the general obligation to protect and preserve the marine environment and the specific obligation to conduct an Environmental Impact Assessment under the Law of the Sea Convention in an attempt to determine whether the original formulation of these two obligations suffices for the increased needs of today’s world. I found that although the wording has remained intact, the normative scope has expanded significantly in response to changing circumstances and new rules of international law. As a result, I argue that the normative layers accrued upon both the primordial obligation to protect and preserve the marine environment under Article 192 and the eia regulation under Article 206 of the losc constitute an excellent example of how the black letter law gets informed by other rules of international law as a matter of course. This evolutive transformation is repeatedly affirmed by all international courts and tribunals in a consistent trend, thus further confirming that the Law of the Sea Convention is a living instrument after all – and will continue to hold our attention for some time to come. 64

65 66 67

Pierre-Marie Dupuy & Jorge E Viñuales, International Environmental Law (cup, 2015), 54. See, however, the issues raised by the icj, 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), Judgment of 16 December 2015, available at http:// www.icj-cij.org/files/case-related/150/150-20151216-JUD-01-00-EN.pdf (last a­ccessed: 4 ­October 2017); Jutta Brunnée, “Procedure and substance in international environmental law: Confused at a higher level?”, 5(6) esil Reflections, 3 June 2016. Article 31(2) of the 2000 Regulations on prospecting and Exploration for polymetallic nodules in the Area, Doc. ISBA/6/A/18, available at https://www.isa.org.jm/files/docu ments/EN/6Sess/Ass/ISBA-6A-18.pdf (last accessed: 4 October 2017). Article 33(2) of the 2010 Regulations on prospecting and Exploration for polymetallic sulphides in the Area, Doc. ISBA/16/A/12/Rev1, available at https://www.isa.org.jm/files/ documents/EN/Regs/PolymetallicSulphides.pdf (last accessed: 4 October 2017). itlos, Responsibilities and Obligations of Sponsoring States, supra note 37, para. 127.

Chapter 10

Weathering the 21st Century: How unclos Contributes to Responses to Climate-Related Disaster Events Anastasia Telesetsky* Scholars have made thoughtful connections between extreme weather events, disasters, and the Law of the Sea. Most of this work has, however, focused on the anticipated impact of long-tail extreme weather events on the operational aspects of the UN Convention on the Law of the Sea (unclos). For example, when sea levels rise appreciably and basepoints are submerged, what impact will that have on marine delimitation?1 Likewise, when oceans warm or acidify, what consequences are there for shared fisheries stocks?2 Less attention has been given to the question of what impact unclos as a treaty regime might be having directly or indirectly on the creation of disaster management risks associated with extreme weather events, or on associated responses. This chapter queries what role implementation of the unclos treaty text might play in creating and responding to the consequences of extreme weather events. 1 Introduction When unclos was negotiated, the State negotiating teams focused on the breadth of jurisdictional boundary claims, the extent of jurisdiction over * Professor of Law, University of Idaho. 1 David Caron, Climate Change, Sea Level Rise and the Coming Uncertainty, in Ocean Boundaries in Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Jon van Dyke, ed., 2009); Jenny Grote Stoutenberg, Disappearing Island States in International Law (2015); A.H. Soons, Effects of a Rising Sea Level on Maritime Limits and Boundaries, 37 Netherlands i.l.r. 207 (1990); David Freestone, International Law and Sea Level Rise, in International law and Global Climate Change (R. Churchill and D. Freestone,eds., 1991); Hayashi Moritaka, Islands’ Sea Areas: Effects of a Rising Sea Level, in Review of Island Studies (2013). 2 Alison Perry et al., Climate Change and Distribution Shifts in Marine Fisheries, 308 Science 1912 (2005) (observing that 2/3 of species in the North Sea Fisheries are shifting distribution in latitudes and/or depth over the course of 25 years).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_012

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l­ iving and non-living marine resources, the development of a marine scientific ­research regime, continental shelf delineation, and the status of the seabed beyond national jurisdiction. Observations in 1957 by U.S. oceanographer Roger Revelle and chemist Hans Suess that seawater would not be able to serve as a sink for the increasing amounts of CO 2 entering the atmosphere received little consideration from the unclos negotiators, who remained focused on individual State interests.3 During the unclos negotiations, the threat of extreme weather events was not seriously considered as an international matter. But times, they are a-changin’.4 Over the past two decades, as States and international organizations recognize the exposure and vulnerability of coastal residents and islanders to both “short tail” events such as tropical hurricanes and “long tail” events such as sea level rise,5 disaster risk reduction has become a priority.6 Disaster relief practitioners and scholars have made the compelling case that disasters are not inevitable.7 A disaster is a socially constructed phenomenon that manifests 3 Roger Revelle and Hans Suess, Carbon Dioxide Exchange between Atmosphere and Ocean and the Question of an Increase of Atmospheric CO2 during the Past Decades, 9 Tellus, 1957, at 18–27. In fact, the term “global warming” did not even enter into the public lexicon until 1975, following the publication of a paper by Wallace Broecker. Wallace Broecker, Climactic Change Are We on the Brink of a Pronounced Global Warming?, 189 Science, 1975 at 460–463. 4 Bob Dylan, The Times They Are A-Changin’ (Colombia 1964). Even though he was writing metaphorically, Dylan’s words are prescient when contemplating sea level rise and ­extreme weather. “Come gather ‘round people/ Wherever you roam/And admit that the ­waters /Around you have grown/And accept it that soon/You’ll be drenched to the bone/If your time to you is worth’s savin’/Then you better start swimmin’ or you’ll sink like a stone/ For the times they are a-changin.’” 5 The terms “short-tail” and “long-tail” are used by the insurance industry. Long-tail claims are claims that arise a long time period after a policy has expired. Short-tail claims are claims that typically arise and are settled within the time period for a given insurance policy. 6 Extreme weather events are understood as becoming disasters when they surpass either a spatial threshold (damages cannot be addressed with support from neighboring communities), temporal threshold (length of time for recovery surpasses community resilience), and impact threshold (number of people affected in an area makes it difficult to revive a community). See generally Intergovernmental Panel on Climate Change, Managing the Risks of Extreme and Disasters to Advance Climate Change Adaptation, A Special Report of Working Groups i and ii of the Intergovernmental Panel on Climate Change, in Climate Change: New Dimensions in Disaster Risk, Exposure, Vulnerability and Resilience (Chapter 1) 42 (2012). 7 Disaster is used in this chapter to refer to “serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses and impacts, which exceeds the ability of the affected community or society to cope using its own resources.” United Nations International Strategy for Disaster Risk Reduction (unisdr) Terminology, (Apr. 18, 2017), http://www.unisdr.org/we/inform/terminlogy.

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itself whenever there is a hazard8 in combination with exposure9 and vulnerability.10 Certain communities are particularly exposed and vulnerable, including many of the small island states where disaster losses have averaged from 1% to 8% gdp over both disaster and non-disaster years from 1970 to 2010.11 These communities are likely to continue to be vulnerable due to rising sea levels causing erosion, flooding, and saltwater intrusions into coastal aquifers. Sudden onset extreme weather events present formidable hazards. On February 20, 2016, Category 5 Cyclone Winston was the strongest cyclone in recorded history to make landfall in the South Pacific with winds gusting up to 285 km/h. Even with an early warning system in place issuing warnings on February 15, the Cyclone killed 44 people, destroyed or damaged 40,000 homes, and resulted in US 1.4 billion dollars of damage. In November 2013, Typhoon Haiyan (Yolanda) wreaked havoc in the Philippines, Micronesia, Vietnam, and China with winds gusting up to 315 km/h leading to extensive damage and the loss of between 6,340 and 7,400 individuals. Depending on the ability of a community to cope, extreme weather events can have devastating social impacts, leading to decades of disruption due to the loss of key economic sectors including agricultural and aquaculture production. While unpredictable hazards such as cyclones are more difficult to plan for, known hazards from long-range phenomena triggered by extreme weather events (such as warming temperatures) also pose challenges when there is too much exposure and too much vulnerability within a community. Sea level rise is a known hazard exacerbated by melting ice sheets, yet States struggle to reduce their exposure even with the foreknowledge of creeping damage. The Maldives, where 80% of the 1,200 islands that comprise the archipelago rise less than three feet above sea level, has made a desperate adaptation ­decision to purchase land in Australia to resettle anywhere up to 350,000 citizens.12 ­Kiribati recently purchased land in Fiji from the Church of England 8 9

10 11 12

Id. A hazard is a “dangerous phenomenon, substance, human activity, or condition that may cause loss of life, injury or other health impacts, property damage, loss of livelihoods and services, social and economic disruption or environmental damage.” See Intergovernmental Panel on Climate Change, Summary for Policymakers, in Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation 5 (2011). Exposure is “the presence of people; livelihoods; environmental services and resources; infrastructure; or economic, social or cultural assets in places that could be adversely affected.” Id. Id. at 9. James Burgess, Maldives Buying Land in Australia as Preparation for Mass Migration, (Jan. 10, 2012), http://oilprice.com/Latest-Energy-News/World-News/Maldives-Buying-Land-In -Australia-As-Preparation-For-Mass-Migration.html.

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in ­preparations for potentially resettling 110,000 citizens and has launched a “migration with dignity” policy to encourage its citizens to apply for jobs in neighboring countries that are less exposed to sea level threats.13 Residents of Tangier Island in the State of Virginia in the United States may also need to relocate as the island shrinks; if the current rate of sea level rise persists, it is likely to become uninhabitable for its current 475 residents within 50 years.14 And in Papua New Guinea, the Council of Elders on the Cateret Islands has initiated a voluntary resettlement from the islands that lie at sea level to a relocation site on another island.15 In addition to the residents of culturally unique islands, sea level changes today could impact millions of individuals living along the world’s coasts. ­Approximately 200 million people currently live along a coastline that is less than 5 meters above sea level, and this number is expected to expand to 400–500 million by 2100.16 Extending the range, more than a billion people live within 20 meters of mean sea level. Depending on the decisions taken by municipalities (e.g., prohibitions on building in flood zones) or by individuals (e.g., building of seawalls), residents in many of these communities may be highly vulnerable to the impact of a severe weather hazard. Large population States that may be particularly impacted by sea level rise attributed to ocean warming include Bangladesh, Vietnam, and China.17 Compounding the existential threats posed by extreme weather events is the challenge of attempting to respond to multiple hazards. For example, in the Marshall Islands in March 2013, a King Tide (highest annual tide) that flooded the capital city coincided with a severe drought in a different 13

Laurence Carmel, Besieged by the Rising Tides of Climate Change, Kiribati Buys Land in Fiji, (June 30, 2014), https://www.theguardian.com/environment/2014/jul/01/kiribati-climate -change-fiji-vanua-levu. 14 Oliver Milman, Climate Change Could Leave Chesapeake Bay Island Uninhabitable in 50 Years, (Dec. 10, 2015), https://www.theguardian.com/environment/2015/dec/10/climate -change-chesapeake-bay-tangier-island (reporting on a US Army Corps of Engineers Report finding that (a) 14 feet of the shore is being lost per year; (b) only 33% of Tangier’s original land mass from 1850 remains; and (c) the cost to restore the island with sea walls and dunes would cost usd$20–30 million). 15 Mostafa Naser, Assessing the Evidence: Migration, Environment and Climate Change in Papua New Guinea 37–38 (2015) (noting that the 80 hectares for relocation is not sufficient for the Cateret Island Population that will need 1500 hectares to meet the basic needs of the population). 16 World Ocean Review, Coasts http://worldoceanreview.com/en/wor-1/coasts/living-in -coastal-areas/. 17 Id.

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part of the ­island.18 Which begs the question: how can a State with highly ­limited ­resources respond to multiple threats simultaneously? A population that is a­ lready ­vulnerable may become even more so if they do not have time, ­resources, or capacity to recover sufficiently before another extreme event occurs. The t­ riggering of multiple hazards – particularly when they are ­uncorrelated, such as ocean floods and drought – can precipitate community disaster spirals where groups may eventually become unable to rebound from physical stressors. What can we glean from unclos about the ability of State parties to cope with the types of tropical storm and coastal flooding events that are becoming increasingly frequent and impacting existing response capacities? Does ­u nclos provide mechanisms to cope with gradual extreme weather events such as steady increases in ocean temperature? While disaster risk response as understood under the subsequently developed multilateral disaster guidelines was never articulated as a concern by unclos drafters,19 the treaty authors did understand the potential for marine catastrophic events generally. For example, the treaty drafters understood well the hazards associated with oil transport and required States to take measures to prepare for a potential oil spill; specifically, Article 199 requires States to jointly develop and promote contingency plans for protecting the marine environment from pollution.20 This is, however, the extent to which disaster was contemplated by the drafts. unclos does not directly address concerns about impacts of severe weather disasters on food supply. Focused on the development of fisheries resources, the unclos drafters sought to expand fishery production through concepts such as “optimum utilization of living resources.” The next section of this chapter examines the question of whether implementation of unclos obligations can effectively manage marine-related ­disaster risks – that is, whether the governance mechanisms and requirements under the treaty lessen or exacerbate the vulnerability of coastal communities to severe weather events. It explores portions of the existing unclos text that

18 19 20

Renee Lewis, “Nowhere to Move”: Marshall Islands Adapts Amid Climate Change Thre at Al Jazeera (May 19, 2015), http://america.aljazeera.com/articles/2015/5/19/Marshall -Islands-climate.html. United Nations, Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, 22 January 2005, A/CONF.206/6; United Nations; Sendai Framework on Disaster Risk Reduction 2015–2030, 18 March 2015, A/CONF.224/CRP.1. United Nations Convention on the Law of the Sea, art. 199, Dec. 10 1982, http://www .un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm.

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might increase such vulnerability, and argues that unclos creates disaster risk conditions for coastal community food security. 2

unclos and Disaster Risk Management

Tragic events happen in the marine environment including the annual loss of numerous vessels and the lives of their crew and passengers. Given potentially harsh conditions within the ocean, the assumption of risk has become an inherent part of human interaction with the oceans. What turns a tragic accident into a disaster is failing to take precautionary actions in spite of knowledge of the existence of one or more risks. For example, the navigation of a ­vessel filled with crude oil through a dangerous maritime channel at night transformed the already risk-prone activities of the Exxon Valdez into the disaster zone where the response to an accident would not be easy to manage. Disaster risk ­management is a practice across social institutions intended to reduce the exposure of groups and individuals to known and anticipated risks. Ocean warming is both a known risk and one that is anticipated to become worse if greenhouse gas mitigation efforts fail. Ocean warming is a gradual extreme weather event caused by the oceans absorbing excess atmospheric heat. Warming is having unprecedented effects on fish distributions and on fish size.21 Coping with warming is particularly challenging for rural communities that rely primarily on fisheries and marine resources for their livelihood, who are significantly impacted by shifting stock locations. unclos provides a direct avenue for responding to ocean warming by recognizing that “pollution of the marine environment” includes the “introduction by man, directly or indirectly, …[of] energy into the marine environment, which results or is likely to result in such deleterious effects as harm to living resources … hindrance to marine activities, including fishing … and reduction of amenities.”22 This is important because, under unclos, States have multiple obligations to prevent pollution of the marine environment.23 In theory, however unlikely in practice, if States had adhered to their pollution prevention obligations since unclos went into force then perhaps ocean 21

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W.W. Cheung, et al., Shrinking of Fishes Exacerbates Impacts of Global Ocean Changes on Marine Ecosystems, in 3 Nat. Clim. Change 254–258 (2013); W.W. Cheung, et al., Large-Scale Redistribution of Maximum Fisheries Catch Potential in the Global Ocean Under Climate Change in 16 Global Change Biology 24–35 (2010). unclos 1982, supra note 21 at Article 1(4). Id. at Articles 207–212.

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warming would not have doubled over the last two decades.24 However, the undercompliance with unclos in relation to pollution management exposes an additional disaster management risk embedded within the treaty. Specifically, the treaty’s provisions on conservation and sustainable use of marine living resources assume the existence of an ecosystem equilibrium that is no longer defensible as a treaty standard. Two unclos articles highlight this divergence. Article 61 involving living marine resources within the exclusive economic zone provides that States should identify conservation and management measures on the basis of producing “the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional regional or global.”25 Article 119 regarding high seas living marine resources provides the same language and indicates that allowable catch determinations and conservation measures should be pegged to “the maximum sustainable yield.”26 While “maximum sustainable yield” is not defined in unclos, it has been defined in various national fisheries management systems. For example, in New Zealand maximum sustainable yield (msy) refers to “the largest longterm average catch or yield that can be taken from a stock under prevailing ecological and environmental conditions.”27 For the concept to work for each coastal State, anything removed from the system must be replaced at some point in order for there to be future viable stock. Harvesting based on an msy theory relies on the assumption that organisms will replace themselves in the same spatial range for future harvests. In principle the calculation of a given stock’s msy should be regularly revisited to take into account “environmental and economic factors.” This is unrealistic, however, except for those States with large staffs of dedicated fisheries scientists and economists capable of designating a scientifically credible and dynamic msy that incorporates environmental and economic factors. Using msy as an appropriate management standard in a warming ocean increases the vulnerability of a coastal population to food insecurity. It has always been difficult to identify msy in light of limited knowledge about 24 25 26 27

Ocean Warming Doubles in Recent Decades, National Oceanic and Atmospheric Administration (Jan. 18, 2016), http://research.noaa.gov/News/NewsArchive/LatestNews/TabId/ 684/ArtMID/1768/ArticleID/11572/Ocean-warming-doubles-in-recent-decades.aspx. unclos 1982, supra note 21 at Article 61. Id. at Article 119. Fisheries Act (Act No. 88/1996) (N.Z.) (emphasis added).

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­ on-target fish (whether these are predator fish or prey fish). Furthermore, it n has become increasingly difficult to maintain msy as an objective standard in the face of changing ecological conditions that are not fully understood. Oceanographer Sylvia Earle expresses her concerns about msy labeling it as an “optimistic dogma” for resource management when she writes, The ‘single-stock’ model [which the msy model is built upon] ­cannot deal effectively with mathematically untidy factors such as competition among species for food, disruption of the target species’ close ­interactions with other organisms … changes in the habitat because of pollution, climate shifts, shoreline modification, and natural or humaninduced stress.28 This means that the unclos standards may be increasing long-term food ­security risks for States who are attempting to manage to a msy standard without building in additional management buffers for the movement of fish to cooler waters, or the loss of marine species that are unable to sustain the warmer temperature and do not have the ability to relocate (e.g., shellfish). As one group of researchers observed in performing climate forecasting for coastal fisheries: [C]limate change will affect the benchmarks used in fisheries management. Understanding and quantifying the effect of climate change on populations In combination with the effect of exploitation is a major challenge to rebuilding and maintaining sustainable fisheries in the coming decades.29 Projections of fisheries migrations suggest some profound changes in the ­ otential for maintaining catches. One study suggests that out of 224 exclusive p economic zones (eez), 80% will be impacted, with losses of catch potentially highest in the tropics (Pacific and Central Atlantic) where fish protein is a ­critical source of nutrition.30 Of the world’s fishing countries (170 countries), climate change – which includes gradual severe weather events such as ocean warming – will negatively impact fisheries revenues for 89%.31 28 29 30 31

Sylvia Earle, Sea Change: A Message of the Oceans 189–190 (1996). Jonathan Hare et al. Climate Forecasts for a Coastal Fishery, 20(2) Ecological Applications at 461–462 (2010). Vicky Lam et al., Projected Change in Global Fisheries Revenues under Climate Change, 6 Scientific Reports athttp://www.nature.com/articles/srep32607#ref13 n.13 (2016). Id.

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Compounding the problem of setting catches and conservation measures on the basis of msy in a changing environment, a coastal State is expected under unclos to “promote the objective of optimum utilization of the living resources” by determining “its capacity to harvest the living resources” of the eez and then “through agreements or other arrangements … giv[ing] other States access to the surplus of allowable catch.”32 Most of the States that currently do not have the national capacity to harvest marine living resources within their eez are low-income States with insufficient national food security strategies. At least some of these States have a large percentage of individuals who depend on fish and/or shellfish as a primary source of protein.33 States can rely on Article 62 of unclos to justify giving access to distant water fishing nations (dwfn) to their waters even though these States may not be able to properly enforce conservation measures and dwfn flag States may not ­provide adequate oversight of their registered vessels. Fishing practice based on the exercise of Article 62 may create increasing risk management concerns where dwfns are catching more than local fleets in places that are already vulnerable to extreme weather events such as the Federated States of Micronesia, Kiribati, Marshall Islands, Palau, Solomon ­Islands, and Vanuatu.34 Since a number of Pacific Island States rely on fishing access fees for government revenues, there has been reluctance to limit access to dwfns even as coastal fisheries abundance is beginning to shift.35 While limiting dwfns may not be necessary for some States – such as Kiribati, where a 35% increase in tuna is predicted due to ocean warming – they may still have to negotiate with industrial fleets to land some of its catch, in order to provide sufficient fish for the population as climate impacts reduce the availability of near coastal stocks.36 Other States in the Pacific region including Fiji, Solomon Islands, and Samoa are expected to experience gaps in their fish supply due

32 33

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unclos 1982, supra note 21 at Article 62. Many of the World’s Poorest People Depend on Fish, Food and Agriculture Organization of the United Nations, http://www.fao.org/Newsroom/en/news/2005/102911/index.html (2005) (Noting that 97 percent of fishers are in developing countries and that 2.5 billion people depend on fish for at least 20% of their average per capita animal protein). Johann Bell et al., Implications of Climate Change for Contributions by Fisheries and Aquaculture to Pacific Island Economies and Communities, in Vulnerability of Tropical Pacific Fisheries and Aquaculture to Climate Change 743 (Johann D. Bell, ­Johanna Johnson& Alistair Hobday, eds.) (2011). Id. at 741 (finding that access fees from dwfns are particularly important for Kiribati, Nauru, and Tuvalu, Federated States of Micronesia). Id. at 781.

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to changes in the fisheries resulting from warming oceans.37 In sum, business as usual practices of providing access to dwfns may need to be reconsidered under unclos.38 Because a current surplus of fish will not guarantee a f­ uture surplus, States need to be cognizant that access agreements offered under ­Article 62 do not prevent fish from being harvested for export that are needed for local nutritional needs. The West African coastal regions are at the epicenter of vulnerability when the state of fish stocks is considered, because millions of individuals depend on healthy, abundant fisheries both for basic nutrition and for their livelihoods.39 The waters of the region are fished by 22 coastal countries and more than 47 dwfns.40 Weather events are not the primary pressure on fisheries resources for the region but the rampant overfishing in the area ensures that the region is especially vulnerable to any natural perturbations in the region. Fish are regularly exported from the West African waters with no systematic monitoring or control of the fishing vessels.41 With this level of illegal or unreported fishing, it becomes impossible for the States to set total allowable catches that reflect the changing dynamics of the fishery. Using msy as a rational ecological basis for Western African fishery management becomes even more illusory when the predicted ecological shifts associated with global warming are factored in. Before extending opportunities to other States to fish within their coastal ­waters, many States should take measures to incorporate into access ­agreements a precautionary threshold that accounts for stock uncertainties associated with ocean warming. Even though many Global South States ­permit

37

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Id. at 773 (based on the Intergovernmental Panel for Climate Change’s A2 scenario which assumes a relatively slow demographic transition, relatively slow convergence in interregional gdp per capita differences, relatively slow energy efficiency improvements, and delayed developments in renewable energy). Id. at 782 (suggesting that there is a need for better management of stocks in light of direct and indirect effects of climate change and better apportionment of tuna stocks to meet food security needs). Food and Agriculture Organization, State of World Fisheries and Aquaculture – World Review of Fisheries and Aquaculture 71 (noting fish constitutes more than 50% of total animal protein for individuals in Ghana and Sierra Leone). Benedict Satia & Alhaji Jallow, West African Coastal Capture Fisheries, in Handbook of Marine Fisheries Conservation and Management 258 (R. Quentin Grafton, ed.). Jo Griffin, Tackling Illegal Fishing in Western Africa Could Create 300,000 Jobs, The ­Guardian (June 29, 2016), https://www.theguardian.com/global-development/2016/jun/29/tackling -illegal-fishing-in-western-africa-could-create-300000-jobs (reporting on findings of the Overseas Development Institute that 35 foreign reefers regularly acquire fish from fishing vessels that are exported outside of the region; 84% of the illegal fish in the region is transported by reefers).

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access to their waters by dwfn vessels,42 Some States have begun to recognize the need to revisit access policies. For example, in East Africa, ­Tanzania’s fisheries sector (one of the top ten countries in Africa in terms of total capture fisheries) contributes a mere 1.4% to the State’s gdp while 15% of the population are dependent on fishery resources. dwfn vessels operate within ­Tanzania’s water, but no one is quite sure how many are operating given a lack of appropriate monitoring.43 Each known operating vessel pays a mere $37,000 for harvesting privileges on the deep sea,44 a small amount when contrasted against the size of the business operating across the Indian Ocean.45 However, concerned that the dwfn vessels are overexploiting Tanzania’s resources, ­Tanzania is now considering requiring joint ventures between small-scale tuna fishers (who typically operate in near coast waters) and multinational deep sea fleets, in order to enhance the value of the fishery as a source of livelihoods.46 Even though States have sovereign rights to make decisions regarding living marine resource utilization within their eez, some States may benefit from regional coordination on dwfn policies that take into account ocean warming. Coordination among States to enforce responsible access policies that take into account shifting ecosystem conditions across a fishing-rich region such as the South Pacific or coastal Africa may alleviate some of the unintentional leakage of undesirable fishing activities across borders. Both regions currently have governance bodies where these cross-regional South-South conversations would be appropriate.47 42 43 44 45

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R. Gillet and C. Lightfoot, The Contribution of the Fisheries the Economies of the Pacific I­ sland Countries, Honiara: ffa (2001) (Observing that most Pacific Island States have ­access fee structures for dwfn vessels). Tuna Fishing Mismanagement, Fish-I Africa (Aug. 25, 2014), http://www.fish-i-africa.org/ tuna-fishing-mismanagement/. Id. (observing that about 50 foreign fishing vessel licenses are issued but that other vessels may also be fishing within Tanzanian waters. Further observing that Tanzania loses approximately $2.5 billion usd annually due to mismanagement of its tuna sector). Id. (noting about 20% of the world’s tuna comes from the Indian Ocean including the coastal waters Tanzania, Kenya, Mozambique, Comoros, Seychelles, and Mauritius plus adjacent high seas areas. Approximately 70–80% of this tuna is harvested by industrial fleets with many of these fleets coming from dwfns.); G. Galland et al., Netting Billions: A Global Valuation of Tuna, The Pew Charitable Trusts (May 2016): 1 (Calculating a global dock value for tuna of US $12.2 billion). Tuna Fishing Mismanagement, supra note 45. In the South Pacific, the South Pacific Regional Environmental Program for all coastal fisheries and the Pacific Islands Forum Fisheries Agency for all tuna fisheries would be appropriate governance bodies for creating policies that are responsive to the reality of ocean warming. In West Africa, the West Africa Regional Fisheries Program provides an appropriate forum. East Africa has a Fisheries Research Organization that might

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While there may be an assumption that implementation of unclos will protect marine resources in a changing climate,48 this chapter argues that ­u nclos can also undermine marine resource protection. Continued “business as usual” implementation of select unclos mandates involving fisheries management may increase community vulnerability in certain regions. In spite of the potentially unmanaged risk embedded in Article 62 of the unclos, the Convention, as described below, also provides important platforms for improving adaptation responses to severe weather events. 3

unclos as a Response to Disaster Management Risk

In addition to displacing fish stocks, ocean warming is being directly linked to extreme weather events as warmer seawater temperatures provide additional energy for an increased number of intense tropical storms each season.49 The unclos framework offers specific means to address the intersection of disaster risk reduction and extreme weather events. Specifically, States are expected to internationally cooperate and “shall provide, as appropriate, other States with a reasonable opportunity to obtain from it or with its cooperation, information necessary to prevent and control damage to the health and safety of persons and to the marine environment.”50 Under these provisions, States have been jointly developing international tools such as the Global Ocean Observing System (goos) to improve hazard predictions. The goos consists of a combination of unmanned research floats and manned research vessels that have been deployed across the oceans to further marine scientific research.51 Based on continuous, near real-time data

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­ rovide an appropriate institution for defining precautionary thresholds for future access p agreements. unclos 1982, supra at Article 192. The First Integrated Marine Assessment: World Ocean Assessment Chapter 5 1 (Jan. 21, 2016) http://www.un.org/depts/los/global_reporting/WOA_RegProcess.htm. unclos 1982, supra note 21 at Article 242. What is goos?, The Global Ocean Observing System, http://www.ioc-goos.org/index. php?option=com_content&view=article&id=12&Itemid=26&lang=en. (explaining that the system includes: 3000 Argo floats which collect high-quality temperature and salinity profiles from the upper 2000m of the ice-free global ocean; 1250 drifting buoys which record surface currents, the temperature and the atmospheric pressure; 350 systems on commercial or cruising yachts which collect the temperature, salinity, oxygen and carbon dioxide levels in the ocean and the atmosphere; 100 research vessels which measure all the physical, chemical and biological parameters, between the surface of the sea and the ocean floors every 30 nautical miles along 25 transoceanic lines; 200 marigraphs for the

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collected by the goos, States should be able to make better short-term early warning risk assessments of approaching extreme weather events. Depending on trends in the data, this information may also contribute to better long-term development decisions. Using near real-time data about sea surface winds and sea surface temperatures collected by goos in combination with other data such as distribution of community infrastructure, topographic maps, and bathymetric maps, coastal managers can identify the level of community exposure to severe weather events and potentially avoid future disasters through smarter coastal land use.52 As a prediction tool, the goos may provide opportunities to reduce the vulnerability of communities to cyclical hazards. For example, predictions of El Nino or La Nina may give communities time to prepare for the consequences of these weather patterns such as conditions that favor increased mosquito reproduction and potentially dengue fever epidemics.53 Information from the system may prevent future outbreaks of seafood-related poisoning particularly as aquaculture efforts expand globally. For example, in 1987 the temperature in the waters near Prince Edward Island, Canada, were abnormally warm. When they combined with runoff from heavy precipitation events, diatoms bloomed and contaminated cultured mussels with a toxic acid. Over 100 people experienced either short-term or permanent amnesia and three people died as a result of the outbreak.54 Better tracking of anomalies in coastal conditions might prevent similar future health crises. Noting that 2.6 million people have drowned due to storm surges in the last two centuries, the World Meteorological Organization and ­Intergovernmental Oceanographic Commission have been implementing the Coastal Inundation Forecasting Demonstration Project (cifdp).55 This collaborative effort

52 53 54 55

detection of tsunamis; 50 commercial ships which launch probes measuring the temperature and salinity between the surface and the ocean floor on their transoceanic ways; and 200 moorings in open sea which are used as long-term observatories, recording weather, chemical and biological parameters on a fixed site between the surface and the bottom). National Research Council, The Global Ocean Observing System: Users, Benefits and Priorities, (1997). Id. (noting that climate forecasts may be very valuable to international aid organizations such as icrc and agricultural development organizations such as the Food and Agriculture Organizations to reduce vulnerability within communities). Id. ( “Although the precise role that extreme weather and elevated sea surface temperatures played in generating this series of adverse events is unclear … forecasting of similar changes could help target surveillance and improve readiness.”). Implementation Plan, Coastal Inundation Forecasting Demonstration Project 1 (2015), http://www.jcomm.info/index.php?option=com_oe&task=viewDocumentRecord&docI D=16549.

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is designed to provide early forecasting and warning systems to coastal communities in order to save lives, livelihoods, and property. Making this type of forecasting widely available is critical, as most Global South States do not run storm surge or wave/hydrological models.56 Technology transfer and capacity building projects are underway in Bangladesh, Fiji, the Caribbean, and Indonesia, with additional projects planned in China and South Africa. In order to benefit from developments such as goos and the cifdp, States with populations vulnerable to disasters will need to be better integrated into existing and new regional and/or global networks of marine scientific facilities. This is a necessary step to bolster capacity building for disaster risk management, and is supported by unclos obligations. In general, Article 239 provides that “States and competent international organizations shall promote and facilitate the development and conduct of marine scientific research.” More specifically, Article 275 calls upon States to either “directly or through competent international organizations and the Authority … promote the establishment, particularly in developing coastal States, of national marine scientific and technological research centers … to enhance their national capabilities to utilize and preserve their marine resources for their economic benefits.” ­Article 276 then encourages the establishment of regional centers “particularly in developing states” to promote “technical cooperation with other States of the Region.”57 While unclos never explicitly uses the language of disaster risk reduction, which has been adopted by the UN General Assembly in subsequent resolutions, the combination of the obligation to promote marine scientific research combined with the obligation to promote national and regional ­marine ­research and technology transfer centers suggests a significant role for unclos in implementing disaster risk reduction strategies. A partnership of leading hazard and disaster research institutions has identified “research on why, when and how natural hazards turn to be disasters and reduction of predictive uncertainty” as “the most important scientific agenda items in natural hazard and disaster risk reduction.”58 Real-time data for vulnerable 56 57 58

Id. unclos 1982, supra at Article 277(f). Extreme Natural Hazards and Societal Implications Project, Declaration on ­Disaster Risk Reduction Through Research and Assessments (2011). The project includes participants form the American Geophysical Union, Global Ocean Observing System, Integrated Research on Disaster Risks Programme, International Geophysical Union, International Society for Photogrammetry and Remote Sensing, International Union of Geodesy and Geophysics, International Union of Geological Sciences, and the International Union of Theoretical and Applied Mechanics.

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coastal ­communities that not only rely upon the oceans for their livelihood but also live within harm’s reach (e.g., in the case of a major storm event) can make a profound difference in the community’s long-term adaptation planning, including difficult decisions related to relocation. Technology transfer for tools such as microsatellites, plus analytical programs that turn satellite data into usable information for stakeholders, may be important for providing advance hazard warnings. Given the dependence and the vulnerability of the South Pacific Islands and Western Africa on coastal resources, these regions are ­under-resourced in terms of marine scientific capacity. For example, even though approximately 10% of the world’s ocean resources are under the jurisdiction of the small Pacific island developing States,59 these States do not have national or regional research centers.60 One obvious space for technical cooperation among unclos marine researchers is basic fisheries management research. Given increasing uncertainties in fisheries management, there is a great deal of information that can be collected and would be useful if shared across regions. For example, scientists may develop seasonal and multi-year adaptive forecasting tools to assist with understanding differences in fish spatial distribution and fish abundance levels. Based on this information, scientists may be able to make better use of existing tools designed to protect endangered species such as Marine Protected Areas across the actual range of a species and to use this knowledge for ­enhancing protection of key food sources.61 Another space for technical cooperation across regional unclos research centers that would contribute to disaster risk reduction is the establishment of regional risk financing and other disaster risk instruments that pool risks and potentially some of the social pressures that contribute to disasters. In the Caribbean region, the Caribbean Catastrophe Risk Insurance Facility (ccrif spc) has assisted seventeen vulnerable States with weathering severe weather events associated with wind, waves, storm surge damage, and excessive ­rainfall 59

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American Samoa, Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Guam, Kiribati, Marshall Islands, Nauru, New Caledonia, Niue, Northern Mariana Islands, Palau, Papua New Guinea, Samoa, Solomon Islands, Timor-Leste, Tonga, Tuvalu, and Vanuatu. Expert Group Meeting: Marine Science and Technology to Support Sustainable Development in sids para. 26 (May 14–17, 2013) (summarizing presentation by Charlotte Salpin from the UN Office of the Legal Affairs’ Division for Ocean Affairs and Law of the Sea indicating that “the implementation of [unclos] Part xiv has been lacking.”). K. Weng et al., Umbrella Species in Marine Systems: Using the Endangered Humphead Wrasse to Conserve Coral Reefs, 27 Endang Species Res 251–263 (2015) (observing that the mpas designed to protect the endangered humphead wrasse are too small to cover the actual range of the species).

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to coastal areas.62 Operating as a regional insurance fund, States are able to purchase coverage for up to usd 100 million to cover an unlimited number of events in a year.63 States choose coverage options based on different trigger events, such as a 1 in 15 year hurricane.64 Over its lifespan, the fund has provided insurance payments to cover losses associated with a variety of severe weather events,65 and with support from the World Bank and the European Commission will be increasing its membership to include Central American States and the Dominican Republic.66 Additional innovative risk mitigation products are being launched for purchase by individuals within Caribbean States. Recognizing that repeat ­exposures to severe weather events can challenge coping capacity for low-­ income individuals, Grenada, Jamaica, and Saint Lucia have begun offering low-­income citizens a “livelihood protection policy,” which is an insurance policy to protect against severe weather events including heavy rainfall and high winds with maximum payments of approximately usd 250 per event.67 To assist individuals with disaster preparations, all policy holders are provided access to an early warning system by an sms text system that announces 62 63 64

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Frequently Asked Questions, The Caribbean Catastrophe Risk Insurance Facility, http:// www.ccrif.org/content/rtfs-faqs (noting heavy rainfall and secondary hazards such as landslides are not covered by the Insurance). Id. Recurrence intervals are calculated on the probability of the occurrence of certain types of natural disasters such as floods and droughts. These intervals are calculated on the basis of as much historical data as possible. In recent years, these intervals have need to be recalculated because certain events such as Category v hurricanes are happening more frequently than they had historically. A variety of States have received payments associated with severe marine weather events. For example, in 2016, ccrif spc paid 260,000 usd to Belize for excessive rainfall from Hurricane Earl. In 2015, Dominica received 2.4 million usd for excessive rainfall from Tropical Storm Erika. In 2014, Barbados received $1.28 million usd and Anguilla and St. Kitts and Nevis received 1.5 million usd for excessive rainfall. Anguilla had already received approximately $500,000 usd for rainfall associated with a tropical hurricane a month earlier. European Commission and World Bank Sign Agreement on Catastrophe Risk Insurance for Caribbean and Central American Countries, World Bank & European Commission, (Apr. 15, 2016) http://www.ccrif.org/sites/default/files/Press_Release_EU_WB_Signing_Ceremony _April_15_2016.pdf. mcii Newsletter 1(1), Caribbean Launch of Livelihood Protection Policy, Munich Climate ­Insurance Initiative, http://www.climate-insurance.org/fileadmin/mcii/documents/MCII _Carib_Newsletter_Vol1_final.pdf; Grenada Livelihood Protection Policy Summary,UN Framework Convention on Climate Change News Room (Mar. 2, 2016), https://unfccc.int/files/ adaptation/groups_committees/loss_and_damage_executive_committee/application/ pdf/20160202_term_sheet_example.pdf.

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i­ ncoming weather events. If a trigger event occurs for which coverage has been purchased, the policy pays out more quickly than a government post-disaster recovery program would, enabling individuals to quickly resume business. The innovative delivery of early warnings to individuals is particularly important because impoverished people living in regions without community-level warming systems have historically been unable to respond in a timely fashion to the arrival of extreme weather events.68 Similar multilateral risk management efforts exist in the Pacific with the Pacific Disaster Risk Financing and Insurance Program (Pacific drfi) under the Pacific Catastrophe Risk Assessment and Financing Initiative Program (pcrafi) and in Africa with the African Risk Capacity (arc) program developed under the African Union.69 The Pacific drfi has extended catastrophe risk insurance coverage for the immediate impact of large severe weather events such as tropical cyclones to six States as part of a pilot program.70 ­Under this program, Tonga received a usd 1.27 million payment for damage from Tropical Cyclone Ian.71 Under the Pacific Program, individual livelihood insurance options have not yet been developed. The arc program differs from the ccrif-spc and Pacific drfi program in terms of its reach. In short, it is not clear to what extent the risk pooling insurance available to States from arc might cover potential coastal emergencies and loss of fisheries as compared to drought and agricultural losses.72 However, the arc program provides for States to coordinate on the development of contingency plans.73 Shared marine scientific research regarding disaster risk mitigation and cooperation between research centers could facilitate greater disaster risk reduction by 68 69 70 71 72

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Theodore Talbor & Owen Barder, Payouts for Perils: Why Disaster Aid is Broken and How Catastrophe Insurance Can Help to Fix It, 14 (2016). Pacific Catastrophe Risk Assessment & Financing Initiative, Pacific Disaster Risk Financing and Insurance Program (Nov. 2014) https://www.gfdrr.org/sites/gfdrr/files/publication/ PCRAFI_Program%20Pager_FINAL%20VERSION.pdf. Id. Original members included Marshall Islands, Samoa, Solomon Islands, Tonga and Vanuatu. The Cook Islands subsequently joined. The Solomon Islands subsequently left the program after flash floods and an earthquake were not covered. Id. The materials on the arc website at www.africanriskcapacity.org do not provide any specific explanation of the coverage of the individual country policies. Most of the texts explaining arc focus on drought risk management scenarios indicating 30 million usd payouts per country per season for drought events that occur with a frequent of 1 in 5 years of less. Agreement for the Establishment of the African Risk Capacity Agency, African Risk Capacity Agency, http://www.africanriskcapacity.org/c/document_library/get_file?uuid=0d84749f -c44e-4554-8206-e638acf4fdfc&groupId=350251.

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­providing individual insurance products for low-income residents or by enlarging the scope of sovereign catastrophe risk insurance.74 Finally, looking holistically at the goals of unclos, technical cooperation in order to enhance a state’s coping capacity for severe weather events would contribute to promoting “the economic and social advancement of all peoples of the world.”75 Some form of shared pooled disaster financing supported by data acquired through shared marine research should contribute to the more rapid recovery of States from disaster events. The example of the Caribbean fund reinforces the value of quick capital infusions into the economy after a ­disaster event. Without timely recovery from severe weather events, States may find it increasingly difficult to deliver on their other obligations under the Law of the Sea including protection and preservation of the marine ­environment.76 For example, the landing of Cyclone Evan in December 2012 in Samoa resulted in financial losses equivalent to one-third of Samoa’s annual economic output.77 As of June 2013, Samoa was still seeking international financing to cover its losses.78 4

Concluding Thoughts

unclos is a text that must be read in light of a changing ocean and the need for risk management and adaptation to guide how States implement their ­obligations. If the treaty is not read in a manner that acknowledges that global ocean shifts have impacted unclos obligations, then unclos may become moribund as an instrument for protecting and preserving the oceans. Accepting that terms in unclos may need to be re-interpreted in light of the warming and acidifying oceans may assist States in developing appropriate strategies for 74

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Brian Lucas, Disaster Risk Financing and Insurance in the Pacific, gsdrc Applied ­ nowledge Services (Dec. 3, 2015), http://www.gsdrc.org/wp-content/uploads/2016/01/ K HDQ1314.pdf (noting that inadequate disaster risk mitigation is one of the reasons for low insurance penetration in the Pacific Islands, and that the Pacific Fund has not received the same broad support from Japan, Canada, United Kingdom, France and the World Bank as the Caribbean program has recieved). unclos 1982, supra note at Preamble. unclos 1982, supra at Article 192. UN Office for Disaster Risk Reduction & Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, Addressing Risk, Harnessing Opportunity: Building Disaster Resilience in sids (2013). International Monetary Fund, Samoa Request for Disbursement under the Rapid Credit ­Facility – Staff Report 5 (June 2013).

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mitigation and adaptation.79 As States prepare for a future with more severe sudden onset weather events and warmer oceans, the concept of disaster risk reduction will become an increasing and necessary part of treaty implementation and possibly also treaty interpretation. unclos provides key cooperative opportunities for States to explore what the global disaster risk community has been calling “no-regret” or “low-regret” options to disaster risk management, so named because they have short-term net benefits beyond simply reducing vulnerability of a community, such as ­improving livelihoods.80 By working within the existing framework of ­u nclos to evaluate how the implementation of unclos obligations can take into consideration the threat posed by climate risks, disaster risk management can come from “inside” the Law of the Sea rather than being a secondary concern tacked onto the existing Law of the Sea.81 This may require reinterpretation of parts of unclos, as well as improved implementation for other parts of ­u nclos. It may even require re-negotiation of key sections of the treaty such as those parts of the treaty addressing transboundary fish management. Improving national, regional, and international implementation of unclos is critical because the hazards of tropical storms, ocean warming, and sea level rise cannot be isolated from concurrent hazards such as ecosystem degradation and marine environmental pollution. Systematically tackling environmental degradation will enhance the existing and future coping capacity of States to manage severe weather hazards. In addition, it bears mentioning that while many of the examples in this chapter arose in the Global South, the types of severe weather events contemplated in this chapter are likely to materialize along many coastlines as severe weather events move polewards.82 While updating of unclos to reflect new environmental realities would be beneficial, unclos remains a powerful legal framework for addressing 79

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R. Wolfrum and N. Matz, Conflicts in International Environmental Law (Springer, 2003): 145. (“Treaties, particularly if they have been negotiated a long time ago, might be more viable if an interpretation of their terms is not static but adaptable and expressive of the understanding of terms at the time of their interpretation.”). Examples of no-regret or low-regret management options include building appropriate drainage systems, improving building codes, limiting saltwater contamination of groundwater, pooling risk across and regions, and engaging in habitat restoration projects. Allan Lavell & Andrew Maskrey, The Future of Disaster Risk Management: An On-going Discussion (2013) http://www.unisdr.org/files/35715_thefutureofdisasterriskmanagement.pdf (observing that public policy instruments and strategies need to be the primary instruments for managing developmental disaster risks rather than mainstreaming disaster risk reduction into other State efforts). World Ocean Assessment supra note 44 at Chapter 5.

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c­ ontemporary ocean challenges. It offers a navigational chart to help States steer through the shoals of existing vulnerabilities. Whether States are capable of avoiding disasters will depend on their individual and cooperative commitment to identifying hazards and taking precautionary action.83 Even when States are faced with multiple hazards – as so many States in Asia, Africa, and the Pacific are today – disaster need not be inevitable.84

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Given the social hurdles of implementing change, it is incumbent on States to engage early in addressing risks. The Netherlands offers an interesting example of the need to evolve responses over time. Dikes were built as early as the 10th century and land reclamation began in the 16th century to both increase flood protection and expand food production. With almost a century of adaptation, the Dutch lifetime mortality rate from floods has decreased from 5% in the 13th and 14th century to .01%. See ipcc report supra note 6 at 52. Barriers that States must overcome include properly estimating risks, ensuring long-term budget commitments, recognizing that a lack of long-term planning will result in future tradeoffs, and avoiding additional procrastination. Id. at 452.

Chapter 11

The Sendai Opportunity: Maritime Access and Cooperation for Disaster Relief Stephen Minas 1 Introduction The acute nature of the challenge of international disaster relief in the AsiaPacific is well captured by the UN Office for the Coordination of Humanitarian Affairs (ocha): Increasingly frequent small, medium and large scale disasters in the AsiaPacific region have seen an unprecedented scale of response by international civilian and military organizations in support of the Affected State. The region, due to geological and environmental factors, is highly vulnerable and responders are required to operate in unique circumstances. In some areas, disaster warning systems are limited and post disaster communications with the affected population is extremely challenging due to the vast distances and level of economic infrastructure.1 Maritime access for disaster relief is particularly significant in the Asia-Pacific littoral, given its geography. Maritime access by military services, principally navies but also other forces, is also worthy of focus given the reality that ‘military capacities in Asia-Pacific countries are often the first capabilities ­offered and make a valuable contribution in responding to regional natural disaster emergencies’.2 These factors suggest that oceans law – which regulates ­human activities at sea – is potentially an important contributor to the governance of international disaster relief. This is particularly so given that, while ­international disaster relief law must be considered to be largely ‘soft law’,3 the 1 The Asia-Pacific Conferences on Military Assistance to Disaster Relief Operations ­(apc-madro), Asia-Pacific Regional Guidelines For The Use Of Foreign Military Assets In Natural Disaster Response Operations, Version 8.01 – 14/01/14, United Nations Office for the Coordination of Humanitarian Affairs, para. 1. 2 Ibid, para. 3. 3 Imogen Saunders ‘International Disaster Relief Law and Article 38(1)(c) of the Statute of the International Court of Justice: The Forgotten Source of International Law’. In The International Law of Disaster Relief, edited by David D. Caron, Michael J. Kelly, and Anastasia Telesetsky, 29–40. Cambridge: Cambridge University Press, 2014, 29. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_013

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United Nations Convention on the Law of the Sea (los Convention losc), and the conventions for which the International Maritime Organization (imo) is responsible, are binding treaties. The structure of the paper is as follows. Section 2 identifies the challenge of elaborating international disaster relief law and regulation and the opportunity of utilizing oceans law to contribute to meeting this challenge. Section 3 provides an overview of the value of maritime access and services to disaster relief. Section 4 critically discusses the current state of law and regulation concerning international disaster relief. Section 5 discusses how existing oceans law and platforms of cooperation can contribute to strengthening international disaster relief, particularly regarding maritime access of relief services and supplies. Section 6 analyzes the Sendai Framework for Disaster Risk ­Reduction, adopted in 2015, and the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters, adopted in 2016, as o­ pportunities to move this agenda forward. Section 7 concludes. 2

Disaster Relief: The Challenge and the Opportunity for Law and Regulation

The elaboration of the contribution of oceans law to international disaster relief law is one component of a broader challenge: to bring greater coherence to disaster law and regulation, in order to better prepare states and other actors to respond to disasters. The concept of disaster relief encompasses a broad array of activities, including direct assistance (e.g. distribution of goods and services), indirect assistance (such as transporting relief goods and personnel) and infrastructure support (e.g. the repair of damaged transportation and power infrastructure).4 These emergency response activities in the immediate aftermath of a disaster event are but one stage of a ‘cycle of disaster law’, which ­includes subsequent stages of compensation and insurance, rebuilding and risk mitigation.5 The cycle concept encourages conceptualizing initial

4 The Asia-Pacific Conferences on Military Assistance to Disaster Relief Operations (apcmadro), Asia-Pacific Regional Guidelines For The Use Of Foreign Military Assets In Natural Disaster Response Operations, Version 8.01 – 14/01/14, United Nations Office for the Coordination of Humanitarian Affairs, para. 12. 5 Daniel A. Farber ‘International Law and the Disaster Cycle’. In The International Law of D ­ isaster Relief, edited by David D. Caron, Michael J. Kelly, and Anastasia Telesetsky, 7–20. Cambridge: Cambridge University Press, 2014, 10.

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assistance as one component of a broader endeavour, rather than as a standalone activity. The concept of disaster risk reduction (drr) is related to this integrated approach. The UN Office for Disaster Risk Reduction describes drr as ‘the concept and practice of reducing disaster risks through systematic efforts to a­ nalyse and reduce the causal factors of disasters. Reducing exposure to hazards, lessening vulnerability of people and property, wise management of land and the environment, and improving preparedness and early warning for adverse events are all examples of disaster risk reduction’.6 drr’s focus on preparedness entails, inter alia, the preparation of legal and regulatory frameworks that enable effective responses to natural hazards. As work to operationalize the drr concept has gathered pace in recent years, scholars have begun examining the relevance of bodies of doctrinal law,7 as well as the potential roles of non-state actors and emerging technological applications.8 As will be discussed below, international disaster relief law faces the dual challenges of being both incoherent and largely non-binding on states. As ­Michael J. Kelly has observed, ‘[t]he international law of disaster relief is not well developed. It exists in unsystematic state practice, partial codification, and best practices guidance documents. Significant gaps remain’.9 This situation has resulted from a high degree of disaster-to-disaster improvisation by states and other emergency responders: Driven today by one disaster, tomorrow by another, the ad hoc incoherence of legal and institutional response mirrors the randomness of the catastrophes humanity encounters. The resulting fragmented ad hoc array of responses leaves many holes in the collective effort and often

6 ‘What is Disaster Risk Reduction?’, unisdr, https://www.unisdr.org/who-we-are/what -is-drr. 7 Peel, Jacqueline, and David Fisher, eds. The Role of International Environmental Law in Disaster Risk Reduction. Brill, 2016. 8 See, e.g., discussion of ‘disaster relief 2.0’, entailing public-private partnerships and increasing utilization of information and communications technology in Ali, Shahla F., ‘Crowd-Sourced Governance in a Post-Disaster Context’, 64 International and Comparative Law Quarterly (2015) 211–226. 9 Michael J. Kelly ‘Introduction’. In The International Law of Disaster Relief, edited by David D. Caron, Michael J. Kelly, and Anastasia Telesetskty, 1–3. Cambridge: Cambridge University Press, 2014, p. 1.

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leads assistance amidst an emergency to be as likely a matter of luck as of planning.10 Among states, there is no consensus on a general right to receive humanitarian assistance. There has been broad resistance to extending the ‘Responsibility to Protect’ (R2P) concept to apply to disaster situations. The challenge, then, is to bring coherence to the law and regulation of ­disaster relief. There is an opportunity for oceans law and cooperation to make a significant contribution to this effort. This opportunity arises for both ­operational and legal reasons. On the operational side, the seas are an important passageway for the transit of emergency relief and ships (including and especially naval forces) are important contributors to delivering emergency relief ashore. On the legal side, oceans law, in particular unclos, is a wellelaborated and well-observed body of law of direct relevance to international disaster relief law, which otherwise lacks a grounding in binding law in many important respects. 3

The Role of Maritime Access and Services in Disaster Relief

There is no universally accepted definition of what constitutes a disaster in international law. According to the Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, published by the International Federation of Red Cross and Red Crescent Societies in 2013, ‘“[d]isaster” ... means a serious disruption of the functioning of society, which poses a significant, widespread threat to human life, health, property or the environment, whether arising from accident, nature, or human activity, whether developing suddenly or as the result of long-term processes, but excluding armed conflict’.11 The International Law Commission’s 2016 Draft ­Articles on the Protection of Persons in the Event of Disasters define disaster as ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’.12 10 11 12

David D. Caron ‘Preface’. In The International Law of Disaster Relief, edited by David D. Caron, Michael J. Kelly, and Anastasia Telesetskty, xx – xix. Cambridge: Cambridge University Press, 2014, xx. Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, Art. 3. ilc Draft Articles, Art. 3(a).

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In recent years, disasters have taken a heavy and rising toll, measured both in human lives and economic loss. In the decade to 2015, over 700,000 people were killed, over 1.4 million people were injured, and some 23 million people were rendered homeless due to disasters, with total economic losses exceeding $1.3 trillion.13 In a possible sign of both their intensification and uneven distribution, twenty per cent of disasters – so-called ‘mega-disasters’ such as Hurricane Katrina – accounted for eighty per cent of all damages due to disasters.14 Many of these disasters came from the sea or otherwise impacted coastal regions and communities. It should therefore be no surprise that maritime access and maritime services were crucial contributors to the response to many of these disasters, particularly in the initial stages following impact. Instances of military involvement in disaster relief operations include the 1991 cyclone in Bangladesh, Hurricane Mitch in Central America in 1998, Hurricane Katrina in 2005 and the ­October 2005 earthquake in Pakistan. In the Philippines alone, the United States has responded to over forty disasters since 1992.15 The particular value of naval services to disaster response has been summarized by Rear Admiral Michael Smith as ‘mobility, adaptability, scalability and interoperability’.16 Navies possess the ability to use ocean approaches as ‘maneuver space’, allowing combat and logistics ships to serve as platforms for relief supplies and personnel. M ­ arines and other first responders can be deployed to clear supply routes, while helicopters launched from ships can airlift disaster victims.17 The importance of maritime access and services to disaster response was demonstrated in the aftermath of the 2004 Indian Ocean tsunami. On 26 December 2004, a magnitude 9.1 underwater earthquake struck off the coast of Sumatra, Indonesia. The resulting tsunami visited devastation on Indian Ocean coastal states, claiming in excess of 230,000 lives. The loss of life was most concentrated in Indonesia, where some 170,000 people were killed, most 13 14 15 16 17

Sendai Framework [4]. Daniel A. Farber. ‘International Law and the Disaster Cycle’. In The International Law of Disaster Relief, edited by David D. Caron, Michael J. Kelly, and Anastasia Telesetsky, 7–20. Cambridge: Cambridge University Press, 2014, 8. Travis J. Tritten. ‘When Disaster Strikes, US Military Assets Often Key to Relief Efforts’. Stars and Stripes, November 16, 2013. http://www.stripes.com/news/pacific/when-disaster -strikes-us-military-assets-often-key-to-relief-efforts-1.253245#.WMHeRxicbeQ. Michael Smith. ‘Humanitarian Assistance, Disaster Response Missions Strengthen Navy’. Navy Live, June 12, 2013. http://navylive.dodlive.mil/2013/06/12/humanitarian-assistance -disaster-response-missions-strengthen-navy/. Ibid.

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of them in Aceh province at the northern end of Sumatra, near the earthquake’s epicentre. In Aceh alone, the tsunami was estimated to have resulted in almost four hundred thousand internally displaced persons – some ten per cent of the population.18 Disaster preparedness in Aceh was severely hindered by a long-running and active armed struggle between the Indonesian government and Acehnese separatists. The day following the tsunami, Indonesia ‘requested international assistance and permitted foreign military teams to begin search and rescue operations’.19 The international response to the tragedy in Indonesia began with the arrival of the uss Abraham Lincoln, a Nimitz-class aircraft carrier, off the coast of Aceh within a week of the tsunami. Six helicopters from the Lincoln were used to ferry food, water and medical supplies to the provincial capital of Banda Aceh, from where they were distributed to other areas affected by the tsunami.20 The Lincoln was the first of over 25 US ships which participated in Operation Unified Assistance in Indonesia, Thailand and other affected locations.21 In addition to providing food, water, medical assistance and supplies, these forces provided engineering support and hydrographic services and removed debris.22 The response to the Indian Ocean tsunami was the US Navy’s largest ever humanitarian assistance/disaster relief operation.23 In providing assistance, the US Navy was joined by navies from regional countries such as Australia, in addition to the navies and coastguards of ­nations directly affected by the tsunami. The phenomenon of assistance provided by maritime forces should not be seen as wholly North-to-South or West-to-East. Rather, navies from regional developing countries were also important contributors to the multinational effort. For example, the Indian 18 19 20 21 22

23

who Recommendations for Mental Health in Aceh, (2005), p. 3, http://cimh.unimelb.edu .au/__data/assets/pdf_file/0006/33945/WHO_Recommendations_for_MH_in_Aceh.pdf. Shahla F. Ali, Governing Disasters: Engaging Local Populations in Humanitarian Relief. Cambridge: Cambridge University Press, 2016, 79. Patrick Dille. ‘U.S. 7th Fleet First to Provide Naval Support to Aceh Province’. Navy News Service, January 1, 2005. http://www.navy.mil/submit/display.asp?story_id=16477. ‘Waves of Hope: The U.S. Navy’s Response to the Tsunami in Northern Indonesia’. Naval War College Newport Papers, February 2007. DoN, 2010, p. 45 cited at Greenfield, Cullen M., and Cameron A. Ingram. ‘An Analysis of U.S. Navy Humanitarian Assistance and Disaster Relief Operations’. Naval Postgraduate School Aquisition Research Sponsored Report Series, June 1, 2011. http://dtic.mil/dtic/tr/ fulltext/u2/a545858.pdf. Cullen M. Greenfield, and Cameron A. Ingram. ‘An Analysis of U.S. Navy Humanitarian Assistance and Disaster Relief Operations’. Naval Postgraduate School Aquisition Research Sponsored Report Series, June 1, 2011. http://dtic.mil/dtic/tr/fulltext/u2/a545858.pdf.

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Navy deployed 32 naval ships, seven aircraft and 20 helicopters to assist in Sri Lanka, M ­ aldives and Indonesia as well as along its own coast.24 As well as the immediate benefits of relief work, the participation of regional forces in ­disaster response in neighboring countries can have beneficial effects concerning interoperability, confidence-building and people-to-people diplomacy. As ­Indian Navy Commodore G. Prakash commented of his frigate’s relief efforts in Sri Lanka: ‘You finally feel like you’re burning diesel for a cause’.25 If the case of the Indian Ocean tsunami illustrates how vital maritime ­access and forces can be to the provision of initial disaster relief, the case of Cyclone Nargis serves as a warning that such access cannot be taken for granted. Cyclone Nargis struck Myanmar (at the time, also known as Burma) on 8 May 2008. It is estimated that over 138,000 people were killed as a result of the cyclone. The military junta, which governed Myanmar at that time, refused to allow foreign personnel to enter the country to provide emergency relief. The Myamnar government instead called for donations which it undertook to distribute, and on 19 May the regime declared that the that ‘the strings attached to the relief supplies carried by warships and military helicopters are not acceptable to the Myanmar people’.26 As the Myanmar authorities clearly lacked the resources to respond adequately to the catastrophe, the junta’s decision to deny access to foreign personnel undoubtedly compounded the human suffering originally wrought by nature. The then-prime minister of Australia, Kevin Rudd, stated that the ­‘immediate practical need now is to bash the doors down in Burma so that people in critical need can get that assistance now’.27 Nevertheless, while ­diplomacy within the Association of South-East Asian Nations (asean, of which M ­ yanmar is a member) resulted in asean aid being allowed into Myanmar on 19 May, the junta continued to deny access to Western forces. When 24 25 26

27

Vijay Sakhuja. ‘Indian Naval Diplomacy: Post Tsunami’. Institute of Peace and Conflict Studies, February 8, 2005. http://www.ipcs.org/article/navy/indian-naval-diplomacy-post -tsunami-1640.html. John Lancaster. ‘India Takes Major Role In Sri Lanka Relief Effort’. Washington Post. January 20, 2005. http://www.washingtonpost.com/wp-dyn/articles/A22194-2005Jan19 ­ .html. The situation is recounted in detail in Renshaw, Catherine Shanahan. ‘Disasters, Despots, and Gun-Boat Diplomacy’. In The International Law of Disaster Relief, edited by David D. Caron, Michael J. Kelly, and Anastasia Telesetskty, 164–89. Cambridge: Cambridge University Press, 2014. Jonathan Pearlman. ‘Rudd Says Donors Must Bash in Doors’. The Sydney Morning H ­ erald, May 10, 2008. http://www.smh.com.au/news/world/rudd-says-donors-must-bash -in-doors/2008/05/09/1210131275004.html.

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Nargis made landfall, US naval forces present in neighboring Thailand for ­exercises had been sent to the coast of Myanmar to provide assistance, joined by ships from the French and British navies. All these were turned away. In early June, the uss Essex, a Wasp-class amphibious assault ship, departed the coast of Myanmar with a full payload of relief supplies after fifteen requests for permission to dock had been rejected.28 4

The State of Law and Regulation Concerning International Disaster Relief

International disaster relief law is primarily embodied in instruments that are (as yet) non-binding on states, including guidelines and model acts. This section will give a broad overview of these instruments, before examining each of them as they relate to maritime access and services for disaster relief. In general, these instruments can be seen to elaborate on the Guiding Principles on ‘Strengthening of the coordination of humanitarian emergency assistance of the United Nations’, which were adopted by the UN General Assembly in 1991.29 The Guiding Principles state that while ‘[e]ach State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory’, ‘[i]nternational cooperation to address emergency situations and to strengthen the response capacity of affected countries is … of great importance’, given that many emergencies will be beyond the capacity of the affected State to cope with.30 The Guiding Principles call upon affected States to ‘facilitate the work’ of organizations engaged in humanitarian assistance and on transit States to ‘participate closely with the affected countries in international efforts, with a view to facilitating, to the extent possible, the transit of humanitarian assistance’.31 Supplementing the Guiding Principles, a number of instruments treat particular aspects of disaster relief cooperation. The Guidelines on the Use of

28 29 30 31

Catherine Shanahan Renshaw. ‘Disasters, Despots, and Gun-Boat Diplomacy’. In The International Law of Disaster Relief, edited by David D. Caron, Michael J. Kelly, and Anastasia Telesetskty, 164–89. Cambridge: Cambridge University Press, 2014, 169. UN General Assembly, Resolution 46/182, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, A/RES/46/182, 19 December 1991, Annex. Ibid., para. 4–5. Ibid., para. 6–7.

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Foreign Military and Civil Defence Assets in Disaster Relief (Oslo Guidelines) were released by the ocha in 1994 and substantially updated in 2007.32 They are non-binding and are primarily intended for use by UN humanitarian agencies and their implementing and operational partners. The Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (idrl Guidelines)33 were adopted by the State parties to the Geneva Conventions and the International Red Cross Red Crescent Movement in 2007. The idrl Guidelines constitute non-binding recommendations to governments on laws and planning to facilitate international disaster relief. Their use has been encouraged by several UN General Assembly resolutions.34 Finally, the Model Act for the Facilitation and Regulation of International Disaster Assistance (2011)35 was prepared as a collaboration between the International Federation of Red Cross and Red Crescent Societies, the United Nations Office of the Coordination of Humanitarian Assistance and the Inter-Parliamentary Union. It is intended to be used as a supplement to the idrl Guidelines. These instruments concerning disaster relief were complemented by a series of strategies focused on disaster prevention and resilience. In 1994, the Yokohama Strategy and Plan of Action for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation was agreed by the World Conference on Natural Disaster Reduction, establishing a complementary focus on disaster prevention.36 The Yokohoma document was superseded by the Hyogo Framework for Action: Building the Resilience of Nations and Communities to Disasters, which was adopted in January 2005 during the initial tsunami response and set priorities for disaster preparedness for the decade to 32 33

34 35 36

Oslo Guidelines: Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief, Revision 1.1., Office for the Coordination of Humanitarian Affairs, United Nations, November 2007. idrl Guidelines: Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, in Introduction to the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery a­ ssistance, International Federation of Red Cross and Red Crescent Societies, Geneva, 2011, pp. 13–22. Res. 63/139, 63/141 and 63/137, all adopted in 2008. Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, Pilot Version, International Federation of Red Cross and Red ­Crescent Societies, Geneva, November 2011. Yokohama Strategy and Plan of Action for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation, World Conference on Natural Disaster Reduction, Yokohama, 23–27 May 1994.

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2015.37 As these developments indicate, while there remain ‘few means whereby a norm of assistance or solidarity may be enforced’,38 there is an increasing cumulative weight of instruments in favour of granting access to international assistance where it is necessary. The Oslo Guidelines hold particular relevance for military assistance. The Oslo Guidelines define military and civilian defence assets (mcda) as comprising ‘relief personnel, equipment, supplies and services provided by foreign military and civil defence organizations for [international disaster relief assistance]’.39 The Guidelines state that mcda ‘should be seen as a tool complementing existing relief mechanisms in order to provide specific support to specific requirements, in response to the acknowledged “humanitarian gap” between the disaster needs that the relief community is being asked to satisfy and the resources available to meet them’.40 Therefore, the Guidelines address both States affected by disasters and transit States, the latter defined as ‘those States whose national borders, territorial waters, and airspace are crossed by foreign mcda moving to and from and conducting operations in the Affected State’.41 The Guidelines call on affected States to ‘advise the necessary ministries and local governance structures of the impending arrival of foreign mcda and facilitate their deployment by ensuring’, inter alia, ‘[o]verflight and landing permission’, ‘[e]xemption from customs duties’ and ‘[f]ree access to disaster zones’.42 Concurrently, the Guidelines require that transit States, ‘especially those bordering the Affected State, will facilitate the movement of mcda requested by the Affected State in the same manner that they facilitate the movement of relief goods and personnel’.43 The idrl Guidelines provide that, ‘[i]f an affected State determines that a disaster situation exceeds national coping capacities, it should seek international and/or regional assistance to address the needs of affected persons’.44 Concerning transport, the Guidelines further provide that ‘[o]riginating, ­transit and affected States should grant, without undue delay, permission for 37 38 39 40 41 42 43 44

Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, World Conference on Disaster Reduction, A/CONF.206/6, 22 January 2005. David D. Caron and Charles Leben. (2001). The International Aspects of Natural and Industrial Catastrophes. Hague: The Hague Academy of International Law: Martinus ­Nijhoff Publishers, 15. Oslo Guidelines, para. 3. Ibid., para. 24. Ibid., para. 63. Ibid., para. 60. Ibid., para. 63. idrl Guidelines, Guideline 3, para. 2.

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the speedy passage of land, marine and air vehicles operated by an assisting State or eligible assisting humanitarian organization or on its behalf, for the purpose of transporting disaster relief or initial recovery assistance and, ideally, waive applicable fees’.45 Similarly concerning facilitation of transport, Article 45 of the Model Act for the Facilitation and Regulation of International Disaster Assistance relevantly provides: Ground, air and water transport vehicles operated by or on behalf of Eligible Actors46 to transport International and Locally Engaged Personnel, Goods, or Equipment for the purposes of Disaster Relief or Initial Recovery Assistance shall be: a. accorded priority treatment for passage … b. exempt from any applicable taxes, levies, duties, fees or charges normally imposed by governmental entities of [country name] … and c. exempt from any prohibitions, limitations or restrictions in respect of their arrival, … stay and departure, other than those necessary to guarantee ­national security, public safety or public health. Importantly, Article 66 of the Model Act applies this provision, ‘mutatis mutandis, to the ground, air and water vehicles of Eligible Actors in transit through the territorial lands, waters or airspace of [country name] to provide Disaster Relief or Initial Recovery Assistance to an affected country’. The Model Act further provides that ‘[i]n the event a Disaster occurs in another country for which International Disaster Assistance is required the [relevant customs, immigration, and transport authorities] shall facilitate the speedy transit or transhipment across national territory of International ­Disaster Assistance by Assisting International Actors, including International Personnel, Goods, Equipment and Transport, in order to reach the affected country’.47

45 46

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idrl Guidelines, Guideline 19. Article 3 of the Model Act defines ‘Eligible Actor’ to mean ‘any Assisting Actor that has been determined to be eligible to receive Legal Facilities, in accordance with Chapters v and vi of this Act’. ‘Assisting States’, ‘relevant intergovernmental organizations, including United Nations and regional organizations’ and ‘the [country name Red Cross/Red Crescent] Society and Foreign Components of the International Red Cross and Red Crescent Movement’ are deemed to be Eligible Actors without needing to make an application (Article 21). Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, art. 61.

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Oceans Law and Cooperation for International Disaster Relief

5.1 International Law These soft law instruments favor the granting of access to international disaster relief actors. In doing so, they are consistent with the International Court of Justice’s pronouncement that humanitarian aid given indiscriminately and for humanitarian purposes only does not constitute an ‘intervention in the internal affairs’ of the affected State.48 Nevertheless, the international instruments outlined in the previous section cannot be considered binding on States. It is therefore useful to consider how the observance of non-binding disaster relief law may be buttressed by state obligations under distinct areas of international law which have relevance to the circumstances of international disaster relief. Oceans law is particularly relevant to the facilitation of marine transit for disaster relief. The two notable conventions here are the Convention on Facilitation of International Maritime Traffic and the United Nations Convention on the Law of the Sea (los Convention losc). The Convention on Facilitation of International Maritime Traffic (fal Convention) was adopted in 1965 and entered force in 1967. It was adopted under the auspices of the International Maritime Organization (imo) and was last amended in 2005. There are 117 Contracting Governments to the Convention, collectively accounting for some 93.18 % of the world’s merchant fleet by tonnage.49 The purpose of the fal Convention is to ‘facilitate maritime traffic by simplifying and reducing to a minimum the formalities, documentary requirements and procedures on the arrival, stay and departure of ships engaged in international voyages’.50 The Convention’s annex itemizes standards and r­ ecommended practices concerning these matters, with ‘standards’ defined as ‘those measures the uniform application of which by Contracting Governments in accordance with the Convention is necessary and practicable in order to facilitate international maritime traffic’.51 Standard 7.8 relevantly ­provides that ‘[p]ublic authorities shall facilitate the arrival and departure of 48

49 50 51

‘An essential feature of truly humanitarian aid is that it is given “without discrimination” of any kind. In the view of the Court, if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal a airs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely “to prevent and alleviate human suffering”, and “to protect life and health and to ensure respect for the human being”; it must also, and above all, be given without discrimination to all in need’. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] icj Rep 14 paragraph 243. fal Convention, imo, http://www.imo.org/en/OurWork/Facilitation/ConventionsCodes Guidelines/Pages/Default.aspx. fal Convention, preamble. Ibid., Art. 6(a).

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ships engaged in ... disaster relief work’.52 Standard 7.9 additionally provides that ‘[p]ublic authorities shall, to the greatest extent possible, facilitate the entry and clearance of persons, cargo, material and equipment required to deal with situations described in Standard 7.8’. More broadly, the los Convention losc is pertinent to international disaster relief operations which transit maritime areas. As is well known, the losc provides for the respective rights and duties of coastal States and the international community in different zones of the ocean space. Within the territorial sea, extending up to twelve nautical miles (nm) into the sea adjacent to the coastal State, the coastal State enjoys sovereignty.53 In the contiguous zone, extending 24 nm beyond the baseline from which the territorial sea is calculated, the coastal State may enforce customs, fiscal, immigration and sanitary laws.54 The existence of the contiguous zone, and the sovereign rights of law enforcement which accrue to the coastal State within it, highlights the economic nature of the exclusive economic zone (eez), which further extends seaward up to 200 nm from the baseline.55 As James Kraska has noted, the ‘contiguous zone, in effect, serves as recognition of the limits on eez authority’ of the coastal State.56 The losc is the product of a long-running search for c­ ompromise between the interests of coastal States and seafaring States. Myres S. M ­ cDougal and William T. Burke captured the interests to be balanced in 1962: ‘The net total of the inclusive uses available for sharing among all states is directly d­ ependent ... upon restriction of the exclusive claims to the minimum reasonably necessary to the protection of common interest’.57 The losc which emerged following the decade of negotiations to 1982 has been ­described as ‘a carefully negotiated package of balances between the rights and interests of the coastal State … and the rights and interests of the international community’.58 This ‘package of balances’ is embodied in the eez. 52 53 54 55 56

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fal Convention, Annex, Standard 7.8. losc, Art. 2–3. Ibid., Art. 33. Ibid., Art. 57. States which successfully negotiated for the inclusion of the contiguous zone in the losc did so partly out of concern that the absence of such a zone could lead to the encroachment of coastal state customs enforcement into the eez. Kraska, James. Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics. Oxford: ­Oxford University Press, 2011, 143. Myres S. McDougal, and William T. Burke. The Public Order of the Oceans: A Contemporary International Law of the Sea. New Haven: New Haven press, 1985, 52. Tommy Koh. ‘Setting the Context: A Globalized World’. In Freedom of Navigation and Globalization, edited by Myron H. Nordquist, John Norton Moore, Robert C. Beckman, and Ronán Long. Leiden: Brill Nijhoff, 2015, 8.

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Within the eez, the coastal State has rights including ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources’ and with regard to other economic activities, and jurisdiction over ‘artificial islands, installations and structures’, marine scientific research and environmental protection.59 However, in exercising such rights and performing such duties, ‘the coastal State shall have due regard to the rights and duties of other States’.60 Article 58 of the losc relevantly provides that, in the eez, all States ‘enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight … and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships [and] aircraft’. Article 87, thereby applied to the eez, enunciates the freedom of the high seas: ‘The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and landlocked States: (a) freedom of navigation; (b) freedom of overflight; [inter alia]’. These freedoms are qualified by the Article 88 reservation of the high seas for ‘peaceful purposes’.61 The question of military activities in the eez, and the status of the eez generally, were matters of great controversy during the Third UN Conference on the Law of the Sea (unclos iii), which resulted in the losc. ­Ambassador Tommy T.B. Koh, who had served as President of unclos iii, summarized the outcome soon after the conclusion of talks: The question of military activities in the [eez] is a very difficult one ... The solution in the Convention text is very complicated. Nowhere is it clearly stated whether a third state may or may not conduct military activities in the [eez] of a coastal state. But, it was the general u ­ nderstanding that the text we negotiated and agreed upon would permit such activities to be conducted.62 However, as was foreseen, the ‘reluctance’ of unclos iii to explicitly address military activity in the eez has left ground for disagreement among States 59 60 61 62

losc, Art. 56(1). Ibid., Art. 56(2). Which provision is applied to the eez via Article 58(2). Consensus and Confrontation: The United States and the Law of the Sea Convention, A Workshop from the Law of the Sea Institute, ed. Jon M. Van Dyke. Honolulu: Law of the Sea Institute, 1985, 303–304.

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and scholars.63 The orthodox position commonly adopted by maritime States is that the inclusion of ‘other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships [and] aircraft’ in Article 58(1) ‘implied the legality of naval maneuvers in a foreign eez’, there being no presumption in the Convention favouring coastal rights over high seas freedoms.64 It has similarly been argued that ‘[f]reedom of the high seas includes … use of the ocean airspace for military exercises, aerial reconnaissance, and all other activities of civil and military aircraft if due regard is paid to the rights and interests of third states’.65 A number of states have challenged these arguments, including through assertions of ‘creeping jurisdiction’ over the eez.66 For example, Iran has introduced regulation which purports that ‘[f]oreign military activities and ­practices, collection of information and any other activity inconsistent with the rights and interests of the Islamic Republic of Iran in the exclusive economic zone and the continental shelf are prohibited’.67 In the Asia-Pacific, recent years have seen various incidents of foreign military vessels being challenged in the eez, such as the 2009 harassment of the usns Impeccable by Chinese government and fishing vessels as the Impeccable was conducting survey work 120 km off the Chinese coast.68 Scholars have addressed these competing constructions in various ways, including through distinguishing between movement rights and operational rights.69 Keyuan Zou has maintained that the absence of explicit provision in the Convention makes military use

63 64 65 66

67 68 69

Boleslaw Adam Boczek, ‘Peacetime Military Activities in the Exclusive Economic Zone of Third Countries’, odil, Vol. 19, 1988, 452. Ibid., 450. Kay Hailbronner, ‘Freedom of the Air and the Convention on the Law of the Sea’, 77 ajil (1983), p. 503. James Kraska. Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics. Oxford: Oxford University Press, 2011, 23. A summary of states which purport to limit military activities in their eez is at Kraska, James. Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics. Oxford: Oxford University Press, 2011, 303. The regulatory claims made are quite diverse, ranging from Iran’s prohibition on foreign military ‘activities and practices’ to Bangladesh’s more typical requirement that the coastal state grant consent prior to any military exercises or operations in the eez. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff, 1996), 409–413. James Kraska. Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics. Oxford: Oxford University Press, 2011, 322. Charles E. Pirtle, ‘Military Uses of Ocean Space and the Law of the Sea in the New ­Millennium’, odil, Vol. 31, 2000, p. 8.

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in the eez a ‘gray area which leads to different interpretations’.70 To address this uncertainty, Zou proposes that ‘what we should look into is not the form of a certain activity, but its nature. If a military activity is threatening in nature and with clear bad intention and/or in a hostile manner, it should be banned in the eez. Otherwise, it can be allowed under certain conditions laid down by the coastal state’.71 However, Zou nominates peacekeeping as an example of a military activity which, far from being threatening, is actually ‘indispensable to maintain peace and good order’.72 Disaster relief, like many maritime missions, will often rely on the ability to ‘conduct sea basing and operational maneuver from the sea throughout foreign eezs’.73 International disaster relief, if conducted in good faith, will generally be self-evidently peaceful in purpose, thereby clearing the Article 88 hurdle. Moreover, even if one accepts Zou’s position, which contemplates greater restraints on military use, disaster relief is arguably a less ‘threatening’ activity even than peacekeeping. 5.2 Regional Frameworks The permissive and facilitative framework provided by international law for maritime services to contribute to international disaster relief is buttressed through a number of multilateral and bilateral agreements and exercises in the East Asia region. The asean Agreement on Disaster Management and Emergency Response was adopted in 2005 and entered force in 2009.74 The Agreement commits asean members to, ‘as appropriate’, prepare Standard Operating Procedures for regional co-operation and national action, including ‘regional standby arrangements for disaster relief and emergency response’, ‘utilisation of military and civilian personnel, transportation and communication equipment, facilities, goods and services and to facilitate their transboundary movement’, and ‘co-ordination of joint disaster relief and emergency 70 71 72 73 74

Keyuan Zou. Law of the Sea in East Asia: Issues and Prospects. London: Routledge, 2005, 17–18. Ibid., 19. Ibid. James Kraska. Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics. Oxford: Oxford University Press, 2011, 211. The drafting of the document was ‘dramatically accelerate[d]’ following the Indian Ocean Tsunami, and entry into force was also hastened following Cyclone Nargis. Lacey-Hall, Oliver. ‘Regional Frameworks, Activities and Cooperation on Humanitarian Assistance / Disaster Relief (ha/dr)’. ocha Regional Office for Asia and the Pacific, ­February 12, 2015. https://docs.unocha.org/sites/dms/ROAP/Statements%20and%20Speeches/20150204% 20-%20ARF%20Speech%20FINAL.pdf.

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response operations’.75 The Agreement provides that ‘[a]ssistance can only be deployed at the request, and with the consent, of the Requesting Party, or, when offered by another Party or Parties, with the consent of the Receiving Party’.76 A variety of other regional forums also address international disaster relief. These include the apec Emergency Preparedness Working Group and Senior Disaster Management Officials,77 the asean Regional Forum Inter Sessional Meetings on Disaster Relief78 and the Northeast Asia Peace and Cooperation Initiative.79 The Asia-Pacific Conference on Military Assistance to Disaster Relief Operations (apc- madro) was established in response to the Indian Ocean Tsunami and met annually for five years to develop guidelines for the deployment of foreign military assistance for disaster relief. The resulting document, the AsiaPacific Regional Guidelines For The Use Of Foreign Military Assets In Natural Disaster Response Operations, sets out guiding principles and concepts for a variety of relevant actors, such as affected States, assisting States and the UN.80 The Guidelines explicitly complement the Oslo Guidelines discussed above and are ‘voluntary in nature and not binding on Member States’.81 The Guidelines encouraged pre-disaster preparedness, in pursuit of which ‘Member States will take necessary steps to prepare for disasters, e.g. procedures to offer and/or receive military assets, exercises, development of Standard Operating Procedures (sops)’, etc.82 Requests for ‘foreign military support should be made when needs exceed the Affected State’s capabilities and no other civilian capacity is available’.83 Affected States should ‘facilitate operations conducted by assisting militaries by simplifying, as appropriate, the customs and administrative procedures related to entry, transit, stay and exit as well as utilization of airspace, use of communications equipment, certification of specialist personnel as required, etc’, while Transit States should ‘facilitate 75 76 77 78 79 80

81 82 83

asean Agreement on Disaster Management and Emergency Response, 2005 (entered force 2009), Art. 8. Ibid., Art. 11. http://www.apec-epwg.org/. http://aseanregionalforum.asean.org/library/arf-chairmans-statements-and-reports .html. http://mofa.go.kr/ENG/North_Asia/res/eng.pdf. The Asia-Pacific Conferences on Military Assistance to Disaster Relief Operations ­(apc-madro), Asia-Pacific Regional Guidelines For The Use Of Foreign Military Assets In Natural Disaster Response Operations, Version 8.01 – 14/01/14, United Nations Office for the Coordination of Humanitarian Affairs. Ibid., para. 4. Ibid., para. 14. Ibid., para. 13.

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the movement of disaster relief equipment, supplies and personnel from Originating and Assisting States to the Affected State’.84 The Pacific Partnership is an annual exercise conducted by the U.S. Navy and regional navies which also began in response to the 2004 Indian Ocean Tsunami. The exercise aims to build disaster readiness through humanitarian assistance and disaster relief drills and by enhancing partnerships between regional services and subject matter experts. The 2017 Pacific Partnership was hosted by Sri Lanka, Malaysia and Vietnam, with Sri Lanka’s participation expanding the mission to South Asian waters for the first time.85 Further relevant frameworks are established at the trilateral and bilateral levels. For example, the U.S.-Republic of Korea-Japan Defense Trilateral Talks framework addresses disaster relief under the banner of ‘non-traditional security issues’.86 The 2015 Blueprint for Defence and Security Cooperation ­Between Australia and the Republic of Korea goes into greater detail, identifying as proposed activities ‘joint preparation and training opportunities for … disaster relief exercises and operations’ and ‘unit cooperation and personnel exchange in … disaster relief exercises and operations’.87 6

Current Developments: One Framework, Eighteen Draft Articles and (Perhaps) a Convention

The foregoing sections indicate that there are multiple international instruments, including treaties, which support maritime access for international disaster relief. While State obligations under the los and fal Conventions are decades old, and there is a long line of international disaster relief instruments going back to the 1991 Guiding Principles, the recent adoption of two new instruments has created an opportunity to strengthen practices that f­acilitate 84 85

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Ibid., para. 25, 35. ‘12th Pacific Partnership Mission Prepares to Enhance Cooperation Strengthen Indo-Asia -Pacific Ties’. Navy News Service, March 1, 2017. http://www.public.navy.mil/surfor/ Pages/12th-Pacific-Partnership-Mission-Prepares-to-Enhance-Cooperation-Strengthen |-Indo-Asia-Pacific-Ties-.aspx#.WMRHYRicbeQ. ‘U.S., Republic of Korea, Japan Trilateral Defense Ministers’ Meeting Joint Press Statement’. U.S. Department of Defense, June 4, 2016. https://www.defense.gov/News/ News-Releases/News-Release-View/Article/791223/us-republic-of-korea-japan-trilateral -defense-ministers-meeting-joint-press-sta. Blueprint for Defence and Security Cooperation Between Australia and the Republic of Korea, 11 September 2015, Minister for Defence, Department of D ­ efence, https:// www.minister.defence.gov.au/minister/kevin-andrews/statements/minister-defence -blueprint-defence-and-security-cooperation.

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maritime access and cooperation for disaster relief. These instruments are the Sendai Framework for Disaster Risk Reduction 2015–2030, adopted by the Third UN World Conference on Disaster Risk Reduction and endorsed by the UN General Assembly in 2015,88 and the Draft Articles on the Protection of Persons in the Event of Disasters adopted by the International Law Commission (ilc) in 2016. This section highlights the particular elements of both i­nstruments that bear on maritime access and discusses next steps under both processes. 6.1 Sendai Framework for Disaster Risk Reduction (2015) As part of the UN’s Post-2015 Development Agenda,89 the Sendai Framework sets targets to be achieved by 2030 and succeeds the 2005–2015 Hyogo Framework for Action. Like the Yokohoma and Hyogo documents which preceded it, the Sendai Framework is a voluntary and non-binding agreement. The Sendai Framework sets the expected outcome and goal of ‘[t]he substantial reduction of disaster risk and losses in lives, livelihoods and health and in the economic, physical, social, cultural and environmental assets of persons, businesses, communities and countries’.90 The Framework sets four ‘priorities for action’: 1. Understanding disaster risk; 2. Strengthening disaster risk governance to manage disaster risk; 3. Investing in disaster risk reduction for resilience; and 4. Enhancing disaster preparedness for effective response and to ‘Build Back ­Better’ in recovery, rehabilitation and reconstruction.91 Under each priority area, actions are identified for both ‘[n]ational and local levels’ and ‘[g]lobal and regional levels’. The Sendai Framework’s actions of greatest relevance to maritime access and services are clustered under Priority 4. In Priority 4, the Framework states that the growth of disaster risk, alongside the lessons learned from previous disasters, ‘indicates the need to further strengthen disaster preparedness for response, take action in anticipation of events, integrate disaster risk reduction in response preparedness and ensure that capacities are in place for effective response and recovery at all levels’.92 At the national and local levels, the Framework calls on governments to ­‘review and strengthen, as appropriate, national laws and procedures on international cooperation, based on the Guidelines for the Domestic Facilitation and 88 89 90 91 92

UN General Assembly, Resolution 69/283. Sendai Framework for Disaster Risk Reduction 2015–2030, A/RES/69/283, 23 June 2015. https://sustainabledevelopment.un.org/. Sendai Framework, para. 16. Ibid., para. 20. Ibid., para. 32.

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Regulation of International Disaster Relief and Initial Recovery Assistance’.93 At the global and regional levels, there are a number of actions the implementation of which could strengthen maritime access for international disaster relief: ‘To develop and strengthen, as appropriate, coordinated regional ­approaches and operational mechanisms to prepare for and ensure rapid and effective disaster response in situations that exceed national coping capacities’; ‘To promote the further development and dissemination of instruments, such as standards, codes, operational guides and other guidance i­nstruments, to support coordinated action in disaster preparedness and response and facilitate information sharing on lessons learned and best practices for policy practice and post-disaster reconstruction programmes’; ‘To support regional cooperation to deal with disaster preparedness, including through common exercises and drills’; and ‘To promote regional protocols to facilitate the sharing of response capacities and resources during and after disasters’.94 Notably, these proposed actions entail measures to ensure that both national laws and international frameworks are prepared to facilitate international cooperation. Implementation of the Sendai Framework rests primarily at the national and regional levels, with the support of the un Office for Disaster Risk Reduction (unisdr). In particular, unisdr collaborates in the organization of regional multi-stakeholder platforms which aim to identify regional strategies for Sendai implementation.95 In 2016, as part of this process, the Asian Ministerial Conference on Disaster Risk Reduction adopted the ‘Asia Regional Plan for Implementation of the Sendai Framework for Disaster Risk Reduction 2015–2030’.96 At the global level, ­Sendai ­implementation is reviewed by the biennial Global Platform for Disaster Risk Reduction, held in Mexico in 2017.97 Additionally, 2017 saw the adoption of the United Nations Plan of Action on Disaster Risk Reduction for Resilience, which includes over 45 UN entities and aims to enhance UN System coherence concerning drr.98 93 94 95 96

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Ibid., para. 33(p). Ibid., para. 34(a),(b),(f) and (g). https://www.unisdr.org/we/coordinate/regional-platforms. ‘Asia Regional Plan for Implementation of the Sendai Framework for Disaster Risk Reduction 2015–2030’, 5 November 2016, https://www.amcdrrindia.net/wp-content/uploads/ 2016/11/FINAL-Asia-Regional-Plan-for-implementation-of-Sendai-Framework-05 -November-2016.pdf. http://www.unisdr.org/conferences/2017/globalplatform/en. United Nations Plan of Action on Disaster Risk Reduction for Resilience: Towards a Risk-informed and Integrated Approach to Sustainable Development, United Nations, ­Advance version, January 2017.

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Draft Articles on the Protection of Persons in the Event of Disasters (ilc) (2016) In 2006, the ilc included the ‘Protection of persons in the event of disasters’ in its long-term work program, appointing Eduardo Valencia-Ospina as Special Rapporteur on the topic in the following year.99 In 2016, following eight reports by Valencia-Ospina, the ilc adopted eighteen draft articles.100 The ilc has recommended to the UN General Assembly the ‘elaboration of a convention on the basis of the draft articles’.101 Subsequently, the General Assembly adopted a Resolution inviting comment from governments on the recommendation of a new convention and placing ‘Protection of persons in the event of disasters’ on its provisional agenda for 2018.102 The Draft Articles affirm that the ‘affected State has the primary role in the direction, control, coordination and supervision of … relief assistance’,103 and states that the affected State has a ‘duty to ensure the protection of persons and provision of disaster relief assistance in its territory’.104 Moreover, ‘[t]o the extent that a disaster manifestly exceeds its national response capacity, the affected State has the duty to seek assistance from, as appropriate, other States, the United Nations, and other potential assisting actors’.105 This ‘duty to seek assistance’ is complemented by the injunction that while external assistance requires the consent of an affected State, ‘[c]onsent to external assistance shall not be withheld arbitrarily’.106 Additionally, ‘[t]he affected State shall take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance, in particular107 regarding: (a) relief personnel, in fields such as privileges and immunities, visa and entry requirements,

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The procedural history of the ilc’s work is summarized at http://legal.un.org/ilc/ summaries/6_3.shtml. 100 Draft articles on the protection of persons in the event of disasters 2016, Adopted by the International Law Commission at its sixty-eighth session, in 2016, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/71/10). 101 Report of the International Law Commission, Sixty-eighth session (2 May-10 June and 4 July-12 August 2016), General Assembly, A/71/10, para. 46. 102 UN General Assembly, Resolution 71/141. Protection of persons in the event of disasters, A/RES/71/141, 19 December 2016, para. 2–3. 103 ilc Draft Articles, Art. 10(2). 104 Ibid., Art. 10(1). 105 Ibid., Art. 11. 106 Ibid., Art. 13. 107 The ilc commentary notes that this is ‘not an exhaustive list, but rather an illustration of the various areas that may need to be addressed by national law to facilitate prompt and effective assistance’. Report of the International Law Commission, Sixty-eighth session (2 May–10 June and 4 July–12 August 2016), General Assembly, A/71/10, p. 66.

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work permits, and freedom of movement; and (b) equipment and goods, in fields such as customs requirements and tariffs, taxation, transport, and the disposal thereof’.108 The formulation of a duty to ‘seek’ assistance is in part derived from the idrl Guidelines.109 In its commentary on Draft Article 11, the ilc identifies the duty to seek assistance as, in part, a ‘specification’ of the affected State’s duty to ensure protection within its territory.110 The Commission further notes that the phrase ‘[t]o the extent that a disaster manifestly exceeds its national response capacity’ applies to situations’ in which a disaster appears likely to manifestly exceed an affected State’s national response capacity’, thereby encouraging a ‘flexible and proactive approach’ in keeping with the goal of the Draft Articles.111 Concerning the Draft Article 13 prohibition on ‘arbitrarily’ withholding consent to external assistance, the ilc warns that ‘[a]n offer of assistance that is met with refusal might thus under certain conditions constitute a violation of the right to life’ under Article 6 of the International Covenant on Civil and ­Political Rights.112 The term ‘arbitrary’ ‘directs attention to the basis of an ­affected State’s decision to withhold consent’.113 While the question of arbitrariness must be determined ‘case-by-case’, the Commission states as a principle that ‘where an offer of assistance is made in accordance with the draft articles and no alternate sources of assistance are available, there would be a strong inference that a decision to withhold consent is arbitrary’.114 While emerging from separate processes, the Sendai Framework and the Draft Articles are deeply complementary. As unisdr has identified, there is ‘a strong alignment and complementarity as well as a functional relationship 108 ilc Draft Articles, Art. 15(1). On subparagraph (b), the ilc commentary states that ‘[n]ational regulation can also address overflight and landing rights, tools, minimization of documentation required for import and transit of equipment and goods and temporary recognition of foreign registration of vehicles’. Report of the International Law ­Commission, Sixty-eighth session (2 May–10 June and 4 July–12 August 2016), General Assembly, A/71/10, p. 67. 109 Report of the International Law Commission, Sixty-eighth session (2 May–10 June and 4 July–12 August 2016), General Assembly, A/71/10, p. 55. 110 Ibid., p. 53. 111 Emphasis added. Ibid. 112 Ibid., p. 60. On this point, the Commission had regard to General Assembly resolutions 43/131 of 8 December 1988 and 45/100 of 14 December 1990 and the Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, annex. 113 Report of the International Law Commission, Sixty-eighth session (2 May–10 June and 4 July–12 August 2016), General Assembly, A/71/10, p. 61. 114 Ibid., pp. 61–62.

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between the draft articles and the Sendai Framework, in that the former articulated the duty to reduce the risk of disasters and to cooperate, while the latter established the modalities and measures that States needed to adopt to discharge such duty’.115 However, the temporal relationship is just the reverse of this, as States have already taken on the task of implementing the Sendai Framework, whereas the ultimate fate of the Draft Articles must await the General Assembly’s consideration of the ilc’s recommendation to adopt a convention on their basis. It may be hoped that the early experience of Sendai implementation, and any resulting improvements in international cooperation, bolsters States’ willingness to adopt the obligations codified in the Draft Articles. 7 Conclusion The intensification of extreme weather events is heightening disaster risk globally, with the littoral States of the Asia-Pacific in positions of particular vulnerability. As a countervailing force, human organization and preparation, including through the development of law, regulation and protocols for international cooperation, can mitigate these risks. The discussion in the foregoing sections has illustrated that the international architecture on disaster relief is ­characterised by complexity, and is high on normative aspiration but low on binding effect. In this context, legal obligations from different bodies of international law with a bearing on international disaster relief are particularly valuable. Given the importance of maritime access and services to disaster ­relief, oceans law is clearly relevant, and indeed the losc and the fal Convention both promote practices that favor access for international disaster relief. Building on this existing legal and diplomatic material, there is now a particular opportunity to strengthen State practice, along the two tracks of Sendai implementation and the take-up of the Draft Articles on the Protection of Persons in the Event of Disasters. States and non-State actors can help to bring coherence to this area of law and regulation by bringing the relevant provisions of the los and fal Conventions to the attention of the Global and Regional Platforms on drr, as well as by incorporating awareness of oceans law 115 As summarized in the Eighth report on the protection of persons in the event of disasters, by Eduardo Valencia-Ospina, Special Rapporteur, A/CN.4/697, 17 March 2016, para. 26. See also the synergies identified by the ilc at Report of the International Law Commission, Sixty-eighth session (2 May–10 June and 4 July–12 August 2016), General Assembly, A/71/10, p. 20. unisdr provided ‘legal and policy advice’ to the ilc in the course of its work on this topic. unisdr Annual Report, 2016, United Nations, 2017, p. 13.

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in Sendai implementation at the national level. Simultaneously, State and nonState actors active in unclos processes have the opportunity, in the context of the Sendai Framework and the broader Sustainable Development Agenda, to emphasize that maintaining the freedoms of the eez is an important facilitator of international disaster relief. Oceans law and the international law of disaster relief are largely elaborated by separate epistemic communities. When it comes to maritime access for disaster relief, however, there is a compelling case for working together.

Chapter 12

Rights and Obligations of States in Undelimited Maritime Areas: The Case of the Eastern Mediterranean Sea Nicholas A. Ioannides 1 Introduction As illustrated in state practice, what compels states to conclude maritime ­delimitation agreements is their desire to avail themselves of the benefits accruing from offshore natural resources, especially hydrocarbons. Nevertheless, maritime delimitation is not an easy task and large portions of marine space remain undelimited, causing friction. Therefore, the 1982 UN Law of the Sea Convention (‘losc’ or ‘the Convention’) imposes certain obligations on states with a view to averting tension in areas where two or more states’ maritime claims overlap. Over the last two decades, offshore hydrocarbon discoveries have triggered intense maritime activity in the Eastern Mediterranean Sea (‘East Med’). Despite the fact that eez delimitation agreements have been signed between Egypt and Cyprus (2003), Lebanon and Cyprus (2007) and ­Israel and Cyprus (2010),1 long-standing enmity among certain regional states and conflicting maritime claims have curtailed the conclusion of additional delimitation treaties; as a result, a significant amount of sea waters in the East Med has yet to be delimited. Particularly, there are two disputes in the region, namely one between Greece and Cyprus on the one hand and Turkey on the other as well as a dispute between Lebanon and Israel. This chapter examines the pertinent international law framework with respect to undelimited maritime areas and how these rules apply in the case of the East Med.

1 Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone (signed 17 February 2003, entered into force 07 March 2004) 2488 unts 3; Agreement between the Government of the Republic of Cyprus and the Government of the Republic of Lebanon on the Delimitation of the Exclusive Economic Zone (17 January 2007) (pending ratification by Lebanon); Agreement between the Government of the Republic of Cyprus and the Government of the State of Israel on the Delimitation of the Exclusive Economic Zone (signed 17 December 2010, entered into force 25 February 2011) 2740 unts 55.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352926_014

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Oil and Gas Activities in Undelimited Maritime Areas

According to certain scholars ‘…“undelimited” maritime areas are the areas where the continental shelves or eezs of States overlap or may potentially overlap, and no final delimitation is in place (whether by agreement or judicial award).’2 It has also been argued that in order to avoid describing a large maritime area as ‘disputed’ based on excessive claims, which could result in stagnation of activities in these areas, solely states’ maritime entitlements should be taken into account, namely claims made in good faith within the purview of international law.3 Additionally, in designating the relevant maritime area in delimitation cases the International Court of Justice (‘icj’) has noted: ‘[t]he relevant area comprises that part of the maritime space in which the ­potential entitlements of the parties overlap.’4 This position is in line with the general ­obligation of good faith under international law enshrined in the losc which obliges parties not to make excessive claims.5 Having said that, the term ‘undelimited’ is preferred over the term ‘disputed’ as it is deemed neutral and objective. Quite often, maritime areas rich in hydrocarbons have been an ‘apple of discord’ among neighbouring states seeking to make the most of the ­natural ­resources found in the seabed and subsoil of the waters adjacent to their coasts. It goes without saying that definitive delimitation of the maritime space allocated to each littoral state is necessary for a state to proceed to offshore hydrocarbon activities. On this matter, Leanza notes: [i]n the absence of total delimitation, it seems that no state has the right to the… resources or to grant concessions for their exploration in the ­areas still disputed and subject to claims by adjacent or opposite states… Delimitation of the continental shelf can be determined only through agreement of the states involved, and until such agreements have been 2 biicl, Report on the Obligations of States under Articles 74(3) and 83(3) of unclos in ­respect of Undelimited Maritime Areas (2016) pp. 1. 3 Davenport T, ‘The Exploration and Exploitation of Hydrocarbon Resources in Areas of Overlapping Claims’ in Robert Beckman et al (eds), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (Edward Elgar 2013) 106. 4 Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] icj Rep 624, para 159 (emphasis added). 5 United Nations Convention on the Law of the Sea (signed 10 December 1982, entered into force 16 November 1994) 1833 unts 3, art 300.

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entered into, none of the coastal states can claim exclusive use of the disputed area.6 Until such delimitation agreement is struck, the losc sets out certain obligations for the interested parties: 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 the transitional period, not to jeopardise or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.7 These obligations appertain even when no negotiations for a delimitation agreement have commenced.8 Nonetheless, although there is an obligation to ‘make every effort to enter into provisional arrangements,’ this is an obligation of conduct and not of result; ergo, there is no duty to agree on a provisional arrangement.9 In addition, the final delimitation could very well ­disregard 6 Leanza U, ‘The Delimitation of the Continental Shelf of the Mediterranean Sea’ (1993) 8(3) ijmcl 373, 394. 7 losc (n 5) arts 74(3) and 83(3) (emphasis added); according to Lagoni, the deliberations during unclos iii reveal that para 3 of Articles 74 and 83 losc does not represent a codification of international law. Lagoni R, ‘Interim Measures Pending Maritime Delimitation Agreements’ (1984) 78(2) ajil 345, 354; even though it is argued that state practice in several regions could be evidence that these provisions express general principles of international law, it does not seem that Articles 74(3) and 83(3) losc form part of customary international law as yet. biicl Report (n 2) pp. 43, 54, 114; during unclos iii there was a shared understanding between the delegations that interim measures were necessary in cases of pending delimitation. Lagoni (n 7) 353; the obligations included in these provisions emerge even when one of the parties in a dispute refuses to negotiate. Tanaka Y, ‘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’ (2015) 46(4) odil 315, 316. 8 Guyana v Suriname Award [2007] 30 riaa 1, para 459; Myron H Nordquist, Shabtai Rosenne, Satya N Nandan (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol ii (Martinus Nijhoff 1993) 815; Lagoni (n 7) 354; arguably, the obligation to enter into provisional arrangements occurs when overlapping claims have been set forth by the interested parties. biicl Report (n 2) p. 17. 9 Guyana v Suriname (n 8) para 461; Railway Traffic between Lithuania and Poland (Advisory Opinion) [1931] pcij Rep Series A/B No 42, p. 116 (an obligation to negotiate does not entail an obligation to reach an agreement); Milano E and Papanicolopulu I, ‘State Responsibility in Disputed Areas on Land and at Sea’ (2011) 71(3) Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 587, 611, 613, 615–616; Davenport (n 3) 110–111; biicl Report (n 2) p. 13.

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any provisional measures agreed prior to its conclusion.10 Despite not being recognized as part of customary international law, the provisions under ­examination echo the general principles of good faith and peaceful settlement of disputes—hence, these principles should be observed even by non-states ­parties to the losc—and, even though they do not require the conclusion of an agreement, they do necessitate some positive action by the parties in order to fulfill the aim of the particular provisions.11 Thus, apart from limiting activities in undelimited areas, it is also true that losc Articles 74(3) and 83(3) could be construed as promoting certain activities in such areas.12 In any event, states should be cautious when carrying out activities in undelimited areas lest such operations impair the environment in the maritime zones of other states.13 There is also a prohibition against putting the final arrangement at risk and ‘a specific duty to exercise mutual restraint in a difficult situation for the states concerned,’ despite the fact that certain activities could be allowed as long as they would not endanger the final settlement.14 As the Permanent Court of International Justice (‘pcij’) has put it: 10 11

12 13

14

Lagoni (n 7) 359; such provisional measures are called ‘sovereignty-neutral.’ Donald R Rothwell and Tim Stephens, The International Law of the Sea (2nd edn, Hart Publishing 2016) 443. The Palestine Mavrommatis Concessions [1924] pcij Rep Series A No 2, p. 13; Tacna-Arica Question (Chile/Peru) [1925] 2 riaa 921, 929–934; Lac Lanoux Arbitration (Spain v France) [1957] 12 riaa 281, 306–317; North Sea Continental Shelf Cases (Judgment) [1969] icj Rep 3, paras 85–87; Fisheries Jurisdiction (United Kingdom of Great Britain and Northern I­ reland v Iceland) (Judgment) [1974] icj Rep 3, para 79(3); Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Judgment) [1974] icj Rep 175, para 77(3); Delimitation of the ­Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (Judgment) [1984] icj Rep 246, para 87; the obligation to negotiate in good faith ceases only when the ­negotiations lead to an agreement. Lagoni (n 7) 357; Ong D M, ‘Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary ­International Law?’ (1999) 93(4) ajil 771, 783–784; Cameron P D, ‘The Rules of Engagement: Developing Cross-Border Petroleum Deposits in the North Sea and the Caribbean’ (2006) 55(3) iclq 559, 562–570; Kwiatkowska B, ‘Equitable Maritime Boundary ­Delimitation: A Legal Perspective’ (1988) 3(4) ijcel 287, 293–294; Klein N, ‘Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes’ (2006) 21(4) ijmcl 423. Guyana v Suriname (n 8) paras 460–464; Nordquist et al (n 8) 815; biicl Report (n 2) p. 19; van Logchem Y, ‘The Scope for Unilateralism in Disputed Maritime Areas’ in Clive Schofield et al. (eds), The Limits of Maritime Jurisdiction (Martinus Nijhoff 2014) 179–181. Trail Smelter case (United States/Canada) [1941] 3 riaa 1905, p. 1965; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226, para 29; mox Plant (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, itlos Reports 2001, p. 95, para 82; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] icj Rep 14, para 101; biicl Report (n 2) p. 20. Nordquist et al (n 8) 815, 984; Lagoni (n 7) 362. Lagoni holds the view that the sailing of warships linked to the subject matter of the controversy in the disputed area could ­jeopardise or hamper the conclusion of a final agreement. Lagoni (n 7) 365.

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…the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute.15 The duty of mutual restraint from undertaking exploration and exploitation operations in an undelimited area could also stem from the provisions of losc Articles 56, 77, 81 and 246(5) dealing with ‘due regard’ obligations compared to exclusive rights.16 For instance, if a state performs activities in a segment of the seabed in an undelimited area which later falls within another state’s area of jurisdiction, the former has violated the latter’s exclusive rights.17 With respect to eez activities, since there can be no definitive claim over that zone absent a delimitation, it could be argued that activities in the water column in an undelimited maritime space at a certain distance from the shores of the coastal state do not constitute a violation of another state’s sovereign rights,18 although third states should fulfil their ‘due regard’ responsibilities deriving from losc (Article 58(3)). It should not escape notice that a breach of the obligations enshrined in Articles 74(3) and 83(3) gives rise to state responsibility and imposes the duty on the violator to cease the unlawful behavior and guarantee non-repetition. Moreover, the licensing state could be under an obligation according to its contractual obligations to compensate the oil company to which it has granted a concession, since that permit will be rendered invalid.19 In the Aegean Sea Continental Shelf case (Request for Interim Protection), Greece had requested interim measures in view of the exploration activities by Turkey in areas of the Aegean Sea in respect of which there were overlapping claims. According to the icj, these activities did not entail the risk of physical 15 16

17

18 19

The Electricity Company of Sofia and Bulgaria (Interim Measures of Protection) [1939] pcij Rep Series AB No 79, p. 199; Trail Smelter case (n 13); Ong (n 11) 798–801. McLaughlin R J, ‘Maritime Boundary Delimitation and Cooperative Management of Transboundary Hydrocarbons in the Ultra-deep waters of the Gulf of Mexico’ in SeoungYong Hong and Jon M Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Martinus Nijhoff 2009) 211. 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) [2015] para 93 last accessed 18 May 2018; biicl Report (n 2) pp. 20–21. biicl Report (n 2) p. 20. International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (53rd Session, 2001) UN Doc A/56/10, art 30; Ong D M, ‘Implications of Recent Southeast Asian State Practice for the International Law on Offshore Joint Development’ in Beckman et al (n 2) 215–216; Townsend-Gault I, ‘The Malaysia/Thailand Joint Development Arrangement’ in Hazel Fox (ed), Joint Development of Offshore Oil and Gas, Vol ii (biicl 1990) 182.

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harm of the seabed and subsoil and no installations were established on the disputed continental shelf: Whereas seismic exploration of the natural resources of the continental shelf without the consent of the coastal state might, no doubt, raise a question of infringement of the latter’s exclusive right of exploration; whereas, accordingly, in the event that the Court should uphold Greece’s claims on the merits, Turkey’s activity in seismic exploration might then be considered as such an infringement and invoked as a possible cause of prejudice to the exclusive rights of Greece in areas then found to appertain to Greece…this power [to issue interim measures] is conferred on the Court only if it considers that circumstances so require in order to preserve the respective rights of either Party; and whereas this condition, as already noted, presupposes that the circumstances of the case disclose the risk of an irreparable prejudice to rights…the Court is unable to find in that alleged breach of Greece’s rights such a risk of irreparable prejudice to rights in issue before the Court as might require the exercise of its power under Article 41 of the Statute to indicate interim measures for their preservation.20 In other words, the Court propounded that since the mere conduct of seismic surveys does not generate any irreversible harm to the seabed, subsoil, and their natural resources, such activities are permissible under international law, although this could constitute a potential violation of Greece’s exclusive right to exploration. Therefore, in the opinion of the Court, the ‘litmus test’ for resolving whether oil and gas activities in undelimited maritime areas are compatible with international law is the cause of irreparable damage to the geological structure of the seabed and subsoil. In the Guyana v. Suriname case, the first case to have discussed losc Articles 74(3) and 83(3), the Arbitral Tribunal examined the conduct of exploration and exploitation activities in undelimited waters. In construing Articles 74(3) and 83(3), the Tribunal held that these provisions take into account the need to avoid ‘the suspension of economic development in a disputed area’ and seem to impose an obligation of entering into negotiations in good faith.21 20 21

Aegean Sea Continental Shelf (Greece v Turkey) (Interim Protection) Order of 11 September 1976, icj Rep 3, paras 30–33. Guyana v Suriname (n 8) paras 460–461; Tanaka Y, ‘The Guyana/Suriname Arbitration: A Commentary’ (2007) 2(3) hjj 28; Fietta S, ‘Guyana/Suriname’ (2008) 102(1) ajil 119, 119–128; Fietta S, ‘Introductory Note to Arbitral Tribunal Decision Guyana v Suriname’ (2008) 47(2) ilm 164, 164–165; Stephen Fietta and Robin Cleverly, A Practitioner’s Guide to

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The ­Tribunal upheld the distinction between acts causing permanent physical harm (drilling operations), and those that do not (seismic surveys). On this basis, the Tribunal stated that since the latter activities do not result in irreparable physical damage and do not hamper the reaching of a final agreement, they should be permissible, whereas drillings undertaken unilaterally are to be deemed unlawful.22 Finally, the Tribunal found both the use of force on the part of Suriname against a drill ship operating on behalf of Guyana and the conduct of exploratory drillings by Guyana without prior consultation with Suriname to be in breach of the obligations laid down in Articles 74(3) and 83(3).23 In a similar vein—following the application of Côte d’Ivoire for provisional measures seeking to achieve cessation of Ghana’s drilling activities Ghana in an undelimited maritime area—the Special Chamber of itlos highlighted the great importance ascribed to the preservation of the marine environment by the losc, customary international law, and international jurisprudence.24 Additionally, the Chamber accentuated the risks Ghana’s exploration and exploitation activities, including exploratory drillings, entailed for the environment and noted that damage on the seabed and subsoil would not be possible to remedy by means of compensation.25 In the end, the Chamber concluded that Ghana’s activities might cause irreparable harm to Côte d’Ivoire's rights and, therefore, ordered Ghana to not commence any new drillings.26 The Chamber also reiterated an important point which could allay the fears of many states involved in a dispute and could contribute to the easement of tensions. In particular, it stated: ‘…any action or abstention by either party in order to avoid aggravation or extension of the dispute should not in any way be construed as a waiver of any of its claims or an admission of the claims of the other party to the dispute.’27

22 23 24

25 26 27

Maritime Boundary Delimitation (oup 2016) 439–452; Davenport (n 3) 100–104; it was not the intention of the drafters of the losc to prevent the performance of all activities in undelimited maritime areas. van Logchem (n 12) 180–181. Guyana v Suriname (n 8) paras 460, 466–468, 470, 480–481. Ibid., paras 488(2)(3). Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order of 25 April 2015, itlos Reports 2015, p. 146, paras 68–73; Sarmiento Lamus A and González Quintero R, ‘Request for Provisional Measures in the Dispute concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the ­Atlantic Ocean (Ghana/Côte d’Ivoire)’ (2016) 31(1) ijmcl 160. Ghana/Côte d’Ivoire (n 24) paras 88–91. Ibid., paras 96, 102, Dispositif para 1(a). Ibid., para 103; see also M/V ‘saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea), Provisional Measures, Order of 11 March 1998, itlos Reports 1998, p. 24, para 44; M/V ‘Louisa’ (Saint Vincent and the Grenadines v Kingdom of Spain), Provisional Measures, Order of 23

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Another noteworthy aspect of the Order is that the Chamber took into consideration any financial losses Ghana was likely to suffer in the event that its ongoing hydrocarbon activities were to be ceased. With a view to striking a balance as to the protection of the rights of both parties and despite prohibiting any future activities, the Chamber did not rule for the termination of those activities already underway, distinguishing its position from previous case law, and, probably, paving the way for the creation of a precedent sanctioning unilateral drillings ex post facto.28 However, as Tanaka notes, the fact that the oil and gas activities of Ghana took place on its side of the equidistance line may have played a role in the Chamber’s decision, while this decision underscores the suitability of the equidistance or median line method as a provisional measure.29 This approach deviates from well-established international jurisprudence, which—contrary to state practice—has been reluctant to contemplate any economic factors, namely the raison d’ être of both the continental shelf and eez notions, which prompt states to pen delimitation agreements, for the drawing of maritime boundaries.30 This is despite the 1950 ila Report referring to minerals as a factor relevant to delimitation,31 while, as the icj has put it: ‘[t]he natural resources of the subsoil of the sea in those parts which consist

28

29 30

31

December 2010, itlos Reports 2008–2010, p. 58, para 79; ‘Arctic Sunrise’ (Kingdom of the Netherlands v Russian Federation), Provisional Measures, Order of 22 November 2013, itlos Reports 2013, p. 230, para 99. Ghana/Côte d’Ivoire (n 24) paras 98–100; these findings were criticised by Tanaka, who argues that any financial losses on the part of Ghana could be compensated, while there’s a risk for other states to use the decision in order to justify drilling in a disputed area. Tanaka (n 7) 325, 327. Tanaka (n 7) 325. Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] icj Rep 18, para 107; Barbados v Trinidad and Tobago Award [2006] 27 riaa 147, para 241; Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] icj Rep 61, para 198; Nicaragua v Colombia (n 4) para 223; Kwiatkowska B, ‘Economic and Environmental Considerations in Maritime Boundary Delimitations’ in Jonathan I Charney and Lewis M Alexander (eds), International Maritime Boundaries, Vol i (Martinus Nijhoff 1993) 75, 78–81, 106; Miyoshi M, ‘Some Thoughts on Maritime Boundary Delimitation’ in Hong and Van Dyke (n 16) 113; Evans M D, ‘Maritime Boundary Delimitation’ in Donald R Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (oup 2015) 274–276; Dundua argues that the Jan Mayen case ‘appears to have reintroduced socio-economic considerations into maritime boundary law.’ Dundua N, ‘Delimitation of Maritime Boundaries between Adjacent States’ (The Nippon Foundation 2006–2007) 72. Nonetheless, the Jan Mayen case dealt with fisheries, not hydrocarbons; René-Jean Dupuy and Daniel Vignes (eds), A Handbook on the New Law of the Sea, Vol i (Martinus Nijhoff 1991) 367. International Law Association, Report of the Forty-fourth Conference, Copenhagen, 1950, p. 135, sub-paragraph (3). Reproduced in ybilc (1950) Vol i, p. 233.

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of ­continental shelf are the very object of the legal regime established subsequent to the Truman Proclamation.’32 Additionally, in designating a maritime boundary, the icj stressed that only those considerations pertinent to the concept of the continental shelf will be taken into account.33 An also crucial point is the finding of the Chamber that access to information about resources falls within the ambit of a state’s exclusive rights,34 a point to which the icj had alluded in the Aegean Sea Continental Shelf case. This reminds us that even exploration for the attainment of seismic data might constitute a violation of sovereign rights and should be prohibited. The particular conclusion could signal a departure from previous cases where international courts and tribunals seemed to condone unilateral exploration activities in undelimited areas. At the merits stage, the Special Chamber resolved that the unilateral drilling operations exercised by Ghana in the undelimited maritime area did not violate Côte d’Ivoire’s sovereign rights.35 Indeed, Ghana had carried out oil drillings in an area eventually recognised as part of its maritime area, hence the Chamber rightly found that there was no breach of the Ivorian sovereign rights. However, this should not be accepted as a general rule since finding a violation of sovereign rights is not a prerequisite for determining whether there has been a breach of Article 83(3) losc. The particular provision imposes an obligation on States to show restraint and not to perform activities in an undelimited area that might jeopardise the reaching of the final agreement. In other words, the duties envisaged in Article 83(3) (and Article 74(3)) losc exist independently of any circumvention of a State’s sovereign rights. The way Côte d’Ivoire constructed its argument (claiming that the activities in breach of Article 83(3) losc were undertaken in the Ivorian maritime area) probably 32 33

34 35

North Sea cases (n 11) paras 97, 101(D)(2). Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] icj Rep 13, para 48; Kwiatkowska argues that economic factors are not contemplated because where the principle of equity is invoked, it does not operate as distributive justice, although she poses the question whether economic factors could be incorporated in equitable principles. Kwiatkowska (n 11) 302–303; Churchill R R, ‘Maritime Delimitation in the Jan Mayen Area’ (1985) 9(1) MP 16, 21–25; McDorman T L et al, ‘The Gulf of Maine Boundary: Dropping Anchor or Setting a Course?’ (1985) 9(2) MP 90, 102–106; Østreng W, ‘Delimitation Arrangements in Arctic Seas: Cases of Precedence of Securing of Strategic/Economic Interests?’ (1986) 10(2) MP 132, 132–154. Ghana/Côte d’Ivoire (n 24) paras 94–95. Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, itlos Reports 2017, to be published; Ioannides N A, ‘A Commentary on the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire)’ (2017) 3 msslj 48.

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played a role in the Chamber’s decision. This is because the latter could not have construed activities in the undelimited area as actions that had occurred in the Ivorian maritime area, given that the drillings by Ghana had not been carried out in Ivorian area but in an area which was not, at the time, definitively delimited. Judge Paik took a better stance on the matter stressing that although Ghana operated in an area finally granted to it, this does not preclude wrongfulness caused by the violation of the obligation provided for in Article 83(3) losc. As he rightly pointed out: ‘to condone the unilateral activities of such a scale in the circumstances of the present case would certainly send a wrong signal to States pondering over their next move in a disputed area elsewhere.’36 3

Hydrocarbon and Other Activities in Undelimited Maritime Areas in the East Med

The Maritime Area between the Greek Islands of the Southeastern Aegean Sea and Cyprus The last two decades have signaled a landmark era for the East Med, in light of the hydrocarbon discoveries that have triggered a gamut of maritime activities; however, the volatility in the region has also resulted in overlapping maritime claims. As a consequence, Greece and Cyprus on the one hand and Turkey on the other quarrel over an undelimited maritime area lying between the Greek islands of southeastern Aegean and Cyprus (Figures 12.1–12.2). It should be pointed out from the outset that no exploratory or appraisal drilling operations have taken place so far in there, hence the following analysis is made against the backdrop of solely seismic surveys performed in the particular area. With respect to the legal assessment of the conundrum in the sea waters under scrutiny, the findings of the Arbitral Tribunal in Guyana v. Suriname 3.1

36

Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, itlos Reports 2017, to be published, Separate Opinion of Judge Paik, para 19; this aspect of the judgment has been criticised by several authors. Bankes N, ‘itlos Judgment in the Maritime Boundary Dispute between Ghana and Côte d’Ivoire’ (The jclos Blog, 27 October 2017) last accessed 18 May 2018; ­Ermolina N and Yiallourides C, ‘State responsibility for unilateral hydrocarbon activities in disputed maritime areas: The case of Ghana and Côte d’Ivoire and its implications’ (The jclos Blog, 23 November 2017) last accessed 18 May 2018.

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case provide important directions. Guyana and Suriname are adjacent states which had laid overlapping maritime claims. Tensions over hydrocarbon exploration rose high when the Surinamese navy forced the ‘C.E. Thornton,’ an oil rig and drill ship operating on behalf of Guyana, to halt its activities and withdraw from the undelimited area. The Arbitral Tribunal set forth that the verbal threats from Surinamese vessels towards ‘C.E. Thornton’ were tantamount to threat of force in breach of Article 2(4) of UN Charter, of the losc, and of general principles of international law.37 The Tribunal also stated that it is not necessary that the threat or use of force be aimed against the territorial integrity and independence of a state in order to be viewed as a violation of international law.38 Furthermore, the Tribunal held that the threat of force in disputed waters was a factor jeopardising the achievement of a final delimitation agreement, in contravention of losc Articles 74(3) and 83(3).39 Arguably, certain law enforcement activities on the part of Turkey40 resemble the conduct of Suriname.41 This similarity is more apparent if one takes 37

38 39 40

41

Guyana v Suriname (n 8) paras 151, 445; it is worth mentioning that Article 301 losc ­renders the principles of the UN Charter applicable to the law of the sea ambit, including the prohibition of the threat or use of force and self-defence. Rothwell and Stephens (n 10) 452; the prohibition of the use of force does not entail unlawfulness of all military activities at sea, but only of those which infringe Article 2(4) UN Charter. James Kraska, Maritime Power and Law of the Sea (oup 2011) 257; it was the interception of oil drilling operations carried out by Texaco on behalf of Malta by a Libyan warship which triggered international adjudication between Libya and Malta before the icj. Guyana v Suriname (n 8) para 423. Ibid., para 484. Here are some examples: in November 2008 Turkish frigates intercepted research vessels ‘Harrier Explorer,’ ‘Marja’ and ‘Aquarius G,’ which were performing oceanographic surveys for Cyprus in its eez and did not allow them to continue western of the longitude 32° 16’ 18” since Turkey considers the particular area as part of its continental shelf; in ­December 2009 a Turkish navy corvette called on the German-flagged vessel ‘Maria S ­Merian,’ carrying out bathymetric research in waters southern of the Cypriot coasts after having obtained a permission by Cyprus, to cease its operation; in January 2011 survey vessel ­‘Explora’ conducting research for the laying of a cable interconnecting Israel and Italy was repeatedly interrupted by Turkish warships off Kastellorizo; in December 2015, a Turkish frigate intercepted Cypriot-flagged survey vessel ‘Flying Enterprise’ performing sounding research with a view to laying optic fibres for the EuroAsia Interconnector project, which is an electricity cable interconnecting Israel-Cyprus-Greece; on 22 October 2016, a Turkish frigate ordered survey vessel ‘Med Surveyor,’ conducting scientific research on behalf of Greece southern of the Greek island Kastellorizo, to abandon its operations and leave the area since Turkey argues that it falls within the limits of its continental shelf. It should be recalled that Article 2(4) UN Charter is a ius cogens (non-derogable) rule and forms part of customary international law; ‘…[A] peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only

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into consideration that the Surinamese navy vessels engaged in the operation against the ‘C.E. Thornton’ did not have any weapons, but only featured personnel carrying firearms. Unlike the Surinamese incident, the Turkish navy vessels involved in the interception of vessels offshore Cyprus were actually warships. It should not be overlooked that freedom of navigation shall not be ­thwarted in the eez as in those waters the freedom of the high seas is still applicable and the coastal state shall act in ‘due regard’ in respect of the rights of other states in its eez, while third states are required to respect the coastal state’s rights in the eez.42 Despite the above, the exercise of the rights of states in the eez of another state shall not hinder the coastal state from exercising its sovereign rights over its continental shelf or eez.43 By virtue of customary international law and losc Articles 56(1)(a)(3), 58(3), 77(1)(2), 81 and 246(5) the coastal state is authorised to exercise e­ nforcement jurisdiction with a view to curtailing and/or interrupting any private vessels’ activities which are in breach of national legislation concerning exploration and exploitation of that state’s natural resources in the continental shelf or eez.44 However, in the event that foreign warships or government vessels

42

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by a subsequent norm of general international law having the same character.’ Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980) 1155 unts 331, art 53; on the customary and peremptory character of Article 2(4) UN Charter see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] icj Rep 14, para 190; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] icj Rep 136, para 87. losc (n 5) arts 56(2), 58(1)(3) and 78; Request for Advisory Opinion submitted by the SubRegional Fisheries Commission, Advisory Opinion, 2 April 2015, itlos Reports 2015, p. 4, para 129; The Chagos Marine Protected Area Award (Mauritius v United Kingdom) [2015] para 519 last accessed 18 May 2018; The Philippines v China Award [2016] paras 741–743 last accessed 18 May 2018; freedom of navigation in the eez is part of customary international law. Case concerning the Delimitation of Maritime Areas between Canada and the French Republic (1992) 31 ilm 1149, para 88. The Philippines v China Award (n 42) paras 699–700. ‘Report of the International Law Commission covering the work of its eighth session’ (23 April – 4 July 1956) UN Doc A/3159. Reproduced in ybilc, Vol ii (1956) 297; Arctic Sunrise Award (The Netherlands v Russia) [2015] paras 284, 324 last accessed 18 May 2018; Klein argues that the Arbitral Tribunal in the Guyana v Suriname case ‘implicitly accepted that a coastal state may be able to take law enforcement action in response to unauthorized drilling.’ Natalie Klein, Maritime Security and the Law of the Sea (oup 2011) 99; Tanaka supports that the application of the right of hot pursuit to violations of sovereign rights on the continental shelf implies coastal state’s enforcement jurisdiction. Yoshifumi Tanaka, The International Law of the Sea (2nd edn, cup 2015) 147–148; the Australian case Muslimin v The Queen (2010) 240 clr 470 provides

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i­nterfere with survey vessels’ undertakings, the littoral state is not allowed to employ police enforcement measures because these vessels enjoy sovereign immunity, being an expression of the flag state’s sovereignty and of the principle of equality of states.45 As seen above, such actions may constitute a violation of the UN Charter and give rise to state responsibility for the flag state.46 At any rate, due to the overlapping claims of Greece, Turkey, and Cyprus and on account of the lack of any maritime boundary delimitation agreement, the legal regime of only some portions of the sea waters and seabed between the north-western coasts of Cyprus and Kastellorizo can be characterised as disputed, for ‘just because a state claims that it has an entitlement does not mean that it does.’47 As discussed earlier, in certain instances, international jurisprudence suggests that seismic surveys by all the interested parties may be deemed lawful, whereas drilling is prohibited.48 Even though in the cases analyzed above international courts and tribunals condemned unilateral

45

46 47 48

ample evidence of enforcement practice as regards violation of exclusive rights over the continental shelf; Andreone G, ‘The Exclusive Economic Zone in Rothwell et al (n 30) 170. losc (n 5) art 32; The Schooner Exchange v McFaddon (1812) 11 US (7 Cranch) 116, 144; The Alexander [1906] 1 hklr 122, 129, 130; Institut de Droit International, ‘Regulations Concerning the Regime of Sea-going Vessels and Their Crews in Foreign Ports in Time of Peace’ (1928) 34 Annuaire 741–742; ‘ara Libertad’ (Argentina v Ghana), Provisional Measures, Order of 15 December 2012, itlos Reports 2012, p. 332, paras 94–95, 100; Cabrera ­Mirassou M, ‘The ara Libertad’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2013-, online edition) last accessed 18 May 2018; Oxman argues that the conduct of law enforcement operations against foreign warships could amount to a threat or use of force against the flag state. Oxman B H, ‘The Regime of Warships Under the United Nations Convention on the Law of the Sea’ (1983–1984) 24(4) vjil 809, 815, 820; Kraska J, ‘The “ara Libertad” (Argentina v Ghana)’ (2013) 107(2) ajil 404; Sergei G Gorshkov, The Sea Power of the State (Naval Institute Press 1979) 47; sovereign immunity of foreign warships in ports was eventually recognised by the Supreme Court of Ghana in the aftermath of the ‘ara Libertad’ case. Republic v High Court (Commercial Division) Accra, Ex parte Attorney General, nml Capital and the Republic of Argentina, Civil Motion No J5/10/2013 (Supreme Court Ghana) [2013] para 24; the concept of immunity is based on the Roman maxim ‘par in parem non habet imperium’ (equals do not have authority over one other); Delupis I, ‘Foreign Warships and Immunity for Espionage’ (1984) 78(1) ajil 53. Articles on Responsibility of States (n 19). Evans (n 30) 261. As Churchill notes: ‘there is probably a rule of international law which prohibits states from exploiting seabed resources in disputed areas.’ Churchill R R, ‘Joint Development Zones: International Legal Issues’ in Fox (n 19) 57; however, it is argued that if delimitation negotiations take place and no agreement is reached the obligation not to drill ceases. Robin Churchill and Geir Ulfstein, Marine Management in Disputed areas: The Case of the Barents Sea (Routledge 1992) 86; owing to the lack of maritime delimitation in the Bering Sea between ussr and usa, the latter had prohibited drilling or exploitation. Earney F C

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drilling operations in undelimited areas, it seems there is a legal obligation to cooperate so as to avoid unilateral exploitation,49 thus accepting seismic operations. Nonetheless, it can very well be said that seismic surveys could also deteriorate a dispute as the party conducting research obtains data on the geological structure of an area which might fall into the other party’s territory, thus infringing the latter’s exclusive sovereign right on exploration of the seabed and subsoil and, consequently, the exclusive right to information. Besides, the Tribunal in the Guyana v. Suriname, by using the phrase ‘seismic survey … should be permissible,’ did not explicitly condone unilateral seismic research in the undelimited area,50 taking a slightly different approach than the icj in the Aegean Sea Continental Shelf case. Moreover, it should be pointed out that the threshold for prescribing interim or provisional measures is higher than the threshold for ascertaining whether there is a violation of the obligation not to jeopardize or hamper the reaching of a final agreement.51 Therefore, even if an exploratory activity is not deemed sufficient for the issuance of interim or provisional measures by a court or tribunal, it may very well constitute a breach of the obligation enshrined in losc Articles 74(3) and 83(3) or, in case a seismic survey is conducted in a maritime area indisputably falling within the jurisdiction of a coastal state, an infringement of losc Articles 56 and 77. It is also noteworthy that the lack of express rejection does not entail endorsement of unrestricted exploration activities in disputed areas.52 Such operations could be considered as justifiable only following prior notification, consultation and negotiation, or sharing of findings among the interested parties, or a combination of these approaches.53 With a view to avoiding ­stalemate, it is also suggested that in case one of the parties is reluctant to acquiesce to the other party’s research activities in a certain undelimited area, it should be prepared to justify its decision. Otherwise such a decision might

49 50 51 52 53

F, ‘The United States Exclusive Economic Zone: Mineral Resources’ in Gerald Blake (ed), Maritime Boundaries and Ocean Resources (Croom Helm 1987) 171. Miyoshi M, ‘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’ (1988) 3(1) ijecl 1, 12. van Logchem (n 12) 182–183, 185, 196. Guyana v Suriname (n 8) para 469; van Logchem (n 12) 187–191. If exploration activities lead to the aggravation of the situation, they cannot be deemed lawful. Lagoni (n 7) 366. Ghana/Côte d’Ivoire (n 24) paras 94–95; Fietta and Cleverly (n 21) 452; Redgwell C, ‘International Regulation of Energy Activities’ in Roggenkamp M et al. (eds), Energy Law in Europe: National, EU and International Regulation (3rd edn, oup 2016) 61.

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be considered acting in bad faith.54 In broad terms, the entire area between the Greek islands of the southeastern Aegean Sea and Cyprus should not be characterised as disputed, because the Greek islands and Cyprus have the right to claim continental shelf and eez rights beyond their territorial sea and not to be confined in that zone, as Turkey argues. Concerning enforcement measures, the right of coastal states to enforce their domestic legislation in undelimited areas seems to be circumscribed given that such areas do not definitively fall within the jurisdiction of a particular state.55 Certainly, any activities of this kind should be carried out in compliance with general international law and, particularly, not to hamper the conclusion of a delimitation agreement56 nor to impair the rights of other interested states. Further, law enforcement operations should not ‘be used as an excuse for muscular action against the vessels and nationals of another State, in an attempt to reinforce a claim to the maritime area.’57 On any account, the use of force in law enforcement operations must be the last resort and may not be excessive of what is reasonable and necessary.58 Although the use of force in law enforcement operations is distinct from the use of force in inter-state relations, forcible measures exercised against merchant vessels may amount to use of force under UN Charter Article 2(4).59 Lastly, the determination as to whether an action constitutes a law enforcement operation or use of force is 54 55

56 57

58

59

Lagoni (n 7) 366; Ong (n 11) 802–803. van Logchem (n 12) 193; certain scholars support the right of the parties to a dispute to implement and enforce their legislation in an undelimited area. Milano and Papanicolopulu (n 9) 622; jurisdiction entails ‘the capacity of a state under international law to prescribe or to enforce a rule of law.’ Bowett D W, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’ (1983) 53(1) bybil 1. The Electricity Company of Sofia and Bulgaria (n 15) p. 199. Milano and Papanicolopulu (n 9) 623; vessels engaged in dangerous manoeuvres within the context of law enforcement operations causing a risk of collision are in breach of the colregs and Article 94 losc. The Philippines v China Award (n 42) paras 1082–1083, 1090–1095. SS ‘I’m Alone’ (Canada/United States) [1935] 3 riaa 1609; ‘The Red Crusader’ (Denmark/ United Kingdom) [1962] 29 riaa 521; M/V ‘saiga’ (No. 2) (Saint Vincent and the Grenadines v Guinea) Judgment, itlos Reports 1999, p. 10, paras 155–156; Shearer A I, ‘Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’ (1986) 35(2) iclq 320, 341–342; Daniel P O’ Connell, The Influence of Law on Sea Power (mup 1975) 65. Klein (n 44) 98–100; Rothwell and Stephens (n 10) 445–455; Jimenez Kwast P, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13(1) jcsl 49, 58–59; Oil Platforms (Iran v United States of America) (Judgment) [2003] icj Rep 161, paras 50–61, 78; losc (n 5) art 301.

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contingent upon ‘the factual circumstances of each case in the framework of the relations between the concerned states.’60 Even leaving a possible violation of UN Charter Article 2(4) aside,61 it is questionable whether all actions in the particular area could be considered as police enforcement measures since, although in undelimited waters all interested states may, in certain areas, exercise law enforcement activities, a state is not authorised to exercise such operations in sea waters which fall within the maritime zones of another state. In addition, the coastal state’s domestic legislation providing for the exercise of enforcement jurisdiction in case its sovereign rights over its maritime zones have been violated should not be inconsistent with international law. But, even if it is compatible, no action outside the legal framework in place and beyond the areas of jurisdiction of that state should be undertaken, as any such measures would rest on shaky legal grounds.62 3.2 The Maritime Dispute between Israel and Lebanon As if on the ground tensions in the Middle East were not enough, a problem occurred between Israel and Lebanon in the maritime domain as well. A few months prior to the signing of the Israeli-Cypriot eez delimitation agreement, Lebanon made two submissions to the UN transmitting the coordinates of the southern limit of its eez (14 July 2010 and 19 October 2010). A year later, Lebanon made a new submission, which superseded its previous submissions concerning the northern, western, and southern limits of its eez, adding two more points (point 7 in the north and point 23 in the south).63 The last submission, like the previous ones, is premised on the 1922 Paulet-Newcombe agreement regarding the demarcation of the terrestrial boundary between Lebanon and Palestine64 and the 1949 Armistice Demarcation Line agreed between the Arabs and Israel in the aftermath of the Israeli-Arab war in 1948. As a result, 60 61 62 63 64

Roscini M, ‘Threats of Armed Force and Contemporary International Law’ (2007) 54 nilr 229, 241. Even though many states use naval forces in the exercise of constabulary duties, law enforcement activities should be distinguished from use of force in violation of Article 2(4) UN Charter and ‘gunboat diplomacy.’ See footnote 37. Rothwell and Stephens (n 10) 456; ‘the (un)lawfulness of the jurisdictional basis of measures taken in the exercise of enforcement powers under the legislation in question does not as such determine the categorisation of the actions.’ Jimenez Kwast (n 59) 87. Deposits by Lebanon last accessed 18 May 2018. The 1923 Paulet-Newcombe agreement demarcated the border between the French Mandate for Syria and Lebanon and the British Mandate for Palestine. Exchange of Notes Constituting an Agreement between the British and French Governments respecting the Boundary Line between Syria and Palestine from the Mediterranean to El Hammé

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Lebanon claims a maritime space of 850–860 km2 which, on the authority of the Israeli-Cypriot eez agreement, falls within the maritime space allocated to Israel. Lebanon argues that Point 1 of its delimitation line with Cyprus is not the southern terminal point of the median line, hence it ‘may not be ­taken as a starting point between Cyprus and any other country,’ namely Israel ­(Figures 12.3–12.4).65 On its part, Israel has based its maritime boundary assertions on the ‘Blue Line,’ namely the limit to which Israeli forces withdrew in 2000 following a ceasefire agreement, and which was drawn several kilometres to the north of the 1949 Armistice Line.66 In spite of the fact that Lebanon agreed with Cyprus to a delimitation line of which the southern end is Point 1 which is also Point 1 in the Israel-Cyprus agreement (latitude 33° 38` 40” North, longitude 33° 53` 40” East), it now claims a new point (Point 23) situated at a distance of seventeen km south of Point 1 (latitude 33° 31` 51.17” North, longitude 33° 46` 8.78” East).67 Lebanon argues that the extreme end of its agreed maritime boundary with Cyprus is not d­ efinitive, thus is susceptible to review or modification as stipulated in Article 1(e) of the 2007 delimitation agreement between the two parties. It should also be borne in mind that Article 3 of the Lebanon-Cyprus delimitation agreement envisages that a party entering into negotiations with a third

65

66

67

(07 March 1923) 22 lnts 363; Joel Peters and David Newman (eds), The Routledge Handbook on the Israeli-Palestinian Conflict (Routledge 2013) 146–147. Letter dated 20 June 2011 from the Minister for Foreign Affairs and Emigrants of Lebanon addressed to the Secretary-General of the United Nations concerning the Agreement between the Government of the State of Israel and the Government of the Republic of Cyprus on the Delimitation of the Exclusive Economic Zone, signed in Nicosia on 17 ­December 2010; Letter dated 3 September 2011 from the Minister for Foreign Affairs and Emigrants of Lebanon addressed to the Secretary-General of the United Nations concerning the geographical coordinates of the northern limit of the territorial sea and the exclusive economic zone transmitted by Israel; Daniel Meier, ‘Lebanon’s Maritime B ­ oundaries: Between Economic Opportunities and Military Confrontation’ (2013) pp. 2, 4 last accessed 18 May 2018; Scovazzi T, ‘Maritime Boundaries in the Eastern Mediterranean Sea’ (gmf 2012) p. 9; Martin Wählisch, ‘Israel-Lebanon Offshore Oil & Gas Dispute – Rules of International Maritime Law’ (05 December 2011) asil Insights, Vol 15 Issue 31 last accessed 18 May 2018. Darbouche H et al, ‘East Mediterranean Gas: What Kind of a Game-changer?’ (The Oxford Institute for Energy Studies 2012) p. 6; De Boncourt M, ‘Offshore Gas in East Mediterranean: From Myth to Reality’ (ifri 2013) 34; another factor complicating even further the plotting of a maritime boundary is the irregular coast at the land boundary between Lebanon and Israel. Sofaer A, ‘Securing Israel’s Offshore Gas Resources’ (Presentation, 23 June 2013) 13 last accessed 18 May 2018. Letter dated 3 September 2011 (n 65); Meier (n 65) pp. 3–4; Wählisch (n 65).

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state for the d­elimitation their maritime boundary has an obligation to consult the other party.68 According to a retired Lebanese Major General, Lebanon expects Cyprus to rectify the mistake it has made by concluding a delimitation agreement with Israel without taking into account Lebanon’s interests, suggesting recourse to the losc dispute settlement mechanism if no arrangement is reached.69 In a meeting in 2011, Lebanon requested Cyprus to acquiesce in the extension of the southern end of their maritime boundary so as to reach Point 23, but the government of Cyprus did not agree because that would have encroached upon its agreed boundary with Israel.70 What is more, despite the fact that Lebanon has not ratified and does not consider the delimitation agreement with Cyprus as being valid, the latest coordinates submitted by Lebanon as regards the western limit of its eez coincide with the median line agreed with Cyprus in 2007, while Lebanon’s Law 163/2011 mentions that the Lebanese eez extends up to the equidistance points between Lebanon-Cyprus-Syria and Lebanon-Cyprus-Palestine.71 Therefore, the median line between Lebanon and Cyprus seems to have been consolidated and the mere lack of ratification has not rendered the treaty void; actually Lebanon’s subsequent practice (i.e. delineation of offshore blocks respecting the boundary) demonstrates the opposite. Hence, a renegotiation of the delimitation agreement between Lebanon and Cyprus is necessary only for the extreme ends of the boundary taking into account the interests of neighbouring states.72 Notwithstanding the above, it should not escape notice that any 68

69 70 71

72

‘If any of the two Parties is engaged in negotiations aimed at the delimitation of its Exclusive Economic Zone with another State, that Party, before reaching a final agreement with the other State, shall notify and consult the other Party, if such delimitation is in connection with coordinates (1) or (6).’ Agreement between the Government of the Republic of Lebanon and the Government of the Republic of Cyprus (n 1) art 3. Chehaitli A R, ‘The Maritime Borders Conflict of Lebanon and its Impact on the Drilling Process of Gas and Oil’ (MA Thesis, Notre Dame University 2015) 11, 37, 41, 75. Lakes G, ‘Lebanon: Efforts to Establish a Hydrocarbon Sector’ in Hubert Faustmann et al (eds), ‘Cyprus Offshore Hydrocarbons: Regional Politics and Wealth Distribution’ (Friedrich Ebert Stiftung-PRIO 2012) 42–43; Wählisch (n 65). ‘Deposit by Lebanon of a chart and lists of geographical coordinates of points pursuant to article 75, paragraph 2, of the Convention’ (14 November 2011) last accessed 18 May 2018; Abu Gosh E S and Leal-Arcas R, ‘Gas and Oil Explorations in the Levant Basin: The Case of Lebanon and Israel’ (2013) 11(3) ogel 1, 14–16; Law 163/2011 on the Delineation and Declaration of the Maritime Zones of the Lebanese Republic (17 August 2011) art 6. Reproduced in asdeam, ‘The Legal Framework of Lebanon’s Maritime Boundaries: The Exclusive Economic Zone and Offshore Hydrocarbon Resources’ (November 2012). Wählisch (n 65).

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escalation of tensions between these two states with respect to their maritime conflict could have ramifications on the efforts of the East Med states to establish a regional cooperative framework and that is why a settlement of the quandary is necessary as soon as possible. The disagreement between Lebanon and Israel actually occurred when ­Israel signed an eez delimitation agreement with Cyprus and transmitted to the UN the coordinates for the northern limit of its territorial sea and eez, which, of course, are at variance with Lebanon’s claimed eez southern limit.73 The government of Lebanon considered the foregoing deposition by Israel as ‘an assault on Lebanese sovereignty’ and a violation of its economic rights, thus rejected the Israeli coordinates, also stating: Israel has adopted point 1 as the point that separates the exclusive economic zones of Cyprus, Israel and Lebanon, while it is point 23, which is equidistant between those three countries … [o]n the basis of the foregoing, it is clear that the geographical coordinates that were deposited with you by Israel violate the sovereign and economic rights of Lebanon over its territorial waters and exclusive economic zone.74 Notably, although Israel has delineated blocks in the area under concern, it has not granted any licences for oil and gas activities in the undelimited/ disputed area; consequently, no hydrocarbon activities have taken place in the particular maritime area (Figures 12.5–12.6).75 Moreover, while Hezbollah has made threats towards Israel and the latter replied expressing its readiness to use its armed forces to protect its energy resources,76 fortunately no military violence has erupted. The aforementioned developments indicate that Israel, 73

74 75

76

List of Geographical Coordinates for the Delimitation of the Northern Limit of the Territorial Sea and Exclusive Economic Zone of the State of Israel (12 July 2011) last accessed 18 May 2018. Letter dated 3 September 2011 (n 65). Meier (n 65) pp. 6, 10–11; the seabed and subsoil in the disputed areas also contains hydrocarbon reserves. Vogler S and Thompson E V, ‘Gas Discoveries in the Eastern Mediterranean: Implications for Regional Maritime Security’ (gmf 2015) 5; El-Katiri L and El-Katiri M, ‘Regionalizing East Mediterranean Gas: Energy Security, Stability and the US Role’ (United States Army War College Press 2014) 12. Abu Gosh and Leal-Arcas (n 71) 7–8; Fattouh B and El-Katiri L, ‘Lebanon: The Next Eastern Mediterranean Gas Producer?’ (gmf 2015) 7; ‘Lebanon: Israel’s intent to unilaterally demarcate its maritime borders violates international law’ (Natural Gas Europe, 06 January 2014) last accessed 18 May 2018.

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either deliberately or inadvertently, observes the obligation set forth by losc Articles 74(3) and 83(3) not to ‘jeopardize or hamper the reaching of the final agreement’ despite the fact that it is not a party to the losc. Irrespective of the mediation efforts made on the part of the usa, Cyprus, and the United Nations Interim Force in Lebanon (‘unifil’), the controversy between Israel and Lebanon has not been settled (Figures 12.7–12.8).77 ­Lebanon appears to have requested the designation of a provisional sea boundary, as happened in 2000 after arduous negotiations with respect to the land boundary (the Blue Line).78 Furthermore, judicial settlement is not likely, as neither party to the dispute has accepted the icj compulsory jurisdiction, while recourse to Part xv of the losc is not possible as Israel is not a party to the Convention. Regardless, the parties can always accept the icj jurisdiction for this dispute or agree to arbitration outside the losc framework. However, after a protracted period of time, Lebanon enacted two decrees in early 2017 necessary for the commencement of a licensing round (concerning the delineation of blocks and the bidding process).79 What is striking is that the Lebanese government had expressed its intention to and has actually granted two concessions in the undelimited/disputed maritime area (Lebanese Blocks 8, 9, and 10 overlapping with Israeli Blocks 1, 2, and 3) (Figure 12.9).80 Inevitably, this prodded a reaction on the part of Israel which, recalling its 2011 List of Geographical Coordinates, objected to ‘non-consensual Lebanese economic activity in maritime areas belonging to Israel’ and called on Lebanon to

77

78

79 80

Meier (n 65) pp. 11–12; Darbouche et al. (n 66) 6; Chehaitli (n 69) 43, 70–72; ‘The LebaneseIsraeli Maritime Border Conflict Explained’ (Natural Gas Europe, 05 May 2014) last accessed 18 May 2018; ‘Cyprus offers mediation between Lebanon, Israel to solve undersea oil, gas dispute’ (Fox News, 03 December 2012) last accessed 18 May 2018. Abdel-Kader N, ‘Potential Conflict between Lebanon and Israel over Oil and Gas ­Resources  – A Lebanese Perspective’ (October 2011) last accessed 18 May 2018. Decree 42/2017 and Decree 43/2017 last accessed 18 May 2018. ‘On 26th of January 2017, the Minister of Energy and Water announced the following: 1. Based on a study completed by the Lebanese Petroleum Administration, the blocks that are open for bidding during the first licensing round are: blocks 1, 4, 8, 9 and 10.’ last accessed 18 May 2018; Lebanon granted licenses for blocks 4 and 9 Lebanese Petroleum Administration, ‘First Offshore Licensing Round Results’ (14 ­ December 2017) last accessed 18 May 2018.

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refrain from such actions. What is very interesting is that Israel ‘reiterate[d] its openness to dialogue and cooperation with the relevant neighbouring States regarding the northern limit of Israel’s Territorial Sea and Exclusive Economic Zone,’81 showing its willingness to resolve the dispute in a peaceful manner. Israel referenced ‘the principles of international maritime law’ and not to the losc. On the other hand, Lebanon repeated its view that Blocks 8, 9, and 10 (as designated by Lebanon) are located within the Lebanese eez, rejected the 2010 Israel-Cyprus eez delimitation, stressed that it has the right to perform ­hydrocarbon activities in the disputed maritime area, and restated its commitment to the losc provisions.82 It is worth mentioning, though, that the French oil company Total, which is one of the licensees of Lebanon's block 9, has declared that it will operate outside the undelimited/disputed area in an effort to defuse tension.83 Additionally, the Lebanese assertions in respect of the northern sector of its eez prompted war-torn Syria to protest stressing that this act is unilateral and is therefore not binding on Syria.84 Indeed, in the Fisheries case, the icj stressed that the declaration of a maritime zone (what the term ‘delimitation’ in the text of the decision probably meant) is a unilateral act. The icj added that the final determination of a maritime zone’s outer limit cannot depend solely on the will of the coastal state and should be made according to international law, namely by agreement as between the interested parties in order to be opposable to other states (‘external stability’).85 Nevertheless, there is no rule in international law precluding a state from setting the outer limits of its 81 82 83

84 85

Communication from the Permanent Mission of Israel to the United Nations transmitted to the Secretary-General on 2 February 2017. Communication from the Permanent Mission of Lebanon to the United Nations to the Secretary-General of the United Nations dated 20 March 2017. ‘Total strengthens its position in the Mediterranean region by entering two exploration blocks offshore Lebanon’ (Total, Press Release, 09 February 2018) last accessed 18 May 2018. Communication from the Permanent Representative of Syria transmitted to the SecretaryGeneral on 15 July 2015 last accessed 18 May 2018. Fisheries Case (United Kingdom v Norway) [1951] icj Rep 116, 132; on the distinction between determination of seaward limits and delimitation with other states see Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, itlos Reports 2012, p. 4, para 376; Marston G, ‘The Stability of Land and Sea Boundary Delimitations in International Law’ in Gerald H Blake (ed), Maritime Boundaries (Routledge 1994) 144, 157; on the difference between entitlement to maritime zones and delimitation see The ­Philippines v China (Award on Jurisdiction and Admissibility) [2015] para 156 last accessed 18 May 2018.

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maritime zones unilaterally, although such act may not be recognised by or produce any legal effect vis-à-vis any other state.86 4 Conclusion Even though maritime delimitation contributes towards stability, overlapping maritime claims and hostility between neighbouring states often stymie the conclusion of maritime delimitation agreements that would facilitate the carrying out of maritime activities. However, losc Articles 74(3) and 83(3) provide for a regulatory scheme covering state conduct in undelimited areas and impose obligations on the involved states in the absence of a delimitation, namely to negotiate so as to enter into provisional arrangements and to abstain from actions that could put a final agreement at risk. On any account, only claims made in good faith should be taken into consideration in order to define the relevant undelimited area, not excessive assertions. What is more, a scrutiny of the aforementioned provisions and of pertinent case law reveals that, under specific conditions, certain activities could be allowed in undelimited areas except for drilling (with the exception of Ghana/Côte d’Ivoire judgment). Notwithstanding the fact that eez delimitation agreements have been concluded in the East Med due to the desire of the regional states to benefit from the hydrocarbon bonanza, a significant segment of sea waters remains undelimited. Greece and Cyprus on the one hand and Turkey on the other spar over the maritime space lying between the Greek islands of the southeastern ­Aegean and Cyprus. Turkey does not recognise the capacity of islands to generate full maritime zones and claims the largest part of the said marine area. On their part, Lebanon and Israel have been embroiled in a maritime dispute following the signing of the 2010 eez delimitation agreement between Israel and Cyprus. Israel and Lebanon have set forth overlapping claims over a ­marine area of 850–860 km2. Bearing in mind that oil and gas activities will likely take place in these two undelimited areas in the near future, the fragile stability in the region is at stake. The only way to stave off conflict and strengthen the existing cooperative network is to observe the rules of international law ­addressing the matter.

86

Lathrop C G, ‘Baselines’ in Rothwell et al (n 30) 71.

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Figure 12.1

Maritime boundary delimitation agreements and Cyprus’s maritime claims in the Eastern Mediterranean Sea Source: Author’s personal archive.

Figure 12.2

Turkey’s alleged continental shelf maritime boundary with Egypt Source: Cagatay Erciyes (Turkish mfa), ‘Maritime Delimitation and Offshore Activities in the Eastern Mediterranean: Legal and Political Perspectives, Recent Developments’ 2012.

334

Figure 12.3

Ioannides

The disputed maritime area between Israel and Lebanon Source: Major General Abdul Rahman Chehaitli presentation, 08 June 2015.

Cyprus

Lebanon Point 1 Point 23 Disputed area

Israel & Palestine

Figure 12.4

The disputed maritime area between Israel and Lebanon Source: huffingtonpost.com based on a map produced by the Ministry of Energy and Water of Lebanon.

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Figure 12.5

335

Israeli concessions stop short of the disputed area Source: Israel, Ministry of National Infrastructures, Energy and Water Resources.

336

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Figure 12.6

Blocks abutting the disputed area Source: Colonel Konstantinos Stylianou.

Figure 12.7

Illustration of the proposal submitted by the US special coordinator for regional affairs in 2012 Source: Major General Abdul Rahman Chehaitli presentation, 08 June 2015.

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Figure 12.8

Delimitation lines proposed by the parties during negotiations Source: Major General Abdul Rahman Chehaitli presentation, 08 June 2015.

Figure 12.9

Lebanese offshore blocks Source: Lebanese Ministry of Energy and Water.

Index Advisory opinions International Court of Justice 115n83 International Tribunal for the Law of the Sea 17–20, 257 Aegean Sea Continental Shelf case 50, 315, 319, 324 Arbitral proceedings Arbitration Rules of 1976, un Commission on International Trade Law 103 confidentiality 140 Model Rules of Arbitral Procedure of 1958, International Law Commission 103 non-binding resolution 95 non-participation by a party 110 participation of non-parties 113 site visits 134n157 technical evidence or experts 121 uncitral Conciliation Rules 145, 145n197 uncitral Rules on Transparency 119, 119n102 Arbitral tribunals Annex vii 82, 110, 114, 116n87, 124, 128, 129, 140, 148, 149 Annex viii special arbitral tribunal 100 Areas beyond national jurisdiction Biological diversity in, Preparatory Committee 3, 254n4 Draft Regulations on the Exploitation of Mineral Resources in the Area 12, 25 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion 20–26 Association of Southeast Asian Nations (asean) 293 Barbados/Trinidad and Tobago case 229n18, 238, 238n61, 238n63, 318n30 Cameroon/Nigeria case 32 Chagos Marine Protected Area ­arbitration 5, 42, 42n42, 43n43, 137, 201, 225–253, 258–259n20, 259n21

Climate change 1, 1n2, 2, 5–7, 137, 138, 138n169, 138n173, 139, 139n174, 139n175, 140, 267n1, 267n2, 268n6, 269n9, 270n13, 270n14, 271n18, 272n21, 274, 274n30, 275n34, 276n37, 276n38, 282n67 Commission on the Limits of the Continental Shelf 12, 180, 189, 225 Compulsory conciliation (also Compulsory jurisdiction, Compulsory settlement) Conciliation Commission, Permanent Court of Arbitration 143n189 East Timor v Australia conciliation  91n190, 118n96 exceptions 100, 232 Lauterpacht, Sir Hersch 99 Part xv 104, 148 Permanent Court of Arbitration Optional Conciliation Rules 1996, 144, 144n193, 145 un Model Rules for use in inter-State conciliation 1995, 145 Convention on Biological Diversity 139, 200, 200n44, 259 Convention on the Continental Shelf (1958) 33n8, 179, 179n37 Convention on the Territorial Sea and the Contiguous Zone (1958) 33n8, 57, 57n8,  202, 202n60 Customary international law 23, 49, 52, 64, 87, 161n43, 165–168, 181, 186, 202, 218, 258n18, 263n51, 313n7, 314, 314n11, 317, 321n41, 322, 322n42 Cyprus 6, 34, 35, 35n15, 35n16, 51, 311, 311n1, 320–327, 327n65, 328, 328n70, 329, 330, 330n77, 332, 333 Delimitation 13, 32, 55, 100, 163, 173, 193, 229, 257, 311. See also Maritime delimitation Disaster risk reduction 2, 5–7, 268, 268n7, 271n19, 278, 280, 280n58, 283, 284n77, 285, 285n81, 288, 289, 289n6, 289n7, 305–307 Due diligence, principle of 261

340 Egypt 34, 39, 39n30, 311, 311n1, 333 Eritrea/Yemen case 78 Evidence 4, 38, 52, 62–65, 83–84, 87–90, 93–95, 105, 107, 111, 112, 120–122, 122n111, 123n112, 123n115, 124n116, 124n117, 125n119, 125n121, 126, 129n137, 132–134, 134n158, 135, 136, 149n204, 161n48, 164, 167, 194, 197, 202, 204, 205, 253, 270n15, 313n7, 323n44 Fish Stocks Agreement of 1995 (also referred to as unfsa) 238, 242n77, 248n94, 252 Freedom of navigation 15, 191n5, 218, 299n58, 300, 322n42 General principles of international law 186n66, 313n7, 321 Global Ocean Observing System (goos) 278, 278n51, 279n52, 280n58 Gulf of Maine case 70n83, 203n64, 207, 207n82, 314n11, 319n33 Guyana v Suriname case 316, 322n44 High seas 14, 41n37, 146n99, 146n200, 172, 181, 182, 185, 217, 232, 235, 242, 243, 243n82, 243n84, 244, 245, 245n90, 246, 247, 248n99, 249–253, 257, 258, 258n16, 273, 277n45, 300, 301, 322 Historic rights Chinese Law on the Exclusive Economic Zone and the Continental Shelf 210n108 Fisheries Case 1951, 185n57, 331n85 International Law Commission and 185 Illegal, unreported and unregulated (iuu) fishing 26–29 Responsibilities and obligations of States with Respect to activities in the Area 3,  20–26, 159n28 Indonesia 78, 90, 118, 141n180, 183, 190, 280, 291, 292, 292n21, 293 Insurance 136n165, 282, 282n62, 282n66, 282n67, 283, 283n68, 283n69, 284, 284n74, 288 International Court of Justice Corfu Channel 105n44, 133, 133n153 Gabcíkovo-Nagymaros Project 132, 132n152, 133, 159n31, 261

Index Maritime Delimitation in the ­Caribbean Sea and the Pacific Ocean 133, 133n154 North Sea Continental Shelf cases 31, 31n2, 55, 55n1, 215 Pulp Mills case 264 International Federation of Red Cross and Red Crescent Societies Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (idrl Guidelines) 295, 295n33 Model Act for the Facilitation and ­Regulation of International Disaster Relief and Initial Recovery Assistance 290,  290n11, 295n35, 297n47 International Law Commission 103, 103n39, 115, 115n83, 148, 185, 264, 288, 290, 305, 307n100, 307n101, 308n107, 308n108, 308n109, 308n110, 315n19, 322n44 Draft Articles on the Protection of Persons in the Event of Disasters 288,  290, 307–310 International Maritime Organization 6, 127, 189, 288, 298 Convention on Facilitation of ­International Maritime Traffic (fal Convention) 298 International Seabed Authority 3, 12, 25, 26, 169, 189 Legal and Technical Commission 20 International Tribunal for the Law of the Sea Advisory opinions 17–20, 257 Delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal 13, 13n4, 206n71 Land Reclamation case 16, 161, 168 mox Plant case 161, 161n44, 167 M/V “Louisa” 14, 14n11, 16n19, 162n53, 163n59, 317n27 M/V “saiga” 14, 15n12, 317n27, 325n58 M/V “Virginia G” 15, 15n13 Provisional measures 3, 15–16, 30, 106, 107n52, 108n55, 150–169, 200n46, 214, 219, 220n149, 249, 258n17, 314n10, 314n13, 317n24, 318n27, 323n45, 324 See also separate listing

341

Index Request for an advisory opinion submitted to the Tribunal by the Sub-Regional Fisheries Commission 26–30 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion 20–26, 159n28 Southern Bluefin Tuna cases 250n104, 258, 258n17, 264 Islands artificial 50, 80, 178–180, 210, 210n107, 216, 300 human habitation or economic life of their own 178 low-tide elevations, distinguish from 57, 61, 66, 67, 82, 83, 87, 94, 111, 202 rocks, distinguished from 82, 87, 111 Marine environment Chagos arbitration, and 42–44, 233, 236 Convention on Biological Diversity 139, 200, 200n44, 259 environmental impact assessments 23, 218 Espoo Convention on Environmental Impact Assessment in a Transboundary Context 1991, 263 Gabcíkovo-Nagymaros case, and 261 1971 Intergovernmental Working Group on Marine Pollution 255 Iron Rhine arbitration, and 137, 137n167 Obligation to protect and preserve 156, 218, 255–262, 266 Pulp Mills case, and 263, 263n48, 263n52, 263n53, 264 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, and 20–26 South China Sea arbitration, and 4, 5 1972 Stockholm Declaration 255 Marine protected areas (mpa) 5, 42, 42n42, 43n43, 102n33, 137, 201, 201n49, 225–253, 281 Marine scientific research 5, 127, 182, 183, 189, 268, 278, 280, 283, 300 Maritime delimitation Eastern Mediterranean Sea 311, 327n65, 333 equidistance 318

excessive claims 312 formula for 31, 31n1 good faith in 211, 332 hydrocarbon resources 71, 193n12, 209n102, 312n3, 324n49, 328n71 joint development agreements 6, 214, 215 provisional arrangements (or provisional boundary) 211, 219, 221, 332 straight baselines 171–174 Mediterranean Sea Aegean Sea Continental Shelf case 50 Greek and Cyprus 6, 35, 320–326 Greek and Turkey 34 Lebanon and Israel 329n76, 330n77 Military activities right of navigation 180–184, 300 right of overflight 300 Nicaragua/Colombia case 32, 54 Nicaragua/Honduras case 207 North Sea Continental Shelf cases 31, 31n2, 50n74, 52n79, 55, 55n1, 203n64, 215, 215n127, 215n128, 314n11 Ocean warming 270, 272, 273, 273n24, 274–277, 277n47, 278, 285 Permanent Court of Arbitration Antaris Solar et al v Czech Republic 138, 138n171 Arctic Sunrise 101n32, 106 Barbados v. Trinidada and ­Tobago 101n32, 102, 124 Bay of Bengal Maritime Boundary ­Arbitration 101n32, 102n33, 124 Beagle Channel Arbitration 132 Dogger Bank Case 97, 97n9, 142 Enrica Lexie Arbitration 141 French Postal Vessel “Manouba” 98n15 Grisbådarna 97, 130, 132 Guyana v Suriname 101n32, 102n33, 124 Hague Peace Conference of 1899 96 Indus Waters Kishenganga ­Arbitration 127, 130, 260n34 Iron Rhine Arbitration 137, 137n167 Military and Paramilitary Activities 105 Muscat Dhows 98

342

Index

Permanent Court of Arbitration (cont.) nafta, and 138 North Atlantic Coast Fisheries 97, 97n11 Norwegian Claims Case 98n13 Optional Rules for Arbitration of Disputes Relating to the Environment and/or Natural Resources, and 138, 139n176 The “Red Crusader” Incident Inquiry 98n14 The Steamship “Tiger” Inquiry 98n16 Timor Sea Conciliation 102n33 Windstream v Canada 138 Precautionary approach Ghana/Cote d’Ivoire 163–165 Land Reclamation case 161–162 mox Plant case 161, 161n44 M/V “Louisa” 162n53, 163n59 Southern Bluefin Tuna Cases 159–161 Provisional measures Aegean Sea Continental Shelf case 315, 319 Factortame case 151 Fisheries Jurisdiction case 155 LaGrand 155, 155n16 Nuclear Test Cases 155 primary of choice 275 Russia v Ukraine 156, 156n19 Serious harm to the marine environment, prevention of 154n14, 156–157 theory of 150 unclos and 150

South China Sea arbitration Award on Jurisdiction and Admissibility 44–47 1958 Declaration on China’s Territorial Sea 171 Human habitation or economic life of their own 58 Scarborough Reef (or Scarborough Shoal) 175 Spratly Islands 126 U-shaped line, or nine-dash line 187 Southern Bluefin Tuna Cases 16, 101, 159–161, 200n46, 250n104, 252n111, 258, 258n17, 264, 264n57 Southern Pacific Regional Fisheries ­Management Organization 146 Sovereign rights 15, 33n8, 35, 36, 37n21, 37n22, 44, 52n82, 62, 82, 106, 170, 183, 184, 209n103, 210n107, 229, 230, 232–237, 247–250, 277, 299, 300, 315, 319, 322, 326 Sovereignty 5, 31–54, 56, 57, 61–63, 66, 67, 69, 72, 80, 82, 83, 87, 88, 118, 170, 177, 185, 188, 194, 201, 203n65, 208, 209, 213, 226, 237, 239n66, 240, 257, 299, 314n10, 323, 329 Spratly Islands 80, 83, 87, 88, 92, 111, 120, 126, 127, 174, 194, 202 Sub-Regional Fisheries Commission Opinion 26–30 Sudan 39, 39n31, 40, 40n32, 134n116, 141n181

Qatar/Bahrain case 32, 203n64, 204n68, 207, 207n86

Third parties 4, 55–94

Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion 3, 20–26, 159n28 Scarborough Reef (or Scarborough Shoal) 175 Seabed Disputes Chamber 3, 17–26, 28, 154n14, 156, 158, 169, 261n37, 264n59 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion 3 Sendai Framework for Disaster Risk ­Reduction 6, 288, 305–307 Somalia 36, 36n19, 37

Ukraine vs Russian Federation case (Black Sea, Sea of Azov and Kerch Strait) 47–54 United Nations Convention on the Law of the Sea Annex vii 100, 100n30, 104n43, 127n128, 226, 228n11, 229n18, 230n19 Exclusive Economic Zone 106, 217, 230n19 Geneva Convention on the High Seas of 1958 217 History of 214 (See also Eiriksson’s preface) Part xv 42n42, 43, 95, 150, 201, 259n20 Pollution of the marine environment 16, 272

343

Index Third United Nations Conference on the Law of the Sea 170 United Nations General Assembly 144n192, 163n60, 227n8 United Nations Office for the Coordination of Humanitarian Affairs Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief (Oslo Guidelines) 295, 295n32

Use of force 13, 14, 49, 49n70, 180, 182n47, 191n5, 217, 317, 321, 321n37, 323n45, 325, 325n59, 326n61 Threat of 217, 321 Western Sahara 33, 37–39, 52, 53